author: MONTGOMERY, Judge.

text:
    Gail Powell CROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Blake Page, Winchester, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Gail Powell Crowe was convicted of voluntary manslaughter and sentenced to confinement for twenty-one years. On appeal she urges that the evidence is insufficient to support the verdict and the instructions were erroneous.

Appellant was charged with the murder of Shirley Turner at the Crowe Restaurant in Winchester on the night of August 28, 1965. Gail and her husband, Kenneth, operated the restaurant in which beer was sold. Shirley and her husband, Asbury, went to the restaurant about 8:20 p. m.

Kenneth Crowe served each of them a bottle of beer. After they started to drink the beer appellant went to their booth and questioned Shirley as to whether she was old enough to drink beer. Appellant picked up the beer and took it to the bar. She refused to refund the money paid for the beer. According to Asbury, he told his wife to wait until Kenneth came out of the rest room and he would refund the money.

Asbury testified further:

“Well, Kenny he comes back out, and I said to Kenny Crowe, I said, ‘Kenny,’ I said, ‘Gail won’t give our money back and she took our beer,’ and Kenny turned to Gail and said, ‘Gail, give their money back and tell them to get the hell out of here,’ so Shirley, my wife, turned to Gail and said, ‘Well, if you’re going to act that way about it,’ said, ‘I’ll just get a warrant for you selling the beer to under age.’ Gail said, ‘Go ahead, damn you,’ said, ‘I’ve had plenty more of them got.’ ”

He described the infliction of the death blow thus:

“Shirley throwed both hands up. Gail was walking up towards her, and Shirley throwed both hands up, but she never did tip her, and Gail come up overhanded and stabbed her with a knife.”

He said the weapon used was a pocket knife with about six inches of blade and that appellant had it under a belt around her midsection.

The conclusion of the difficulty was de-cribed by Asbury as follows:
“When she stabbed her, Shirley clung to me and said, ‘Oh, Daddy,’ put her hand up there and we walked out. Kenny had the gun on me and walking out behind me, and I told Kenny, I said, ‘Kenny, I’ll be back,’ and he said, ‘Come back any time you want to,’ said, ‘I’m waiting on you.’ ”

Carol Osborne testified that Shirley’s blouse was bloody as she passed by her on the way out of the restaurant. Shirley di^d about seven or eight minutes later from a stab wound about three to five inches above the right breast. Asbury testified that neither he nor his wife had made any threats or threatening gestures toward appellant or her husband. Some of appellant’s witnesses said Shirley had pulled Gail’s hair.

The appellant testified and introduced five witnesses. Four of these witnesses said that they did not see a knife or gun. Appellant’s husband, the fifth witness, testified that he did not see a knife but he admitted pulling a pistol on Asbury. Gail testified that she took the beer from the Turners and refunded their money. She told the Turners, “You all can leave.” She said she then turned, went back of the bar, and resumed drinking her beer. She denied that she stabbed Shirley and denied seeing her husband with a gun.

The testimony of Asbury Turner, corroborated in part by the testimony of other witnesses, shows that there was trouble in the restaurant, that Shirley received a fatal stab wound inflicted there by appellant, and that she was struck with a downward blow from an uplifted hand. Despite appellant’s argument that many other witnesses were present and none of them testified to seeing the knife, the evidence was sufficient to sustain the verdict. Bartley v. Commonwealth, 300 Ky. 152, 188 S.W.2d 102; Bolin v. Commonwealth, 303 Ky. 75, 196 S.W.2d 870; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981. It is the duty of the jury to pass on the credibility of witnesses and in doing so the jury may believe one witness rather than many witnesses. Jones v. Commonwealth, 307 Ky. 286, 210 S.W.2d 956. From a reading of the record here, one is convinced that the jury was justified in reaching its verdict.

Appellant contends that the usual instruction on self-defense, which was given, was not enough and that she should have had an instruction on self-defense while evicting a disturber from a place of public entertainment. It should be noted that appellant denied the killing, made no claim to self-defense, and made no objection to the instructions when given.

The contention is sought to be based on Stephens v. Commonwealth, 295 Ky. 542, 175 S.W.2d 5, and Davis v. Commonwealth, Ky., 252 S.W.2d 9. In Adams v. Commonwealth, 292 Ky. 786, 168 S.W.2d 40, cited in Stephens, it is pointed out that such an instruction may be given when one in the exercise of such force as is reasonably necessary kills another to prevent an intruder from forcibly entering or remaining in the defendant’s premises. In Harvey v. Commonwealth, Ky., 318 S.W.2d 868, under similar circumstances, denial of such an instruction was upheld because the usual self-defense instruction was considered sufficient. According to appellant’s testimony she did not use any force to evict the victim but went back of the bar to her beer. The stabbing of Shirley was the exercise of more force than was reasonably necessary to cause the Turners to leave the restaurant. There is no merit in the contention.

Judgment affirmed.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    Raymond Earl IRVIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Raymond Earl Irvin, pro se.
    Robert Matthews, Atty. Gen., Robert D. Preston, Asst. Atty. Gen., Frankfort, for appellee.
   WILLIAMS, Judge.

Appellant Raymond Earl Irvin filed a motion under RCr 11.42 in the Jefferson Circuit Court to vacate a judgment sentencing him to life imprisonment. His motion was overruled without a hearing and without counsel having been appointed to represent him.

Several grounds are raised by appellant which are technically unavailable to him under RCr 11.42. However, they would not afford him any relief on appeal or any other post-conviction procedure.

The first has to do with the introduction of evidence concerning prior convictions of felony under the habitual criminal statute. Appellant entered a plea of guilty and no proof was introduced against him; consequently, he cannot complain on this ground. We point out, however, that the practice under the habitual criminal statute has recently been approved in Jones v. Commonwealth, Ky., 401 S.W.2d 68 (1966), and Wilson v. Commonwealth, Ky., 403 S.W.2d 705 (1966).

Appellant was indicted for assault with a deadly weapon with intent to rob and eleven previous felony convictions. His argument that his rights were prejudiced because eleven convictions were charged when only two were necessary by statute is wholly refuted in McGill v. Commonwealth, Ky., 365 S.W.2d 470 (1963), wherein it was stated:

“ * * * This statute is to the effect that the Commonwealth prove only two felony convictions of appellant prior to the one of which he now stands convicted. Although this is the minimum which must be shown for the imposition of the extreme penalty authorized by KRS 431.190, there is no maximum limit placed on the number of prior felony convictions which may be established. * * * ”

In addition to the indictment under consideration here, appellant was also indicted for armed robbery. It is his contention that the two indictments, one for armed robbery and one containing the habitual criminal charge, were designed to and did frighten him into entering a plea of guilty. This argument can avail him naught because he was represented by counsel and was advised or could have been advised concerning his rights.

Another ground that the indictment was invalid simply does not fall within the scope of RCr 11.42.

The appellant argues that the habitual criminal charge could not increase the punishment meted out due to the fact the principal offense charged was a capital offense. He feels he was prejudiced thereby for the reason that the habitual criminal charge was made against him only for prejudicial purposes. Had he gone to trial, however, he could have been convicted of a lesser degree on the principal charge, in which case the penalty could have been augmented by the habitual criminal act. The same argument was answered in Smiddy v. Commonwealth, 287 Ky. 276, 152 S.W.2d 949 (1941), as follows:

“ * * * Counsel, however, appear to overlook the fact that under a murder charge the accused may be convicted of any of the lesser degrees of homicide, none of which are punished with life imprisonment or death and the punishment for which might be augmented to the extent prescribed by the habitual criminal act. If, therefore, the facts in the case brought the offense within any of those lower degrees the increased punishment prescribed by the habitual criminal act would become applicable, and it was not error to incorporate in the indictment the count charging former convictions, and likewise it was not error to introduce the record of them. * * * ”

Appellant’s motion showed on its face there was no valid ground for relief; consequently, the trial court did not err in dismissing the motion without a hearing.

The judgment is affirmed.


author: CULLEN, Commissioner.

text:
    William Donald BRADEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Lewis H. Nicholls, Greenup, for appellant.
    Robert Matthews, Atty. Gen., Frankfort, Jack Kibbey, Vanceburg, for appellee.
   CULLEN, Commissioner.

William Donald Braden was convicted of aiding and abetting Clifford Merritt in the armed robbery of one George Curry, and was sentenced to life imprisonment. Appealing from the judgment of conviction, Braden maintains that he should have had a directed verdict of acquittal and that the verdict is flagrantly against the evidence.

Around 9:30 a. m. on a day in September 196S, in the parking lot of a bank in Russell, Kentucky, Curry was accosted by a man carrying a gun and was robbed of some $15,000 in cash. Curry later identified Merritt as the man who robbed him. The evidence tending to establish Braden’s participation as an aider and abettor was as hereinafter stated.

Merritt and Braden left Toledo, Ohio, together in a green automobile at 1:00 a. m. on the morning of the robbery. Braden was acquainted with Curry, having worked for a contractor who did some repair work on Curry’s hardware store in Raceland, and had been in the store on various occasions. (This has significance since Curry’s visit to the bank in Russell was to obtain money with which to cash paychecks of railroad employes in Raceland, according to his regular custom.) Merritt did not know Curry and would not have known of the likelihood of his obtaining a large sum of money from the bank unless Braden imparted that information. A witness saw a man drive a green car out of the bank parking lot a few minutes after the robbery took place. Two men who knew Braden saw him on the street in Russell, at approximately the time of the robbery, only a few hundred yards from the bank. They offered him a ride to Raceland but he said he was going to the Y.M.C.A. in Russell. About ten minutes after the robbery the state police stopped a green car on the highway near Russell, being driven by Braden with Merritt as a passenger. Later the money taken from Curry was found over an embankment on a road that leads from Russell to the Y.M.C.A., a hundred yards or so from the bank parking lot.

In our opinion the evidence was sufficient to create a jury issue as to Braden’s guilt, and the verdict was not flagrantly against the evidence. Cf. Hoskins v. Commonwealth, Ky., 374 S.W.2d 839; Hendrickson v. Commonwealth, Ky., 259 S.W.2d 1.

The appellant contends that the trial court erred in not granting Braden a separate trial. There is no merit in this contention because there was no showing of any special factor of prejudice arising from the joint trial. See Hoskins v. Commonwealth, Ky., 374 S.W.2d 839.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    JONAS MILLER & SONS, Appellant, v. Norman RISNER and the Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    J. W. Craft, Jr., Craft & Haynes, Hazard, for appellant.
    Grayson Johnson, Clark Pratt, Hindman, for appellees.
   DAVIS, Commissioner.

The Workmen’s Compensation Board found appellee Norman Risner to be totally and permanently disabled as the result of work-connected injury, and awarded him maximum benefits. KRS 342.095. The Board’s award was affirmed upon appeal to the circuit court. The employer, Jonas Miller & Sons, appeals and presents two assignments of error: (1) there is no competent evidence of substance to sustain the finding of the Board, and (2) in any event the Board erred in failing to make the Special Fund a party pursuant to KRS 342.-005(2).

Appellee testified that he sustained an injury to his back when a heavy wrench he was using was allowed in some unexplained manner to slip or fall. The date of this incident was said to have been October 15th or 16th, 1964. There was no other witness who testified to having observed the injuring incident. Indeed, another employee of the appellant, the immediate superior of appellee, testified that no such incident occurred. The latter witness related that the appellee had said to him that he (appellee) had hurt his back, but did not think he had done so while working for the appellant. The same witness added that appellee had told him of having had an old back trouble which he suspected was “coming back on him.” The appellee denied making such statements, and denied that he had ever had any disabling back problem. He did admit that he had experienced what he thought to be some arthritis in his back, but said that he had never consulted a doctor about it, nor had he ever lost any time from work by reason thereof.

Appellee said that he had told his superior (witness Greene) that he had hurt himself, and Greene had said that he would report it. He is somewhat corroborated in this in that one of the employers brought appellee a paycheck and spoke of his having been injured on the job. The employer did not see fit to deny evidence of that episode.

Dr. David B. Stevens, a Lexington orthopedic surgeon, was the only medical witness. It appears that appellee first consulted Dr. Barker (who did not testify) on October 20th, 1964; Dr. Barker referred appellee to Dr. Martin (who did not-, testify) at Homeplace Hospital. Dr. Stevens also saw appellee at Homeplace Hospital prior to his examination of him at Lexington. Dr. Stevens testified that he had no recollection of appellee’s having told him that he had sustained the injury of which he now complains. He explained that his records do not reflect any notation of such information, although he usually makes notes of this type. Dr. Stevens also deposed that appellee had told him that ap-pellee had suffered pain in his back and neck for some substantial time before October, 1964, and that appellee had relinquished jobs in Paris, Kentucky, and Dayton, Ohio, on account of the pain in his neck and back. As previously noted, appel-lee specifically denied that he had lost any time from any employment on account of any such condition.

Dr. Stevens said that x-ray pictures of appellee reflected “some thinning of the intervertebral discs in the center part of the cervical spine.” The doctor diagnosed the condition as a “possible cervical syndrome, by that I mean a derangement of the cervical spine causing the symptoms.” A head halter traction device was provided for appellee by direction of Dr. Stevens. This medical witness stated that he found sufficient subjective evidence of pain as to indicate that appellee was disabled from performing hard manual labor. The doctor made no expression of his opinion as to the duration of the disability.

Addressing ourselves to the questions raised, we note that there is a direct conflict in the evidence touching (a) whether appellee sustained any injury on the job, and (b) whether appellee’s present disability is attributable in any part to a preexisting diseased condition. It is axiomatic that if evidence upon which a compensation order is based is relevant and substantial, the finding of the Board will not be disturbed. Eastern Coal Corporation v. Anderson, Ky., 399 S.W.2d 733, and cases there cited.

The appellant relies upon Huddleston v. Collins & Peace Coal Company, Ky., 335 S.W.2d 929, and Wells v. General Electric Company, Ky., 318 S.W.2d 865. In those cases, however, the Board had resolved the factual issue against the claimant. This court upheld the Board’s findings, using the familiar legal guideline just mentioned. In neither of the cited cases is there any support for the proposition that the court would have overturned the Board’s factual finding on disputed facts had the Board reached a different conclusion.

What we have just said disposes of both the points presented. There was relevant evidence of substance by which the Board could have been persuaded to the factual findings urged by appellant, but the Board’s contrary findings are supported by relevant evidence of substance. Hence there is no merit in either assignment of error.

The judgment is affirmed.


text:
    INTER-COUNTY RURAL ELECTRIC COOPERATIVE CORPORATION and East Kentucky Rural Electric Cooperative Corporation, Appellants, v. PUBLIC SERVICE COMMISSION of Kentucky and Kentucky Utilities Company, Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.

      Edgar C. Newlin, Danville, for Inter-County Rural Electric Cooperative Corp.
    Philip P. Ardery, Brown, Ardery, Todd & Dudley, Louisville, for East Ky. Rural Electric Cooperative Corp.
    Robert Matthews, Atty. Gen., Frankfort, for appellees.
    J. Gardner Ashcraft, Asst. Atty. Gen., Frankfort, for Public Service Commission.
    Malcolm Y. Marshall, Ogden, Robertson & Marshall, Louisville, for Kentucky Utilities Co.
   DAVIS, Commissioner.

The questions presented upon this appeal relate to a claimed right of appellant East Kentucky Rural Electric Cooperative Corporation (hereinafter East Kentucky) to Intervene in a proceeding before the Public Service Commission (hereinafter Commission). The precise nature of the issues raised on appeal will be better understood after a statement of the factual background.

Appellant Inter-County Rural Electric Cooperative Corporation (hereinafter Inter-County) is a rural electric distributing organization which sells and distributes electrical energy to consumers in certain areas of Marion and several other Kentucky counties. The appellee Kentucky Utilities Company (hereinafter KU) is a utility company which generates, transmits, sells and distributes electrical energy in numerous counties in Kentucky, including the counties served by Inter-County.

In the spring of 1965 a controversy arose between Inter-County and KU as to which of the companies was entitled to furnish energy to a manufacturing plant then being constructed near Lebanon. When the companies were unable to resolve this dispute, Inter-County filed its complaint before the Commission against KU. The complaint was filed May 1, 1965, and asserted the prior right of Inter-County to furnish the energy to the plant and averred that KU was improperly insisting upon its right to serve the customer. The basic relief sought by Inter-County was an order from the Commission authorizing Inter-County to furnish the service and denying KU the right to do so.

KU duly fjled answer to the complaint by which it joined issue and contended that it was properly serving the plant in question. The Commission set the matter for hearing on July 1, 1965.

Appellant East Kentucky had its counsel at the hearing on July 1st, and filed petition for permission to intervene. East Kentucky’s petition to intervene pointed out that East Kentucky is the wholesale ' power supplier of its member cooperative, Inter-County, and that the cost of power to Inter-County and to East Kentucky’s seventeen other member cooperatives is substantially affected by the relationship of East Kentucky and Inter-County. East Kentucky’s petition to intervene alleged that “ * * * the maintenance of integrity of Inter-County’s service area as well as the maintenance of the integrity of the service areas of all other member cooperatives of [East Kentucky] * * *” is a matter of vital importance in the cost of power and its rates and service to Inter-County and other member cooperatives. The petition to intervene contained this further language: “4. Because the decision of this Commission with respect to the service of the load mentioned in the pleadings herein filed will affect East Kentucky, it is appropriate as a party in interest and party intervenor herein.”

The Commission denied East Kentucky’s petition to intervene, and in doing so the Commission chairman stated from the bench to counsel for East Kentucky at the hearing of July 1st:

“All right, gentlemen. The motion to intervene is overruled. The petition to intervene is dismissed and for reason, I might state, so you will understand the thinking of the commission, is that your connection with this case is just too remote to the supplier. Now, we have no objection if Mr. Newlin [counsel for Inter-County] wanted you to be [of] assistance to him, and he wants you to be of assistance, why, of course, you are entitled to stay in the Court Room.”

No formal order was entered on July 1, 1965, denying the petition to intervene. In fact, the only order of the commission relating to that ruling appears in the Commission’s final order dismissing the complaint of Inter-County, entered August 25, 1965. In the latter order appears a recitation of the fact that the Commission had overruled East Kentucky’s petition to intervene on July 1, 1965.

When the Commission announced its ruling denying East Kentucky the right to intervene, counsel for Inter-County represented to the Commission that he was not in position to proceed with the hearing and requested a continuance. The matter was continued to September 2, 1965. Before that time, however, Inter-County advised the Commission that it could not proceed without the assistance of East Kentucky. Acting upon that advice, the Commission dismissed the complaint of Inter-County by order entered August 25, 1965.

On September 3, 1965, Inter-County and East Kentucky filed complaint in the Franklin Circuit Court, attacking the August 25th order of the Commission dismissing the complaint of Inter-County. The Commission was the only named defendant. KU moved for permission to intervene, and its motion was sustained. Subsequently judgment was entered by the Franklin Circuit Court dismissing the complaint of East Kentucky and Inter-County and adjudicating that the Commission’s order of August 25th, 1965, was valid. The appellants would upset that judgment on the grounds (1) that the Commission was required to permit East Kentucky to intervene, and (2) that KU was not entitled to intervene in the Franklin Circuit Court action.

KU insists that the question of whether East Kentucky should have been permitted to intervene before the Commission is not before this court. It is contended that since the Commission ruled on July 1, 1965, that East Kentucky could not intervene, it was incumbent on East Kentucky to attack that ruling by appropriate action in the Franklin Circuit Court within twenty days after being served with the order. KRS 278.410. KU insists that the action filed September 3, 1965, came too late to reach the Commission’s ruling of July 1st. This contention overlooks the fact that no order of the Commission was entered until August 25, 1965. The Commission speaks through its records, and announcement of a ruling orally cannot furnish basis for an appeal. See KRS 278.-360 and Union Light, Heat & Power Co. v. Public Service Commission, Ky., 271 S.W.2d 361; compare Bee’s Old Reliable Shows, Inc., v. Kentucky Power Co., Ky., 334 S.W.2d 765.

Since the court proceeding did make timely attack upon the Commission’s refusal to permit East Kentucky’s intervention, this appeal properly presents the question here. The scope of judicial review of any order of the Commission is fixed by KRS 278.410, which prescribes in part that a judicial attack may be made on a Commission order “ * * * on the ground that it is unlawful or unreasonable.”

Learned counsel for the parties litigant state that they have been unable to find any decision in this jurisdiction specifically touching the question at bar. The applicable regulation as published by the Commission recites:

“In any formal proceeding, any corporation, association, body politic or person authorized by law to become a party to a proceeding before the Commission, may by timely motion request that he or it be granted leave to intervene. The motion shall set forth the grounds for the request, including the status and interest of the movant. If the Commission, after opportunity has been given to the party or parties to such proceeding to be heard on such intervention, be of the opinion that the movant is entitled to be made a party, it shall so order. Leave thus granted will entitle the in-tervenor to have notice of and to appear at the taking of testimony, to produce and cross-examine witnesses and to be heard in person or by counsel in the proceeding.”

It will be seen that the regulation reposes in the Commission the responsibility for the exercise of a sound discretion in the matter of affording permission to intervene. Intervention as a matter of right is not specifically defined in the regulation.

Appellants suggest that the spirit of CR 24.01 should be applied, whether the civil rules may be thought to pertain to administrative bodies or not. CR 24.01 sets out the bases upon which intervention shall be permitted as a matter of right in court actions. A short answer to the contention is that even if CR 24.01 applied to proceedings before the Commission (which it does not) there is still no showing of intervention as a matter of right. It is obvious that no statute gives East Kentucky a right to intervene; there was no claim made that the representation of East Kentucky’s interest by Inter-County would or might be inadequate; by no stretch of reasoning could it be thought that any ruling of the Commission could be equated with “ * * a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.” CR 24.01.

Neither is there merit in the contention that the Commission abused its discretion by denying permissive intervention. Cf. CR 24.02, which relates to permissive intervention in civil actions (not proceedings before administrative bodies). It will be recalled that the Commission had offered to permit East Kentucky’s counsel to “assist” counsel for Inter-County. The hearing looking toward disposition of the controversy on the merits would have related to the dispute between Inter-County and KU. Any evidence and technical assistance which East Kentucky considered vital could easily have been made available to Inter-County and presented to the Commission. We agree that the interest of East Kentucky was “just too remote,” as stated by the Commission. Cf. Scott v. Williamson, 237 Ky. 746, 36 S.W.2d 360; 39 Am. Jur., Parties, Sec. 61.

We have considered the authorities presented in brief for appellants, but do not find them persuasive or controlling. It would unduly lengthen this already long opinion to undertake a detailed analysis of them.

We think it is plain that no error was committed in permitting KU to intervene in the Franklin Circuit Court action. Of course KU would be bound by the court’s judgment, since the court was adjudicating a Commission order in a proceeding in which KU was the only named defending party. The “inadequacy” of representation envisioned by CR 24.01 includes the type of situation we have at bar. It is true that the Commission was properly named as defendant in the court proceeding. KRS 278.410(1). The volume of appeals to the court, along with the technical nature of the matters involved, would make it impracticable for the Commission to “adequately” afford representation in such appeals. In any event, there is a complete absence of suggestion that KU’s intervention below resulted in any prejudice 'to the rights of either of the appellants. This matter was adjudicated below upon the record made before the Commission; there is no reason to suppose that the trial judge would have reached an opposite result absent KU. Thus there is no showing of prejudice. CR 61.01.

The judgment is affirmed.


author: MOREMEN, Judge.

text:
    Samuel STACY, Petitioner, v. Hon. Ervine TURNER, Judge Powell Circuit Court, Stanton, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Samuel Stacy, pro se.
   MOREMEN, Judge.

Petitioner Samuel Stacy, now imprisoned at the Eddyville Prison, on June 22, 1966, filed a motion to vacate judgment of conviction under RCr 11.42. On August 3, 1966, he filed an original action in this Court in which he states that the Hon. Ervine Turner, Judge of the Powell Circuit Court, has failed to act upon that motion and he seeks an order directing respondent to hear and dispose of it.

Respondent was duly notified of this proceeding, but has not made any response to the petition although response was due within ten days of the date of the filing of the petition. RCA 1.420. The allegations of the petition therefore must be treated as being confessed. Wahl v. Simpson, Ky., 385 S.W.2d 171; and Moore v. Pound, Ky., 390 S.W.2d 159.

The petition for mandamus is sustained and respondent is directed to dispose of the RCr 11.42 motion by appropriate proceedings.


text:
    Neville Parker MATTHEWS, Petitioner, v. Dr. Dale FARABEE, Commissioner, Kentucky Department of Mental Health, Respondent.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.

      Neville Parker Matthews, pro se.
    Lloyd R. Cress, Asst. Atty. Gen., Robert Matthews, Atty. Gen., for respondent.
   MOREMEN, Judge.

This is an original action in which Nev-ille Matthews seeks a writ of mandamus to require “Dr. Dale Farabee to have the Central State Hospital, Lakeland, Kentucky, to issue Medical Records to the Clerk of Lyon Circuit Court, Eddyville, Kentucky, dating from 1952 to 1965.”

Matthews alleges that he now has pending in the Lyon Circuit Court a petition for a writ of habeas corpus and that his medical records are necessary to prove his contention that at the time of the trial he was insane. The Lyon Circuit Court has sufficient power to coerce the production of such records if they are necessary to the trial of the case.

In any event, the power of this Court, under § 110 of the Constitution to give relief in the nature of mandamus or prohibition, can be exercised only against judicial officers. Actions against other officers must be brought in an appropriate court of general jurisdiction. Turner v. Department of Parole and Probation, Ky., 394 S.W.2d 889.

Mandamus is denied.


text:
    HIGHLAND ROOFING & SHEET METAL COMPANY, Appellant, v. Jack D. HELMS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.

      Bill V. Seiller, Jones, Ewen, MacKenzie & Peden, Louisville, for appellant.
    John E. Wise, Louisville, for appellee.
   DAVIS, Commissioner.

The Workmen’s Compensation Board made an award allowing appellee Jack D. Helms to recover compensation based on temporary, total disability for 74 weeks, and 25% permanent, partial disability for a period of 326 weeks, plus the medical allowances permitted by statute. Upon appeal to the circuit court by the injured employee Helms, a judgment was entered setting aside the Board’s award and directing the Board to make an award based on total, permanent disability. The employer seeks to reverse that ruling of the circuit court on the ground that the evidence before the Board was not so conclusive as to require a finding of total, permanent disability, but warranted the Board’s finding.

Appellee had been working for appellant as a roofer’s helper for about three weeks when he fell and was seriously injured. The accident was work-connected and occurred November 1, 1962. There was a comminuted fracture of appellee’s left ankle. After extensive treatment it was found necessary to perform a bone fusion at the site of the injury. The testimony of all the doctors reflects that appellee will never be able to function as a roofer’s helper. It was explained by the medical evidence that the limitation of motion in ap-pellee’s injured ankle would make it dangerous for him to -work as a roofer’s helper or at any other occupation requiring him to climb or work above ground level.

There was medical testimony that appel-lee could perform some types of manual labor, and that his disability rating is 25% to the body as a whole. The Board accepted the testimony of the medical witnesses who rated appellee’s permanent disability at 25%.

The trial court delivered an opinion incident to setting aside the Board’s award. In the opinion the court laid stress on the record’s revelation that appellee will never be able to perform roofing work. It seems fair to say that the trial court’s thesis of the case is summarized in this excerpt from the opinion of the court:

“In the within case there is no room for a reasonable difference of opinion. Every physician who testified on the question unequivocally testified Helms would never be able to work as a roofer.”

As noted, the record supports that statement of the trial court. The critical question, however, is whether the same record warrants the determination that the “occupational classification” of appellee was “roofer” or “roofer’s helper” — or either.

The following summary of appellee’s work experience and training is evolved from his testimony, and is not disputed. Appellee, age 28 at the time of the accident, completed only six grades of elementary school. He is married and is the father of four children. Helms had been engaged as a roofer’s helper for about three weeks before the accident occurred. When asked by his counsel to relate the nature of his general employment throughout the years he responded: “It’s laboring, just labor.” Prior to the accident appellee had worked in various capacities, including jobs as a laborer in a chemical plant, in the Texas oil fields, as a window-washer, and as a one-man roof contractor. Since the accident he has worked for a friend doing some painting; he has done cleaning and repair work in a firecracker stand, and when he testified (July 30, 1964) he had a job with the city of Wichita Falls, Texas, driving a pick-up truck. He related that prior to obtaining the last mentioned employment he was required to submit to a physical examination, and that his record had been flagged with the notation that he was “ * * * to do light work and have little walking.” He was earning $221 per month, working 40 hours per week, in his city job.

The trial court considered our opinion in Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, as bolstered by Methodist Hospital of Kentucky v. Ratliff, Ky., 391 S.W.2d 676, as dispositive of this litigation. Russell Construction Co. v. Workmen’s Compensation Board, Ky., 397 S.W.2d 357, is called to our attention by appellee as additional authority to sustain the judgment of the trial court.

The fundamental tenet of those decisions, and others which are cited in them, is that an employee is deemed to be totally, permanently disabled “ * * * if '[the workman] is totally disabled from the performance of work in his former occupational classification and his capacity to perform other kinds of work is impaired '* * Leep v. Kentucky State Police, Ky., 366 S.W.2d 729, 730; E. & L. Transport Co. v. Hayes, Ky., 341 S.W.2d 240, 241, 84 A.L.R.2d 1102. It must not be overlooked that the rule relates to the workman’s disability to perform work in his “former occupational classification,” coupled with an impairment of his ability to perform other kinds of work. The record before us supports the finding that the “former occupational classification” of appellee was as a general laborer. The record does not sup-' port the proposition that his former occupational classification was “roofer,” or "roofer’s helper.” It is true that he had engaged in those activities, albeit very briefly. It is likewise true that he had engaged in totally unrelated activities, all of which properly fall within the scope of general labor. In this state of case, the Board was warranted in finding that the ap-pellee has sustained a partial impairment of his ability to perform in his general classification as a general laborer — not a total disability for work in that occupational classification. This view of the case is buttressed by evidence that appellee has, and continues to engage in general labor types of activity since the injury. See Hopkins v. Wiscombe Southern Painting Company, Ky., 402 S.W.2d 690, and Everidge v. Nickells Coal Company, Ky., 394 S.W.2d 449, as typical decisions upholding the proposition that the term “occupational classification” is not to be so narrowly restricted as was done by the trial court.

It follows, therefore, that the Board’s award was based upon reliable, probative, and material evidence in the record and the trial court was in error in vitiating the Board’s award. KRS 342.285.

The judgment is reversed with direction to enter a new judgment affirming the award of the Workmen’s Compensation Board.


text:
    Paul CHILDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.

      G. C. Perry, III, Paintsville, for appellant.
    Robert Matthews, Atty. Gen., David Mur-rell, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WILLIAMS, Judge.

Appellant Paul Childers was convicted in the Johnson Circuit Court of possessing alcoholic beverages for the purpose of sale in local option territory. The punishment imposed was one year in the State penitentiary.

Evidence obtained as a result of a search was introduced at the trial. The pertinent portion of the affidavit upon which a search warrant was based is as follows:

“The affiant, C. A. Flanery, whose post office address is Martin, Floyd County, State of Kentucky, states that he is a state ABC agent and that he has reasonable grounds to believe, and does believe, that intoxicating liquors are being sold, manufactured, disposed of or illegally possessed in a house, building or premises owned and controlled by Paul D. Childers and located and described as follows: Third house on the right at Dicey Fork. Dicey Fork is the first on the right traveling east on KY 40, just west of Meally, Ky. Said house is a white frame house approximately four or five rooms with a front porch. A number of junked vehicles on the premises. That he bases the foregoing affidavit and his belief and grounds for same upon the following facts and the following reasons:
“He bought six cans of Blue Ribbon beer on May 14, 1965.”

It will be noted that the affidavit failed to state from whom the beer was purchased, or where it was purchased. In Turner v. Commonwealth, Ky., 328 S.W.2d 413 (1959), a similar affidavit was before this Court, except it went further and stated from whom beer was purchased. Therein it was pointed out:

“ * * * The affidavit discloses that the affiant did not state where he purchased beer from Turner; that is, he did not say he bought it at Turner’s home or in Jackson County or at any other place. Specifically, the affidavit fails to state that the affiant acquired the beer in question at the premises to be searched.
“It is, therefore, apparent that the affidavit for the issuance of the search warrant for Turner’s home is fatally defective in the particulars mentioned. * * *

The affidavit in question here is even less specific than the one referred to in the Turner case. It merely states, “He bought six cans of Blue Ribbon beer on May 14, 1965.” It is apparent the affidavit is fatally defective.

The judgment is reversed.


text:
    Orville Lee MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    J. Robert Brown, Louisville, for appellant.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WILLIAMS, Judge.

This is the second appeal from a judgment overruling Orville Lee Moore’s motion under RCr 11.42 to vacate the judgment under which he is serving a life sentence for armed robbery. On the Erst appeal we directed the circuit court to grant Moore a hearing with counsel on the question whether he did in fact have counsel at his trial. Moore v. Commonwealth, Ky., 394 S.W.2d 931 (1965). Moore was granted a second hearing with counsel, proof was taken and judgment entered from which he appeals.

The sole question for determination on the second hearing was whether Moore had counsel at his trial. Moore testified he had none and his sister supported his testimony. On the other side is the judgment which recites that Moore was brought into court and that he had counsel. This fact was noted in our first opinion. In addition, it was brought out in the second hearing that the name Thiemann appears on the indictment adjacent to Orville Lee Moore’s name; that the practice of the trial court in 1952 was to list only the last name of counsel on the indictment; that Leo Thiemann in 1952 was an active practicing attorney in the criminal court; that the Commonwealth Attorney’s records indicate that Thiemann was counsel for Moore; and that, according to the attorneys and police officers who testified, there had never been an instance to their knowledge where an accused was tried without counsel in a case similar to this.

As we said in the first opinion, mere unsupported allegations of lack of counsel will not be permitted to contradict plain, unambiguous court records. It was shown that the court records which were introduced were prepared in the manner which was customary at that time, and that the custom was to list the last name of the attorney who represented the defendant.

In the case of Brown v. Commonwealth, Ky., 396 S.W.2d 773 (1965), an almost identical set of circumstances was presented. There the order of the court recited the accused appeared with counsel and the indictment listed the last name of an attorney on the back. We said:

“It may be safely stated that the dignity and majesty of public records increase with age, and the longer the period of time elapsing between their date and the time validity is questioned the greater the dignity, so that after the passage of a sufficient period of time such public records may become absolute and unassailable.”

The introduction of public records, plus the testimony of officers of the court, presented sufficient proof to sustain the judgment of the circuit court.

The judgment is affirmed.


text:
    Jacob Carl ODEWAHN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Jacob Carl Odewahn, pro se.
    Robert Matthews, Atty. Gen., H. N. Mc-Tyeire, Asst. Atty. Gen., Frankfort, for ap-pellee.
   WILLIAMS, Judge.

Jacob Carl Odewahn appeals from a judgment of the Jefferson Circuit Court overruling his RCr 11.42 motion to vacate a judgment sentencing him to life imprisonment. His grounds are that his attorney failed to file a motion for a new trial although he had been requested to do so, and that his attorney failed to perfect an appeal.

This is the second RCr 11.42 motion which this appellant has filed in the Jefferson Circuit Court. (See Odewahn v. Ropke, Ky., 385 S.W.2d 163 (1964). The first motion did not include the grounds that his attorney had failed to file a motion for a new trial or perfect an appeal. Consequently, he is precluded from asserting those grounds on a second motion. Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (1966); Walker v. Wingo, Ky., 398 S.W.2d 885 (1966).

There is no merit to appellant’s argument in any event since the judgment of the court shows a motion for a new trial was overruled, and since his motion to vacate does not indicate that he requested his attorney to file an appeal. Benoit v. Commonwealth, Ky., 402 S.W.2d 706 (1966).

The judgment is affirmed.


text:
    Charles Leroy HAMM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    Charles Leroy Hamm, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst. Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

The appeal is from an order overruling, without a hearing, a motion by appellant under RCr 11.42 to vacate a judgment of October 1956 under which he was given a life sentence as an habitual criminal.

The sole ground of attack on the judgment is that the procedure under which the jury was given evidence of the prior convictions of the defendant before it made its determination of guilt or innocence of the current offense charged, and even before any evidence was offered on the current offense (which procedure is permitted under the Habitual Criminal Act, KRS 431.-190), violated the defendant’s right to a fair trial and denied him due process. Under our decisions in Jones v. Commonwealth, Ky., 401 S.W.2d 68, and Wilson v. Commonwealth, Ky., 403 S.W.2d 705, this ground is not sustainable.

Since there was no issue of fact and since the ground stated in the motion was not sufficient to invalidate the judgment, the mov-ant was not entitled to a hearing or to counsel.

The judgment is affirmed.


author: HILL, Judge.

text:
    Paul M. SMITH, Appellant, v. Vernon HOWARD et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.

      Robert S. Miller, Miller, Griffin & Marks, Lexington, for appellant.
    Edward A. Marye, Jr., Versailles, for appellees.
   HILL, Judge.

The judgment from which this appeal is prosecuted upheld the action of the Building Inspector and the Board of Adjustment of the City of Versailles denying appellant Paul M. Smith the right to continue using his property under a nonconforming use provision of the zoning ordinance of the City.

It is provided in a zoning ordinance passed November 1, 1955, for the City of Versailles that:

“Any use of land or structure existing at the time of enactment or subsequent amendment of this ordinance, but not in conformity with its provisions, may be continued with the following limitations.
“33.3 No non-conforming use may be reestablished after it has been discontinued for one year. Vacating of premises or building or nonoperative status shall be evidence of a discontinued use.”

The ordinance follows KRS 100.069 pertaining to “nonconforming” uses of property within the zoned territory.

Since about 1940 appellant, or his predecessor in title, has either operated or leased the property involved herein, located at 161 Virginia Avenue, Versailles, Kentucky, for light manufacturing activities. The business conducted on the property from 1940 to 1960 involved the reconstruction and repair of tractors.

Following the termination of the tractor repair and reconstruction business in 1960, the building and premises were leased to a plumbing supply business, which was perhaps a little less noisy in activity. This business continued until September 1961. During the occupancy of the plumbing supply business, a part of the property was used by the Woodford Manufacturing Company.

During the last half of July 1962, the East Side Screw Company leased and occupied the property. It is the use by the screw company that has been denied by ap-pellees.

Appellant takes the position the “nonconforming” use has not been discontinued, while appellees argue the converse. Appel-lees say the change of the use is unauthorized and that appellant should be estopped tó continue the “nonconforming” use of the property by reason of a letter from appellant to appellees concerning permission for the lease to the screw company.

In Darlington v. Board of Councilmen of City of Frankfort, 282 Ky. 778, 140 S.W.2d 392 (1940), this court said:

“It would seem, therefore, that the right to utilize one’s property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes ‘vested’ within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.”

The right of appellant to continue the use of his property as it was being operated at the time of the enactment of the zoning ordinance in question is a “vested” property right protected by law.

Now to the question of whether that right has been lost by the discontinuation of the business for one year as stated in the zoning ordinance.

Zoning ordinances containing provisions in derogation of common law property rights are strictly construed. Rathkopf’s Law of Zoning and Planning, volume 1, chapter 8, section 1.

What is meant by: “Discontinued for one year?” Appellees contend that cessation of the activities of the business for three hundred sixty-five days constitutes a discontinuation “for one year” within the meaning of the ordinance. Appellant argues there must be not only an overt discontinuation of activities but some evidence of intention to discontinue. The ordinance provides that “vacation of premises or building or non-operative status shall be evidence of discontinued use.”

We conclude that the discontinuation of use sufficient to forfeit a nonconforming use must either be intentional or fraught with such lack of diligence as to amount to an abandonment for the required period.

It is written in Rathkopf’s Law of Zoning and Planning, volume 2, chapter 61, section 5, that:

“A temporary cessation, even for a lengthy period, caused by circumstances over which the property owner had no control, is generally held not to constitute proof of a discontinuance in the sense of abandonment within the meaning of zoning ordinance provisions since the circumstances themselves negate an inference of the necessary intention to abandon the use.
* * * * * *
“Similarly, where there is a period of non-use because of the financial inability of the owner to continue in business or to find a tenant desirous of using the premises for a purpose permissible as a non-conforming use the requisite intent to abandon is lacking, and the right to resume the non-conforming use when opportunity presents itself is not lost.”

In the present case, the record indicates appellant exercised due diligence to lease his property. There is no evidence of an intention to abandon it. The business of the last lessee was less obnoxious than the one operated at the time of the adoption of the ordinance, although both are considered by the litigants and by this court as light industry.

It is concluded appellant did not forfeit his right to continue the “nonconforming” use of his property by his inability to lease it for approximately one year.

Appellees rely heavily on City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1 (1960). Appellant also cites Miller. In the Miller case, the original use involved the “display, storage and delivery of furnaces,” but the owner sought to change the use to “storage of plumbing fixtures and sheet metal business.” In concluding that the sheet metal business was an unauthorized extension of the “nonconforming” use, this court said: “The sheet metal business, however, is something entirely different.”

Before leaving the Miller case, it may not be too burdensome to also quote the following :

“It is well recognized that a temporary vacancy or nonuser of the premises without evidence of an intention to abandon the non-conforming use does not extinguish it. See Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984; and cases discussed in 114 A.L.R. 991.”

Appellees contend that change from tractor and plumbing business to the screw business constituted an unauthorized change of the nonconforming use under section 33.4 of the ordinance, which is as follows: “No non-conforming use may be changed to any other use except one which is a permitted use in the district in which it is located.”

This section of the ordinance is an unauthorized limitation on the rights conferred by KRS 100.069 and KRS 100.854. The former statute provides:

“The use of a building or structure existing at the time of the adoption of any zoning regulation or restriction, or at the time of any adjustment or revision thereof or amendment thereto, although such use does not conform to the provisions of such new regulations or restrictions, may be continued, and a nonconforming use of a building or structure may be changed to another nonconforming use of the same or more restricted classification.” (Our emphasis.)

The phrase “more restricted classification” within the meaning of the above statute is synonymous with “less objectionable” or “less obnoxious.”

The judgment appealed from did not find the use by the screw company to be more or less restricted or more or less obnoxious. It only found the change to be “one that was not permitted under the zoning ordinance.”

By necessity, therefore, we must examine the findings of fact by the Board to determine whether the use by the screw company is “more restricted” or “less obnoxious.” We need not go further than to quote the following paragraph of the Board’s findings:

“The business of the East Side Screw Products Company is classified ‘light industry’ by the witnesses. The noise level is low. The manufactured products can easily be held in the palm of your hand. The evidence shows that, as a practical matter, the present use by East Side Screw Products Company is no more obnoxious than its former uses.” (Our emphasis.)

We find the use by the screw company to be less obnoxious and more restricted within the meaning of KRS 100.060. Therefore, there was no forfeiture of the nonconforming use due to change of the use.

In a letter dated July 27, 1962, appellant wrote the Zoning Commission asking for permission to lease his property to the screw company, the last two paragraphs of which we quote:

“It is my understanding that this manufacturing firm will locate in Versailles permanently only if they can lease a building here now suitable for their needs until they can get a new building built here on a tract of land on which they now hold an option.
“It is in the interest of helping industry to locate in Versailles that I am making my building available to them and that I ask this permission of the Zoning Board, and I will not use the permission or this occupancy of the building in any way as an excuse for the continued use or rezoning of this building.”

Appellees contend that by reason of the contents of this letter and their verbal permission for the screw company to occupy the premises for “one year” the appellant should now be estopped to claim the continued nonconforming use of his property. With this contention we cannot agree. Having concluded that at the time this letter was written appellant had a vested right to enjoy the nonconforming use of his property, the representations contained in his letter being without consideration did not amount to an estoppel.

The essential elements of equitable estoppel are found in 19 Am.Jur., Estoppel, section 42, page 642. They are:

“(1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially.”

Certainly it cannot be said that the third element of the above definition of equitable estoppel is present in this case. The Board took no action as a result of the letter, which was of “such character as to change its position prejudicially.”

In his zeal to keep his nonconforming use, and perhaps with some fear of the power of the city fathers and of the rapidly developing zoning laws, appellant sought permission to continue his use by a gratuitous assertion he would not ask for an extension. In so- doing, he was not estopped.

The judgment is reversed with directions to enter judgment consistent herewith.


author: STEWART, Judge.

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. Jesse C. CARTER and Rose D. Carter, His Wife, Metropolitan Life Insurance Company, Mortgagee, National Bank of Hustonville, Mortgagee, W. G. Murphy, Lienholder, Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.

      Robert F. Matthews, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellant.
    Cabell D. Francis, Stanford, for appel-lees.
   STEWART, Judge.

This is a proceeding wherein the Commonwealth of Kentucky, Department of Highways, in order to reconstruct and relocate a portion of Kentucky Highway 78 in Lincoln County, condemned farm land of Jesse C. Carter and his wife, Rose D. Carter, comprising 1.66 acres for right of way, .32 acre for a permanent easement and .02 acre for a temporary easement. The land acquired included a portion of the right of way of the existing highway which the Carters did not previously own in fee simple. This farm, located approximately three miles east of Hustonville and seven miles west of Stanford, prior to this litigation contained 154.5 acres, 141 acres of which were on the north and 13.5 acres of which were on the south side of the highway before it was reconstructed. The following improvements were located on the land acquired: A gas station or tool implement building on the tract south of the old highway, 85 rods of fence on the west side of the farm north of the old highway, and two shade trees, some steps and a section of concrete walk on the yard in front of the dwelling.

Three witnesses for the Commonwealth estimated the difference in the before and after value of the farm, as a result of the taking, at $1500, $1550 and $1700. Seven witnesses for the landowners fixed this same difference as high as $7000 and as low as $4117. The jury returned a verdict of $5000 in favor of the landowners for “damages and property taken.”

The Commonwealth has appealed, contending prejudicial errors were committed because: (a) The majority of the landowners’ witnesses (four in number) in their appraisals were allowed, over the Commonwealth’s objection, to employ the “price tag” method, namely, value separately the “damage” items in the taking and then subtract the total of these from the estimates they had arrived at before the taking; (b) counsel for the landowners, over the objection of the Commonwealth, was allowed to emphasize repeatedly the refusal of Commonwealth’s witnesses to isolate and price each of the claimed factors of damage; and (c) the verdict of the jury is contrary to law.

Four evaluation witnesses of the landowners frankly admitted that, in placing an estimate on the property condemned, they had separately computed the various elements involved in the taking and then deducted the total of these from the amounts they had fixed for the value of the land before its acquisition.

In Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844, this court pointed out that to permit the attribution of separate prices to the items included in the condemning of a tract of land is an erroneous standard by which to measure damages, because “it results in valuations based on costs of restoration or on vague considerations of the harm that has been done to the particular owner in his particular use of the property.”

It was determined in Commonwealth, Dept. of Highways v. Stamper, Ky., 345 S.W.2d 640, that improvements to land should be considered in a condemnation proceeding only to the extent that they enhance its value and that it is proper for witnesses to testify only as to the character and condition of the improvements. In that same opinion it was said on page 643: “In speaking of ‘improvements’ in this discussion we mean major structures and not such things as shade trees, wells, septic tanks or small outbuildings that are merely incidental to the use of a major structure. Evidence as to the cost of such items is not admissible as bearing on the value of the land taken. * * * ”

The proper procedure for estimating the diminished market value of land in a condemnation proceeding was thus stated in Commonwealth, Dept. of Highways v. Mann, Ky., 387 S.W.2d 848: “The correct method is to ascertain the fair market value of what is or will be left after the taking and subtract it from the value of the whole property as it stood prior to the taking.”

Counsel for the landowners, in cross-examining the Commonwealth’s witnesses, sought persistently to compel each Commonwealth witness, after he had testified to the difference in the market value of the landowners’ property before and after the taking, to break down and price each of the various elements he had considered in his appraisal. Although this type of questioning was objected to, this counsel was given leave to subject each Commonwealth witness to a rigorous interrogation because in his estimate he had not isolated and separately valued the claimed items of damage. The foregoing excerpt from the cross-examination of the Commonwealth’s witness, B. S. Wigginton, illustrates the tactics employed by the landowners’ counsel.

“Q. Isn’t the porch a part of the residence ?
A. In fact, it is, yes.
Q. And it is a nice concrete porch, isn’t it?
A. Yes, sir it is a nice porch, nice house.
Q. And he has got a swing there where his wife and little girl sit and swing?
A. Yes, sir.
Q. And you won’t put a price on that?
A. I cannot put a price on that, no sir. I value the property before and after.
MR. WICKER: I would like to object to this line of questioning and I would like to be heard on the objection.
THE COURT: I’ll overrule it. If you want to be heard, go on, but that is proper cross examination to see how he figures it.
MR. WICKER: Well, I object on the ground that the Court of Appeals has held at least three times in the past year that appraisal witnesses in condemnation cases cannot put separate prices on various items, and I except to the court’s ruling.
Q. I think you said you considered the trees and the steps, but you won’t tell us how much you considered them?
A. I won’t put a value on separate items, or I don’t have a value on separate items, I might say.
Q. But you did consider them?
A. Yes, sir.
Q. And you considered the fence?
A. Yes, sir.
Q. And you considered the value of the land taken ?
A. Yes, sir.
Q. And that is all you considered?
A. I considered the condition, the land taken * * *.
Q. But you won’t put a price on that?
A. No, sir, taking all those things into consideration, plus I also considered the road before and the road after —I took all those things into consideration.”

It was stated in Commonwealth, Dept. of Highways v. Cardinal Hill Nursery, Inc., Ky., 380 S.W.2d 249, that a properly qualified appraisal witness, on direct examination, after testifying to the before and after market value of the property being condemned, may relate any pertinent factors considered by him in arriving at the values to which he has testified. He may, in a proper case, estimate the amount by which a major structure has enhanced the “before” value of the land, but he may not assign an itemized “price tag” to any “damage” factor. That opinion then made this statement:

“But on cross-examination it is appropriate to make inquiry of the witness as to whether he has indeed ascribed particular amounts to • ‘damage’ factors. This is not to show ‘after’ market value; it is to test the probative value of the evidence in chief from the witness. Some factors are not compensable; they are classified as damnum absque injuria. Certainly it would be fallacious to foreclose the cross-examiner’s right to elicit from the appraisal witness admissions that he has priced such factors in his ‘after’ market value testimony.” (Emphasis added.)

While it may have been proper for counsel to inquire of the witness whether prices had been placed on separate items, under the authority of Commonwealth, Dept, of Highways v. Cardinal Hill Nursery, ' Inc., supra, the continued emphasis on the witness’s failure to do so made it appear to the jury that he had something to conceal, that he had really not properly appraised the property, and that the proper measure of damages was the separate pricing of the various items. The trial court should have corrected this situation by admonishing the jury that the witness had used the proper measure of damages and that he did not have to price the items. The failure of the trial court to do this, however, could only have impressed the jury with the thought it was a proper appraisal technique to isolate and separately price the various items.

A third complaint is that the verdict returned under “Instruction (1)” is contrary to law. We shall not discuss this point because the judgment in this case must be reversed and the same alleged error may not recur, if there be another trial. We shall simply say that in the event there is another trial of this proceeding, the instructions to be submitted in a condemnation case of the type before us, as revised and approved in Commonwealth, Dept. of Highways v. Priest, Ky., 387 S.W.2d 302, 306, will be given. The latter opinion was handed down after the trial of this case.

In the light of what we have stated herein, we believe errors prejudicial to the substantial rights of the Commonwealth were committed.

Wherefore, the judgment is reversed and remanded for further proceedings consistent with this opinion.


author: CLAY, Commissioner.

text:
    Verner Lee SPEGAL, Petitioner, v. John P. LAIR, Judge, Pendleton Circuit Court, Falmouth, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Oct. 21, 1966.
    Verner Lee Spegal, pro se.
   CLAY, Commissioner.

Petitioner, proceeding in forma pauperis, seeks an order requiring respondent to grant him a speedy trial on a murder indictment. It appears that on March 23, 1966, the day following conviction under another murder indictment, petitioner filed a motion requesting a trial on indictment No. 2317.

The response filed by the respondent presents several reasons why this case has not been assigned for trial, but we have concluded those reasons no longer justify denial of petitioner’s constitutional right to be tried. The motion requesting trial is considered as an appearance pursuant to RCr 9.02.

The motion for an order of mandamus is sustained, and respondent is directed to initiate proceedings for petitioner’s arraignment and trial upon indictment No. 2317.


text:
    The HUNT CLUB, INC., Appellant, v. Harold MOBERLY, Commissioner of Alcoholic Beverage Control Board, etc., Appellees.
    Court of Appeals of Kentucky.
    Oct. 14, 1966.
    William A. Young, Frankfort, for appellant.
    Frank M. Dailey, Frankfort, for appel-lees.
   HILL, Judge.

This appeal requires a construction of KRS 243.220 relative to the manner of measuring the distance from a church or school to a liquor store.

Appellant’s application for a “special private club license” under KRS 243.270 was denied by the Alcoholic Beverage Control Board, and the Board’s action was approved by the circuit court. Applicant appeals to this court.

Main Street and Broadway in Frankfort, Kentucky are parallel and run generally east and west. St. Clair and Ann Streets run north and south and connect Main and Broadway. A narrow one-way street, or alley, known as Lewis Street, is located between St. Clair and Ann Streets.

The premises for which a license is sought face west on St. Clair Street. The First Christian Church of Frankfort faces east on Ann Street, but the church owns and recently constructed to the rear of its main church building an educational building which extends to Lewis Street.

There is no rear entrance to the building for which a license is sought, although there was formerly one that is now closed. The only entrance to the premises is on St. Clair Street near the middle of the block. The building occupied by applicant does not extend back all the way to Lewis Street. There is a parking lot between the rear of the building and Lewis Street.

The pertinent part of KRS 243.220 is as follows:
“ * * * no license for the sale of alcoholic beverages at retail shall be issued for any premises that are located on the same street as, and within two hundred feet of, a building used exclusively as a church or for class rooms of a school, if the governing authority of the church or school, within ten days after receiving notice of the application for the license, files written protest with the state administrator against the issuance of the license. The measurement shall he taken on the street on which the licensed premises are located, in a straight line from the nearest outside wall of the building on the licensed premises to the nearest outside wall of the church or school building.” (Our emphasis.)

By reading the latter part of the statute relative to making the “measurement,” it is apparent the Legislature means that the measurement should be taken “on the street” where people travel, not as the crow flies. In the present case, the church and the premises for which license is sought are not on the same street. To get from one to the other it is necessary to turn two corners. Admittedly, if the measurement must commence on St. Clair Street, follow the street to Broadway or Main Street, and thence through Lewis Street to the church property, the distance is greater than the 200 foot prohibition of the statute. We hold that this is the measurement directed by the statute. This conclusion does no violence to the rule announced in Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262, 130 S.W.2d 756, relied on by both appellant and appellees. Dough-erty only stands for the proposition that where the liquor store is located on the corner the measurement may start from the nearest property line of the “premises” regardless of the entrance.

For other jurisdictions sharing our view of similar statutes, see Commonwealth v. Jenkins, 137 Mass. 572; Commonwealth v. McDonald, 160 Mass. 528, 36 N.E. 483; Reliable Wine & Liquor Shop v. Schemmelman, Sup., 115 N.Y.S.2d 474; Cup & Saucer Cottage Restaurant v. New York State Liquor Authority, 19 A.D.2d 597, 240 N.Y.S.2d 491, 13 N.Y.2d 1050, 245 N.Y.S.2d 771, 195 N.E.2d 455; State ex rel. Collins v. Keirnan, 240 Mo.App. 403, 207 S.W.2d 49.

It may or may not be ironical, but at the time of the hearing before the Board, it had licensed approximately seventeen other retail alcoholic beverage outlets on Main Street and Broadway all within 200 feet of the church property according to the measurement it used in the present case.

The judgment is reversed with directions that it be set aside and another entered directing the appellees to grant the license applied for.


author: CALVERT, Chief Justice.

text:
    Marshall IVY, Petitioner, v. Cecil CARRELL, Respondent.
    No. A-11470.
    Supreme Court of Texas.
    Oct. 5, 1966.

      Glenn Faver, Jasper, for petitioner.
    Barber & Seale, Sid S. Stover, with above firm, Jasper, for respondent.
   CALVERT, Chief Justice.

Cecil Carrell was plaintiff, and Marshall Ivy was defendant in the trial court, and they will be so referred to in this opinion. The purpose of Carrell’s suit was to have a deed, executed and delivered by him to Ivy, declared to be a mortgage, and to remove cloud from title to the land therein described.

Carrell’s suit was filed on June 12, 1963, and an answer was filed by Ivy on June 26, 1963. An amended petition was filed on July 8, 1963, and an amended answer and a motion to dismiss was filed on February 11, 1964. On January 4, 1965, the case was set for trial on January 6. On that date the trial court rendered a default judgment in favor of the plaintiff declaring the deed in question to be a mortgage on the plaintiff’s homestead and therefore void, cancelling the deed and removing the cloud cast thereby on plaintiff’s title, and awarding plaintiff title to and possession of the premises.

Defendant filed a motion for new trial on January 14, 1965, and an amended motion on January 21, 1965. The motion for new trial was heard and overruled, and an appeal was taken to the court of civil appeals. The court of civil appeals affirmed the trial court’s judgment. 401 S.W.2d 336. We affirm. The only question presented by the appeal is whether the trial court erred in overruling the defendant’s motion for new trial.

In affirming the judgment of the trial court, the court of civil appeals appears to have used an erroneous test for measuring the correctness of the trial court’s action. The court of civil appeals said (401 S.W.2d 338):

We believe the rule controlling the type of case pending before us to be that in order to secure a new trial the defendant was required to allege and prove upon a hearing that his failure to be present or represented upon the trial was not due to his fault or negligence, or that of his counsel and that he had a meritorious defense to the cause of action asserted against him.

The correct rule, applicable alike to motions for new trial which seek to set aside default judgments entered on failure of a defendant to file an answer and those entered on failure to appear for trial, is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), as follows:

A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

See also City of San Antonio v. Garcia, 243 S.W.2d 252 (Tex.Civ.App.—San Antonio 1951, writ ref’d). That the rule is applicable to default judgments entered on failure of the defendant or his counsel to appear for trial, see City of Fort Worth v. Gause, 129 Tex. 25, 28, 101 S.W.2d 221, 222 (1937); Box v. Associates Investment Co., 352 S.W.2d 315, 317 (Tex.Civ.App.—Dallas 1961, no writ).

Tested by the rule of Craddock, the record shows quite clearly that the failure of the defendant and his counsel to appear for trial was not intentional or the result of conscious indifference, but was due to accident or mistake. The evidence on the issue adduced at the hearing on the motion for new trial, some of which is shown in the opinion of the court of civil appeals, need not be reviewed inasmuch as the judgments of the courts below must be affirmed on another ground.

The rule of Craddock does not require proof of a meritorious defense in the accepted sense to entitle one to a new trial after default; the motion should be granted if it “sets up a meritorious defense.” In this respect the burden a defaulting defendant must assume on motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding filed after expiration of the time for filing a motion for new trial. In the latter situation, except in unusual circumstances as reflected in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964), the issues of negligence or fault on the part of the defendant, fraud, accident or wrongful act on the part of the plaintiff, and meritorious defense are tried together in a single full-blown trial in which “every issue must be disposed of, and relief denied or granted.” Texas Employer’s Ins. Ass’n v. Arnold, 126 Tex. 466, 469, 88 S.W.2d 473, 474 (1935). See also Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959); Humphrey v. Harrell, 29 S.W.2d 963 (Tex.Com.App.1930, jdgmt adopted). The only relief which a defaulting defendant may secure by filing a motion for new trial is a setting aside of the default judgment. The case then pends on the trial court’s docket for trial on its merits.

We note again the specific language of Craddock that a new trial should be granted to a defaulting defendant if his motion “sets up a meritorious defense.” This does not mean that the motion should be granted if it merely alleges that the defendant “has a meritorious defense.” The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense. City of Fort Worth v. Gause, 129 Tex. 25, 28, 101 S.W.2d 221, 222 (1937); Holliday v. Holliday, 72 Tex. 581, 10 S.W. 690 (1889); Dowell v. Winters, 20 Tex. 793, 794 (1858); Foster v. Martin, 20 Tex. 118, 119 (1857). This much is necessary to prevent the reopening of cases to try out fictitious or unmeritorious defenses. But once these requirements are met, it is improper to try the defensive issues made by the motion or the pleadings. In Cragin v. Henderson County Oil Dev. Co., 280 S.W. 554, 555 (Tex.Com.App.1926, holding approved), the court, after stating the requirements of a motion for new trial in default judgment cases, said:

But when he [the applicant] has thus set forth such meritorious defense, supported by such affidavits or other evidence as prima facie to entitle him to a new trial, such new trial should not be denied upon any consideration of counter affidavits or contradictory testimony offered in resistance to such motion.

See also Maeding v. Maeding, 155 S.W.2d 991, 993 (Tex.Civ.App.—Galveston 1941, no writ).

Tested by the foregoing rules, the defendant failed to discharge his burden of showing a meritorious defense, and the trial judge did not, therefore, abuse his discretion in overruling the motion for new trial.

The only allegations contained in the motion for new trial relating to a defense to the cause of action asserted by the plaintiff are that (1) “he [defendant] has a good and valid deed to said land;” (2) “he has a valid and meritorious defense to said case;” and (3) “he is a fee simple owner having acquired the land by deed.” These are but allegations of conclusions. The defendant testified in support of his motion at a hearing held on March 11, 1965, two months after the default judgment was entered. The default judgment was entered only after the trial court had heard the testimony of the plaintiff, his wife and a third person. Their testimony related to the details of the transaction in which the deed was executed and clearly compelled the conclusion that the deed was intended as a mortgage; and yet, the defendant did not controvert the facts to which they testified by either allegations in his motion or his testimony in support of the motion. He was asked only two questions at the hearing which can be related in any way to a defense to the plaintiff’s cause of action. Asked if he “paid out [his] hard-earned money for this property,” he answered, “Yes, sir, sure did.” Asked, “You know you can’t lend money on a homestead, don’t you?” he replied: “I sure do, and I didn’t.”

Since the motion for new trial does not contain allegations of facts which in law constitute a meritorious defense to the plaintiff’s cause of action and the testimony given on the hearing does not prove such a defense prima facie, the trial court did not err in overruling the motion.

The judgment of the court of civil appeals is affirmed.

      . Emphasis ours throughout unless otherwise indicated.


author: WALKER, Justice.

text:
    The STATE of Texas, Petitioner, v. E. T. FULLER, Jr. et al., Respondents.
    No. A-11107.
    Supreme Court of Texas.
    Oct. 5, 1966.
    Rehearing Denied Nov. 2, 1966.

      Weller, Wheelus & Green, Beaumont, for E. T. Fuller, Jr., and others.
    Strong, Pipkin, Strong & Nelson, T. Turner Pope and Pike Powers, Beaumont, for Minnie B. Justus.
    Carl R. Griffith and J. S. Maida, Jr., Beaumont, for Edna Brooks and others.
    W. G. Walley, Jr., Beaumont, for State.
   WALKER, Justice.

This is an action to determine the surface ownership of the west one-half of a 680.55-foot segment of an abandoned railroad right-of-way. The competing claimants are: (1) the State of Texas, which owns the surface of the land occupied by U. S. Highway 69, west of and adjoining the strip in controversy; (2) E. T. Fuller, Jr. et al, hereinafter referred to collectively as the Fullers, who own the land east of and adjoining the railroad right-of-way; and (3) Edna Brooks et al, hereinafter referred to collectively as the Brooks, who own the land west of and adjoining U. S. Highway 69. Title to the minerals is not in issue, and the Fullers are recognized to be the surface owners of the east one-half of the abandoned railroad right-of-way adjoining their property.

An action in trespass to try title and for a declaratory judgment was instituted by the State against the other claimants, and the trial court rendered summary judgment in favor of the State. This judgment was modified by the Court of Civil Appeals to include a declaration that the Fullers, as owners of the land east of the strip in controversy, have a right of access to Highway 69, and as so modified the judgment of the trial court was affirmed. 394 S.W. 2d 203. Applications for writs of error were filed by the State, the Fullers and the Brooks, and all applications were granted. It is our opinion that the judgment of the trial court was correct and should be affirmed.

The following plat will be of assistance in understanding the situation and contentions of the parties:

John J. French is the common source of title to all of the land shown on the plat. By deed dated September 9, 1880, he conveyed to East Texas Railway Company a railroad right-of-way easement 100 feet in width. Some nine years later he conveyed the land east of and adjoining the railroad right-of-way to Mrs. C. C. Blanch-ette. The Fullers acquired title to an 8-acre tract, which adjoins the railroad right-of-way on the east for a distance of 680.55 feet, through and under Mrs. Blanchette. The deeds in this chain of title purport to convey land bounded on the west by the east line of the railroad right-of-way. Fee simple title to the remainder of the land shown on the plat passed, subject to the railroad easement, from John J. French to Mrs. Edna French. On May IS, 1937, she conveyed the right-of-way for State Highway 40, later U. S. Highway 69, to the State of Texas. This conveyance was by general warranty deed, but all minerals were reserved to the grantor. It describes a strip of land 130 feet wide and 1509 feet long lying west of and adjoining the railroad right-of-way. Several small tracts immediately west of the highway were subsequently conveyed by Mrs. French to the Brooks or their predecessors in title. The railroad abandoned its right-of-way in 1961.

It is well settled that a deed to land abutting on a railroad right-of-way conveys title to the center of the right-of-way unless the contrary intention is expressed in the instrument. Cox v. Campbell, 135 Tex. 428, 143 S.W.2d 361; Rio Bravo Oil Co. v. Weed, 121 Tex. 427, 50 S.W.2d 1080, 85 A.L.R. 391; Joslin v. State, Tex. Civ.App., 146 S.W.2d 208 (wr. ref.). Under this rule the Fullers became the owners, subject to the easement, of the east one-half of the railroad right-of-way adjoining their 8-acre tract. Their title thereto, which ripened into absolute ownership when the right-of-way was abandoned, is not disputed by either the Brooks or the State.

The State relies upon the rule just mentioned as the basis of its claim to the west one-half of the railroad right-of-way, while the. Brooks insist that this case is governed by the exception recognized in Haines v. McLean, 154 Tex. 272, 276 S.W.2d 777, There we were concerned with the title to the minerals underlying three adjoining easements which ran in a general northerly and southerly direction. The Boothe plaintiffs held under a deed purporting to convey the land east of and adjoining the most easterly strip in controversy, and the land west of the disputed strips passed to the Haines heirs. The latter then conveyed to Scurry County the right-of-way of U. S. Highway 84, which lay immediately west of and adjoining the most westerly of the three strips.

We recognized in Haines that the deed to Scurry County conveyed at least a determinable fee. The instrument recited, however, that the conveyance was in the nature of a donation for highway purposes only, and stipulated that the property would revert to the grantors in the event it ceased to be used for such purposes. It was held that the minerals under the east one-half of the three strips were owned by the Boothe plaintiffs, and that the minerals under the west one-half were owned by the Haines plaintiffs. In rejecting the contention that title to part of three strips was outstanding in Scurry County, we said:

“Whether we rationalize our conclusion on the theory that the restrictive language of the deed [to Scurry County] in the light of attendant circumstances amounted to an ‘express reservation’ of the easement area under the rule as stated in Rio Bravo, Cox and Joslin cases, or simply refuse to apply the result of those decisions to a new situation where it seems unnatural to apply it, or say that here the additional area in question cannot realistically be called an appurtenance of the strip conveyed to Scurry County, our conclusion appears to us the more just solution of the problem.”

Here we are concerned only with the surface of the strip in controversy, and no minerals are involved. The deed from Mrs. Edna French to the State, the relevant portions of which are quoted in the margin, was executed for a recited consideration of $2,056.50 paid in cash. All oil, gas and other minerals were reserved to the grantor, but the instrument contains no other restriction or reservation. It purports to “grant, bargain, sell and convey” the land therein described, which adjoins the railroad right-of-way on the west, and includes a covenant of general warranty. We agree with the Court of Civil Appeals that the Haines exception is not applicable under these circumstances, and that the case is governed by the general rule mentioned above. See Bowers v. Atchison, T. & S. F. R. Co., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228.

The Fullers say that the deed from Mrs. Edna French to the State conveyed only an easement, and argue from this premise that they are entitled to the east one-half of the combined highway and railroad strips, which would give them all of the former railroad right-of-way. They cite Right of Way Oil Co. v. Gladys City Oil, Gas & Mfg. Co., 106 Tex. 94, 157 S.W. 737, 51 L.R.A.,N.S., 268, where the railroad company was held to have acquired merely an easement under a deed purporting to convey to it “for the purpose of constructing, operating and maintaining its railroad, the right of way, two hundred feet in width, over and upon the above described land.” In support of their contention that the deed in the present case should be given the same effect, the Fullers point out that the instrument is characterized on its face as a “Right of Way Deed.” It recites that “the lands herein conveyed is a strip * * * lying within the limits of the right of way of Proposed State Highway No. 40,” and that the grantor intended to convey all land owned by her “within the above described limits.” It also appears that the property was acquired by the State for highway purposes with the proceeds of a road bond issue, and would doubtless have been taken under the power of eminent domain if Mrs. French had been unwilling to sell at a price agreeable to the condemning authority.

In our opinion there is no merit in the basic premise thus urged by the Fullers. The deed from Mrs. French to the State shows clearly that it was her intention to convey not merely an easement but fee simple title to the land described, subject only to the mineral reservation. The interest passing thereunder is determined by the terms of the conveyance, and the grantee’s estate is not restricted or impaired by the purposes for which the property may lawfully be used or by the fact that the same was acquired under threat or in lieu of condemnation. We hold that fee simple title to the west one-half of the railroad right-of-way adjoining the property described in such deed is vested, subject to the mineral reservation, in the State.

The Fullers also contend that the courts below erred in failing to declare that the west one-half of the railroad right-of-way may be used by the State only for highway purposes. It does not appear that the State contemplates using the property for any other purpose, and there is no justiciable controversy to warrant a judicial declaration of the uses to which the land may properly be devoted. This brings us to the holding of the Court of Civil Appeals that the Fullers, as owners of the east one-half of the railroad right-of-way adjoining their 8-acre tract, have a right of access to Highway 69. The State plans to use all of the railroad right-of-way for highway purposes, and has instituted condemnation proceedings to acquire the east one-half owned by the Fullers. It is to their interest, therefore, to establish that the ownership of such strip carries with it the right of access to the highway.

Prior to abandonment of the railroad in 1961, the Fullers occasionally parked their vehicles on the highway and walked across the tracks to their property. It does not appear, however, that they ever acquired a legal right to cross the right-of-way where it adjoins their 8-acre tract for access to the latter from the highway. Their claim of access to the highway is as abutting owners. Since the west one-half of the railroad right-of-way was acquired by the State with the proceeds of bonds issued for the purpose of constructing, maintaining and operating roads, they insist that such property can be used by the State only for highway purposes. We assume without deciding that they are correct in that contention. This, the Fullers then say, makes the west one-half of the railroad right-of-way part of the highway, and entitles them, as the owners of the east one-half, to the rights of abutting owners. We do not agree.

“A least one case has recognized quite frankly that ‘[t]he precise origin of [the concept of access rights] is somewhat obscure but it may be said generally to have arisen by court decisions declaring that such right existed and recognizing it.’ Bacich v. Board of Control, 23 Cal.2d 343, 144 P.2d 818, 823 (1943). * * * Early road construction was by local citizens as well as for local use, and almost all highways or roads were for the purpose of ‘land service.’ Moreover, the abutters often donated the land, labor, and materials necessary to the road construction and maintenance, and in view of this, it seldom occurred to anyone to attempt to deny their right to use the road for ingress and egress. Whatever its origin, the right is now clearly established as a concomitant of ownership of land abutting on a highway. See Covey, Control of Highway Access, 38 Neb.L.R. 407 (1959); Duhaime, Limiting Access to Highways, 33 Ore.L.R. 16 (1953); 25 Am. Jur., Highways § 154.” State v. Meyer, Tex.Sup., 403 S.W.2d 366, 370.

The term “abutting owner,” when used in relation to highways, ordinarily refers to one whose land actually adjoins the way, although it is sometimes used loosely without implying more than a close proximity. See Black’s Law Dictionary, 3rd ed. 1944; 25 Am.Jur. Highways § 153. Here the State has acquired, perhaps unwittingly, a strip of land which, according to the Fullers, it can use only for highway purposes. That did not, however, make the property part of the highway. If the additional land were not needed for highway purposes, it could be sold by the State as authorized by Article 6673a, Vernon’s Ann.Tex.Civ.Stat. The responsible officials evidently expect to widen the highway to include the strip in controversy as well as the adjoining 50 feet owned by the Fullers, but a public way has not yet been established on the State’s half of the former railroad right-of-way. At the present time, therefore, the Fullers do not own land abutting on the highway and have no right of access thereto across the tract awarded to the State in this action.

The judgment of the Court of Civil Appeals is modified so as to affirm the judgment of the trial court, and as so modified is affirmed.

      .
      RIGHT OF WAY DEED
      STATE OE TEXAS COUNTY OF JEFFERSON KNOW ALL MEN BY THESE PRESENTS:
      That Mrs. Edna French * * * for and in consideration of the sum of Two Thousand Fifty-six and 50/100 ($2,056.50) Dollars to her in hand paid by the State of Texas * ⅞ ⅜ have this day sold and do by these presents grant, bargain, sell and convey unto the State of Texas, all that certain tract or parcel of land situated in the County of Jefferson, State of Texas ⅜ * * more particularly described as follows, to-wit:
      The land herein conveyed is a strip out of the T. A. French 32.6 acre tract in the A. Williams Survey * * * said strip of land lying within the limits of the right of way of the proposed State Highway No. 40 in Jefferson County, Texas, as surveyed by the Division Engineer of the State Highway Department of Texas, and being of such width that the right of way contained on East side of the centerline of said Highway No. 40 shall be seventy (70') feet and on the West side sixty (60') feet: the centerline being more particularly described as follows :
      ⅞ * * ⅝
      It being the intention in this deed to convey to the State of Texas, all the land now being owned by me/us within the above described limits and containing 4.50 acres of land.
      There is reserved, however, to the Grant- or herein all oil, gas and other minerals on in and under the land hereby conveyed.
      ⅜: ⅜ * ⅜ ⅜
      TO HAVE AND TO HOLD the above described premises, together with all and singular the rights and hereditaments thereunto in anywise belonging unto the said State of Texas, and its assigns;
      And I/we hereby bind my/ourselves, my/our heirs,, executors and administrators to forever warrant and defend the rights and title to said premises unto the said State of Texas, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
      ‡ ‡ ‡ ‡ $