jured party, or those who would naturally be aggrieved because of the wrongs complained of in the indictment, want the prosecution dismissed, change the situation. The prosecution is not for their benefit, but for the public good. While the party, who has suffered the immediate wrong at the hands of the accused, may be of material aid to the Commonwealth in imposing upon the accused the punishment, which his offense merits, she is without power to direct or control the prosecution, much less to have the court discontinue it." The court was in no way bound by the agreement made by appellee and the Commonwealth's Attorney. It had the power, notwithstanding the agreement, to compel a trial or continue the case, but was without power to compel the Commonwealth's Attorney to abide by the agrement in opposition to his own sense of official duty. Whether the latter's withdrawal from the agreement was justifiable was not a question for the court's decision, but one that the officer had a right to settle for himself, free of dictation from the court. If, as intimated in the brief of appellee's counsel, the agreement interfered with appellee's control of his witnesses, or caused the absence of some of them, the court should for that reason have continued the case until such time, as by reasonable diligence on the part of appellee, the attendance of the witnesses could be procured, or the depositions of such of them as are non-residents be taken. In our opinion the dismissal of the indictment was error, and for that reason the judgment is reversed and case remanded for a trial consistent with the opinion. Jefferson, et al. v. Callahan, et al. (Decided March 20, 1913.) Appeal from Jefferson Circuit Court Easements-Use by Public of Road for Fifteen Years-Burden-Permissive Use.-After the use by the public of a road, apparently as a right for fifteen years or more, the burden is on the property owner to show that the use was permissive; but where it appears that the use was permissive, no right is acquired although the use had existed for more than fifteen years. HUMPHREY, MIDDLETON & HUMPHREY for appellants. SAMUEL E. BLITZ and KOHN, BINGHAM, SLOSS & SPINDLE for appellees. OPINION OF THE COURT BY CHIEF JUSTICE HOBSON— Affirming. Appellants brought this suit in the Jefferson Circuit Court against appellees to enjoin them from closing a road which they claimed by prescription, and the circuit court having dismissed their petition, they seek on this appeal to reverse the judgment. The facts of the case are these: About the year 1876 a narrow gauge railroad was built from Louisville to Prospect, Kentucky, which ran through the farm of James Callahan, consisting of about 300 acres, four or five miles east of Louisville. The farm lay in part in the Ohio River bottom, and in part extended out on the hills. The railroad was built near the foot of the hills and a station was established, known as Callahan's Station, on the Callahan farm, near the road leading from his house out to the turnpike or river road. This station being within Callahan's farm was used mainly by Callahan and his tenants, and persons going to or from their houses. The trains regularly stopped at Callahan's Station, and vehicles met the trains there. Callahan opened a road known as the Mocking Bird Valley Road, which crossed the railroad 376 feet west of Callahan's Station. This road was opened on his farm to lead to a tenant's house, and for the use of the farm. Thus things stood until about the year 1899, when Callahan sold to one Gilmour the property which is now owned by Jefferson. Gilmour in the deed from Callahan was given the right to use the Callahan road leading from his house out to the turnpike. When Gilmour bought, a road had been made leading from the station along the line of the railroad down to the Mocking Bird Valley road, and he, from the time he bought the property in 1899, used this road when he needed it. The Jeffersons, after they bought from Gilmour, continued to use it until it was closed by the Cal- f lahins, when this suit followed. About five years ago, the county made the road known as Mocking Bird Valley road a county highway, from the river road to the Brownsboro pike, and after this was done, the electric railway, which had become the owner of the of the narrow gauge railroad, moved the station from its old position on the Callahan road, 376 feet west to the Mocking Bird Valley road, so that the station would be on the public highway, and since this has been done, Jefferson needs the road running from the old station to Mocking Bird Valley road to get to and from the station in a vehicle. The situation is shown on the accompanying map which we take from appellant's brief: As will be seen, the road in controversy is 376 feet long. Jefferson can go from the station by going down the Mocking Bird Valley road to the river road, and then up the river road 376 feet to the iron gate, and then up the Callahan road to his house, he having a right to the Callahan road under his deed. But this makes him go a half mile out of his way, as it is thirteen hundred feet from the car line to the river road. We have held in a umber of cases that where the public has used for fifteen years or more a road without let or hindrance, and apparently as a right the burden of proof is upon the property owner to show that the use was permissive; but we have also steadily held that where the use was permissive, no prescriptive right to it is acquired, although it may have been used fifteen years or more by the public. (Conyers v. Scott, 94 Ky., 123; Downing v. Benedict, 147 Ky., 8; Cahill v. Mangold, 151 Ky., 156; Driskill v. Morehead, 147 Ky., 107; Fightmaster v. Taylor, 147 Ky., 469.) We have read the record with great care; and reach the conclusion that the chancellor's judgment is supported by the weight of the evidence. The great weight of the evidence is to the effect that this road leading from the Callahan road to the Mocking Bird Valley road was opened by the Callahans for farm purposes, and that its use by the public was purely permissive. At the time the road was opened the Mocking Bird Valley road was also a mere farm road of the Callahans. The road crossed a creek and the bridge occasionally washed out. At one time it remained out nearly two years. The bridge was replaced by the Callahans for the convenience of the farm. The road was used primarily only by the Callahans and their tenants for many years, and we do not think that there was any adverse use of the road by any one certainly previous to the Gilmour purchase. Less than fifteen years has elapsed since that, and under all the facts we cannot disturb the chancellor's finding. There was such slight use by the public of the road in dispute previous to 1899 that it may very reasonably be concluded that the use was permissive. The fact is, there was little or no reason for the public to use this road until the Mocking Bird Valley road was made a county highway, and the station was moved from its old position to the county road. Jefferson himself had little use for it until then. This all occurred within the last five or six years. He has a station called Gilmour which is only some 200 feet from his house. But he can only reach that station on foot, as the hill is very steep, and this controversy is due entirely to the change of conditions brought about in the last five or six years. Judgment affirmed. Adams v. Louisville & Nashville Railroad Company. (Decided March 20, 1913.) Appeal from Fleming Circuit Court. Bring Irfants-Injury of-Loss of Services-Failure of Father to Action For-Mother Cannot Maintain Action After Death of Father. Where an infant son is injured, and his father, who was then living, brings no action to recover for loss of services, the mother cannot maintain an action for loss of services after the death of the father. C. B. MORFORD, B. S. GRANNIS for appellant. O. R. BRIGHT, BENJAMIN D. WARFIELD for appellee. OPINION OF THE COURT BY CHIEF JUSTICE HOBSON— Affirming. Eva Adams brought this suit against the Louisville & Nashville Railroad Company, alleging in her petition that her infant son, E. V. Adams, was injured by the negligence of the defendant's servants on April 25, 1910, and again on December 17, 1910, whereby she had lost his services; that her husband, Ollie Adams, was living at the time her son was injured, and that he died on February 7, 1911. She sought no recovery for the injury which occurred on December 17, 1910, or for the time elapsing from April 25, 1910, to February 7, 1911, the date of the death of her husband. The defendant demurred to the petition, its demurrer was sustained and the plaintiff declining to plead further, the petition was dismissed. We have heretofore sustained a recovery by the son for his injuries. (L. & N. R. R. Co. v. Adams, 148 Ky., 513.) The question presented now for determination is may the mother maintain an action to recover for the loss of services of the son after the death of the father, the injury having occurred on April 25, 1910, and the father having died on February 7, 1911? The son was born in the year 1892, and will not be of age until 1913. The precise question was before the Supreme Court of Georgia in King v. Southern R. R. Co., 8 L. R. A., N. S., 544. Refusing a recovery the court said: "If a right of action accrues at all on account of a personal injury, it arises immediately upon the occur |