author: HILL, Judge. MONTGOMERY, Judge

text:
    COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellant, v. GIVENS BROTHERS, INC., et al., Appellees.
    Court of Appeals of Kentucky.
    June 25, 1965.
    Rehearing Denied March 4, 1966.
    Robert F. Matthews, Atty. Gen., Wm. A. Lamkin, Jr., Asst. Atty. Gen., C. E. Skid-more, Highway Department, Frankfort, for appellant.
    Pollard White, Hopkinsville, William M. Deep, Henderson, for appellees.
   HILL, Judge.

This proceeding to condemn a portion of appellees’ town lot in Hopkinsville, Kentucky, for use in rerouting U.S. 41, where Virginia Street intersects with North Main Street, resulted in a verdict and judgment for appellees of $10,000 for land actually taken, and $1200 for temporary use of an additional tract during construction. The state only appeals.

Only two grounds are argued for reversal, (1) that the trial court erred in overruling its motion to strike certain evidence claimed incompetent, and (2) because of excessiveness of the amount allowed for temporary easement.

First, we detail the situation of appellees’ property before and after the taking. Their lot was 90 x 108 before, with a concrete block service station, with upstairs living quarters, slightly north of the middle of the lot, with pumps in front and facing on North Main Street. The back of the lot and building was on Virginia Street. To the south of the lot, Riverside Drive joins Main Street and Virginia Street. Virginia Street runs into Main just north of appel-lees’ property, so that this property was actually situated in a triangle with Riverside Drive as the base, and with Main and Virginia Streets as the sides, forming an apex near the intersections of Virginia and Main. Main Street run north and south and Virginia Street runs into Main from the southeast. Virginia Street is made a one-way thoroughfare for north bound traffic.

Two triangular tracts are taken, one with a base 14 feet wide and sides 90 feet long; the other, while not given in evidence or on the map, must have a base of about 30 feet and sides 70 feet, since it’ is shown 1730 square feet were taken, including both tracts.

In addition, two temporary easements were sought, one 20 x 90 on Riverside Drive, and the other IS feet wide and extending a little over 100 feet along the east side of appellees’ lot. The temporary use was for about one year.

The temporary easement is unusual in this case, in that, about 80% of it was used to make a fill and slope on the east side, including a retaining wall a part of the distance, which retaining wall is 9 feet high at, one point and 4 feet 4 inches at another. This fill and sloping process were also used on the south next to Riverside Drive for nearly half the width of the lot. So, we must treat a large part of the temporary easement as actually a taking since appellees cannot use the land supporting the fill or the slope from the fill. The parking space to the south and east of the lot has been taken for all practical purposes.

Before the construction, traffic could drive all the way around the building. Not so now. The retaining wall is 1.8 feet from the building. We do not find the amount awarded for temporary easement excessive.

Now, to the evidence complained of. First, appellant complains that error was committed by the failure of the trial court to strike the testimony of Robert Givens because he arrived at values from prices he paid in other locations mostly in other counties. This, we do not believe was sufficient justification to strike his testimony. It was sufficient that he was familiar with other sales of property for like use in the general area, perhaps including several counties.

Next, objection is made to testimony of Raymond McKinney because he admitted on cross-examination, along with other factors, he considered the difference in rental value before and after the taking. Although he did not know such rental value, he had a “fairly good idea” about it. He fixed the before value at $30,000 and the after value, $15,000. He fixed the rental value of the temporary easement at $100 per month, or a total of $1200> which figure the jury implicitly believed and adopted in its verdict. In speaking of the land used for temporary easement, this witness said: “Well, certainly, you had rather have a bank like that than to not have it. I would say it would be worth something but as far as business is concerned I see no benefit of it to any business you might establish on the property.” This witness had been a wholesaler for Texaco since 1931. He was chairman of the board of directors of the the First City Bank & Trust Company and a member of its loan committee, and as such did appraisals. The diligent effort of counsel for appellant to get him to base his estimate of values on income, alone, failed when he said “very definitely the rental income and the sale value.” We think the trial court was correct in overruling motion to strike the testimony of this witness.

Similar complaint is made to the testimony of Jewell Hill who gave no supporting1 factor to bolster the probative value of his estimates other than the fact appellees will no longer have sufficient parking space and that cars no longer can circulate around the service station. Appellant was not entitled to “strike” the testimony of this witness. The same situation exists as to the testimony of Vernon Lile, except that no objection was made to his testimony. He also took into account the rental value of the temporary easement and interruption of business. Interruption of business is an improper factor but it cannot be said such a reference by this witness alone was prejudicial to appellant. We think it was not. No claim is made that Mr. Lile was not an expert. He appeared to rely on comparable sales near the land in question.

Appellant finally complains that all of the evidence as to the fair rental value of the temporary easement should have been stricken because “(1) there was no valid basis for these opinions, and (2) each of the witnesses evidently was basing his opinion on the interruption of business during construction of the road.” This broad assertion is refuted by the testimony of Mr. McKinney who unequivocally denied that he relied on the interruption of business to determine the rental value of the temporary easement. This argument is further refuted by the testimony of Jewell Hill who did not state that he relied on the interruption of business to determine the rental value of the temporary easement. Also, as noted above, the land involved in the temporary easement, in its present condition, is worthless to appellees and must be treated as a substantial taking.

In concluding this phase of the case, it may be said that there is no merit to appellant’s contention that none of the witnesses had a valid basis for their estimates. Without enumerations it is sufficient to point out that all of the witnesses were apparently pretty well qualified to state their opinions of the rental value of the temporary easement. Their failure to elaborately outline the reasoning underlying these estimates merely affects the weight of their testimony.

The judgment is affirmed.

MONTGOMERY, J., dissents.

MONTGOMERY, Judge

(dissenting).

The majority opinion is in error, in my belief, in holding that the motion to strike the testimony of Robert Givens, Raymond McKinney, and Jewell Hill was properly overruled. Each witness in part based his estimate of value on the rental value of the service station. The rental of the property was based on the amount of petroleum products, especially gasoline, sold each month.

As I recall the testimony, 1 ½⅞⅝ per gallon was paid as rental. The amount of petro-leutn products sold in a service station depends in large measure on the skill and personality of the operator, as distinguished from any characteristic or quality of the station property itself. Thus, the testimony of the three witnesses, in so far as they base their value estimates on the gasoline sales, was based on an “income-producing quality” unrelated to the property, which is an improper basis for assessing damages to the property by condemnation. This has been condemned. Commonwealth v. Smith, Ky., 358 S.W.2d 487; Commonwealth v. Eubank, Ky., 369 S.W.2d 15; Robinette v. Commonwealth, Ky., 380 S.W.2d 78.

Additionally, the testimony of McKinney should have been stricken because he undertook to base his value estimate on rental but at the same time admitted his lack of knowledge of the amount of rental. Both McKinney and Hill failed to support their value estimates with sufficient probative testimony.

Accordingly, I feel that the trial court erred to the prejudice of the appellant in failing to strike the testimony mentioned.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    LETCHER COUNTY COAL & IMPROVEMENT COMPANY, Appellant, v. M. K. MARLOWE, Appellee.
    Court of Appeals of Kentucky.
    July 2, 1965.
    Rehearing Denied March 4, 1966.

      Stanley R. Hogg, Emmett G. Fields, Whitesburg, for appellant.
    Bruce Stephens, Jr., Hazard, for appellee.
   MONTGOMERY, Judge.

M. K. Marlowe sued Letcher County Coal & Improvement Company to have his title quieted to certain mineral rights. Judgment was entered in favor of Marlowe, who concedes that the title to only about eighteen acres is involved. The coal company appeals.

The rights involved are covered by the west portion of a fifty-acre patent in the name of Greenberry Thomas dated November 29, 1844. The involved portion of the patent lies west of the ridge top between the watersheds of Smoot and Dry Fork creeks on the west side and Sandlick Creek on the east side.

Appellant traces its title to the Green-berry Thomas patent in 1844. Appellee’s title originated with the Watson Caudill patent of February 9, 1846, and the David Tyree patent of February 24, 1871. Ap-pellee admits that the Greenberry Thomas patent constitutes the senior record title to the tract in controversy.

Appellant claims that it was error to admit in evidence the record and testimony in an action styled C. H. Back, plaintiff, v. S. B. Brown and Cleveland Halcomb, defendants; that appellee failed to perfect his junior record title by proof of adverse possession; that the court erred in the construction of the language of a deed in appellant’s chain of title; and that appellant proved a superior title to the land in controversy.

The general rule is that the plaintiff seeking to quiet his title must prove both title and possession. KRS 411.120; Leach v. Taylor, 206 Ky. 28, 266 S.W. 894. He must succeed if at all on the strength of his own title and not on the weakness of defendant’s title. Barren County Board of Education v. Jordan, Ky., 249 S.W.2d 814. However, here, appellant, as defendant, in effect counterclaimed in which event it became the responsibility of the Chancellor to determine the superior title. Whitaker v. Shepherd, 280 Ky. 713, 134 S.W.2d 604.

In seeking to determine the superior title, the Chancellor recognized that appellant had the senior record title. However, ap-pellee contended that the description in a deed in appellant’s chain of title limited such title to the dividing ridge and did not extend it to all of the fifty-acre Green-berry Thomas patent tract, also referred to as G. B., Green B., or Green Berry Thomas.

The description in question appears in a deed from W. B. Nickels and wife and W. H. Nickels to B. E. Caudill dated August 17, 1897, which recites that it conveys a tract of land on the head of Sandlick Creek and proceeds to describe the boundary partly by a natural objects description and partly by a metes and bounds description until it reaches “the top of the knob between said Sandlick and Camp Branch Creeks.” It then continues:

“thence with the top of the dividing ridge between said Sandlick and Colly Creeks to two chestnut oaks on top of the knob between said Sandlick, Little Colly and Smoot Creeks; thence along with the top of the dividing ridge between said Sandlick and Smoot Creeks to the top of the knob between said Sandlick, Smoot and Dry Fork Creeks; thence still a south course along with the top of the dividing ridge between said Sandlick and Dry Fork Creeks to the top of the spur at a corner of the said dividing line between said Nickels and said John Dixon Caudill and down along the top of said spur and down the hill an east course or southeast course to the beginning, embracing all of a 50 acre survey made in the name of David Tyree, all of a 50 acre survey made in the name of G. B. Thomas; all of two 100 acre surveys made in the name of John A. Caudill; all of a 50 acre and part of another 50 acre survey made in the name of John A. Caudill; all of a 50 acre survey made in the name of Green B. Thomas; all of a 50 acre survey made in the name of Andres Sexton.” (Emphasis ours).

References to the various sources of title followed the above description.

The conflict is that if the dividing line is the ridge between Sandlick, Smoot, and Dry Fork creeks it does not embrace all of the G. B. Thomas 50-acre survey. Appel-lee claims that the eighteen acres in question extend beyond the ridge, but appellee admits that they are in what was originally the fifty-acre survey. Which should prevail — the “dividing ridge” call or the “embracing all of a fifty-acre survey” call?

An examination of deeds previous to and subsequent to the B. E. Caudill deed shows that the eighteen acres were intended to have been conveyed. The Commonwealth of Kentucky granted a patent of fifty acres to Greenberry Thomas on November 29, 1844. A deed covering the identical metes and bounds conveyed the land from Thomas to John Caudill on August 18, 1848. On April 3, 1875, John A. Caudill conveyed “all the lands I owned or possessed on both sides of the creek (Sand Lick) * * * containing by estimation 250 acres” to W. H. Nickels. On January 2, 1896, W. H. Nickels conveyed the land to W. B. Nickels. This deed referred to the conveyance from Caudill to W. H. Nickels. The next deed is the one from the Nickelses to B. E. Caudill. Thus, it is indicated that the grantors in all of the previous deeds meant to and sought to convey the eighteen acres as part of the original fifty-acre survey.

In the subsequent deeds, the deed from B. E. Caudill to J. P. Back dated November 15, 1900, merely refers to and conveys the same land that Nickels conveyed to Caudill. The next deed from J. P. Back to C. H. Back dated January 29, 1917, conveyed the entire tract of the Greenberry Thomas survey. The following language from that deed includes the eighteen acres: “ * * * and with the top of said ridge, N 28 19.5 poles to a sourwood and black oak on line of Green B. Thomas 50 acre survey of November 29, 1844, and with three lines of same reversed, N 88 30 W 41.3 poles to a stake corner to said survey, N 3 E 76 poles to a stake, S 67 E 49.4 poles to a stake near top of ridge between Smoot Creek and Sand Lick Creek * * *.” This same description is found in the conveyance from C. H. Back to appellant on September 25, 1925. Thus, by viewing all these deeds as a whole, it can be seen that the clear intention each time was to convey successively the entire Greenberry Thomas fifty-acre survey, of which the eighteen acres are a part.

The fundamental consideration in ascertaining what property is conveyed is the intention of the grantor. Chrisman v. Dennis, 308 Ky. 408, 214 S.W.2d 598; Billips v. Hughes, Ky., 259 S.W.2d 6. The rule is stated in Chrisman v. Dennis as follows:

“It is generally recognized that where a deed contains both a general and a particular description and contains no language indicating which description shall prevail, the general must yield to the particular. Hatcher v. Virginia Mining Co. et al., 214 Ky. 193, 282 S.W. 1102. On the other hand, where it is manifest from the entire instrument that the general description, in view of the facts and circumstances surrounding the transaction, most clearly reflects the intention of the grantor, the construction will be adopted which gives it full effect. McKinney et al. v. Raydure, 181 Ky. 163, 203 S.W. 1084.”

In the Hatcher case mentioned, the general rule relied on by appellee and the exception relied on by appellant, as approved in Chrisman v. Dennis, are stated.

The problem of which is the general description and which is the particular description and their reconciliation is discussed in Bland v. Kentucky Coal Corporation, 306 Ky. 1, 206 S.W.2d 62. Under the rules stated, and in view of all of the circumstances attending the various conveyances referred to, it is concluded that the fifty-acre survey contains the eighteen acres in dispute and that the conflict in the Nickels-Caudill deed dated August 17, 1897, must be resolved in favor of the appellant.

In order to establish title to the minerals by adverse possession, the record in the case of C. H. Back v. S. B. Brown and Cleveland Halcomb was permitted to be introduced by appellee. That litigation concerned the cutting of timber and the title to surface rights. It was started about three months after the mineral rights under said surface, and now claimed by appellant, had been severed and conveyed to appellant’s predecessor in title. C. H. Back’s grantee in the mineral severance conveyance was not a party to the litigation.

Inasmuch as the parties, issues, and subject matter of the Back v. Brown and Halcomb action were not the same as here, such record was not admissible under KRS 422.150. Callihan v. Luster, Ky., 305 S.W.2d 530. See also S. W. Anderson Co. v. Glenn, D.C., 43 F.Supp. 334. Accordingly, the court improperly admitted such record into evidence and improperly considered it in making a decision. Appellee attempts to distinguish Callihan but overlooks the requirements of identity of parties and issues.

In Vorhes v. Dennison, 300 Ky. 427, 189 S.W.2d 269, the rule was stated:

“Where ownership of the surface and of the minerals has been severed, title to the minerals may be acquired by adverse possession provided there has been actual, open, notorious, continuous, and hostile possession of the minerals for the statutory limitation period. The owner o.f the surface estate, or some other person, must have taken actual possession of the minerals by opening and operating mines for the statutory period. Mere possession of the surface will not give title to the minerals by adverse possession. (Citing cases).”

See also Diederich v. Ware, Ky., 288 S.W.2d 643.

The record does not disclose any acts or conduct on the part of appellee or his predecessors in title showing any assertion of adverse possession of the mineral rights in controversy. On the contrary, there was evidence to show that appellant had enjoyed peaceable possession of the property during the last thirty years. Thus, appellee failed to establish any title by adverse possession.

In view of the failure of appellee to establish title by adverse possession, and since it is conceded that appellant has the senior record title, the judgment below is erroneous.

Judgment reversed with direction to enter judgment in favor of appellant.


author: WADDILL, Commissioner.

text:
    Dewey GOOD et al., Appellants, v. Thomas Leo MUSIC et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    W. W. Burchett, Prestonsburg, for appellants.
    Joe Hobson, Prestonsburg, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment holding that appellants, Dewey and Nellie Good, are not entitled to possession of a certain strip of land 25 x 100 feet constituting the east half of a lot designated as 26 on a plat of Town Hall Addition to the town of Allen. The judgment is based on the chancellor’s finding that this land had been dedicated for public use and that the appellants had notice of this before they acquired the deed under which they claim title to it.

Appellants urge that the finding of dedication is erroneous since the attempted dedication was not sufficient as a matter of law.

On March 16, 1961, J. L. Williams conveyed lots 24 and 25 of Town Hall Addition to appellees, Thomas and Mary Music. On March 20, 1961, Williams delivered to the appellees a signed instrument wherein he recited that he had dedicated to the Town of Allen a 25-foot street over lot 26. The street is adjacent to appellees’ lot 25 and dead ends at a lot owned by a labor union. The instrument was never recorded nor is the street shown on a plat of this subdivision.

In 1963 Williams sold lot 26 (including the dedicated area) and lot 27 to appellants. This action was instituted to quiet title to lot 26 and to enjoin use of it by appellees.

The evidence shows that Williams had placed gravel on the street and told various persons that it was dedicated as a street. In 1961 Williams had mortgaged half of lot 26 and told the mortgagee that he had dedicated the other half as a street. Appellants testified that they observed limited use of the street at the time of their purchase although they believed it Was permissive use.

The acts of Williams in relation to this land and the instrument he gave appel-lees, plus his unequivocal testimony that it was for the use of the traveling public, justified the chancellor in finding that it was Williams’ intent to dedicate this land as a public street.

There was evidence that at least some lots in Town Hall Addition were purchased in reliance on Williams’ assurance that the east half of lot 26 was dedicated as a public street. There was testimony that this street was used to park cars and to reach the union hall. These facts tended to show that the dedication was accepted by the public. As stated in Central Land Co. v. Central City, 222 Ky. 103, 300 S.W. 362:

“ * * * the only thing necessary is that the intention of the donor to dedicate the thing to the public use must appear, and the subsequent acceptance by conduct of the public completes the act of dedication, without writing upon either side.”

We are unwilling to hold the chancellor erred in concluding that the dedication was complete at the time appellants purchased their property.

The argument that this land is incapable of being dedicated to the public as a street because it would be a dead end street is without merit since the evidence shows that the public was being benefited by its use as a street.

The judgment is affirmed.

HILL, J., not sitting.


author: PALMORE, Judge.

text:
    Doris M. QUACKENBUSH et al., Appellants, v. Henry Joseph LAMKER et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.

      Julius Leibson, C. M. Leibson, Louisville, for appellants.
    Victor W. Ewen, Jones, Ewen & Mac-Kenzie, Louisville, for appellees.
   PALMORE, Judge.

This is an automobile accident case in which the jury found for the defendants and the plaintiffs contend they were entitled to a directed verdict and a judgment n.o.v. because the physical facts are conclusive in their favor. Cf. Crain v. Jones, Ky., 390 S.W.2d 640 (1965); Ison v. Mullins, Ky., 336 S.W.2d 599 (1960); Silver Fleet Motor Express v. Wilson, 291 Ky. 509, 165 S.W.2d 48 (1942). We are unable to accede to that viewpoint.

Both vehicles were proceeding eastward on Broadway near 15th Street in Louisville. 15th Street is one-way for northbound traffic. Broadway is a six-lane street with three 10-foot lanes for traffic moving in each direction, east and west. The defendant Lamker, driving a truck, was making a left turn to go north on 15th Street when a 1958 model Renault passenger car driven by the plaintiff Mrs. Quackenbush collided with the left rear portion of the truck. Numbering the eastbound traffic lanes on Broadway as 1, 2 and 3, No. 1 being the outer or southernmost, No. 2 the middle, and No. 3 the inner or northernmost lane next to the center line of the street, Mrs. Quack-enbush says that she was going straight along lane 3 about five feet behind and to the left of the truck, which was in lane 2, when suddenly and without warning the truck cut to the left across her line of travel and her car struck it on the left side near its rear wheels. Lamker denies this and says he was in lane 3 all the time until he made the turn; that he had activated his left turn signal and paused momentarily to allow westbound traffic to clear the intersection and had then started turning across the center line of Broadway onto 15th- when the Renault, which he had not noticed behind him, hit the left rear part of the truck.

Lamker said the bed of the truck was a little better than six feet wide and the truck itself 14 or 15 feet long. There was no other evidence of dimensions, including the size of the Renault. We may take judicial notice, however, that the Renault was what is commonly called a “compact” car, much smaller than the truck shown in the photographs introduced in evidence.

The license plate of the truck was located underneath the bed behind its left rear dual wheels, which also were beneath the overhang of the bed. The only evidence of damage to the truck was that the license plate was dislocated or dislodged and there were scrape marks under the bed between the left rear wheels and the back end of the truck, “up over where the license plate would be.”

According to the police officer who investigated the accident, most or all of the debris appeared to have been deposited by the Renault and was entirely within lane 3. It indicated that at the moment of impact the Renault had moved partially into the crosswalk. When he arrived on the scene the Renault had not been moved and was standing wholly within lane 3, headed east but “slanted slightly” (in which direction he did not say).

Photographs of the Renault in its damaged condition suggest that the impact centered along a vertical line just to the left or inside of the right front headlight (which was not broken). Whether the hood of the car at this point was high enough to engage the corner of the truck bed is doubtful. Mrs. Quackenbush said, “I did not hit the wheel. I hit the steel under the bed of the truck.” She testified also that her car “just jammed under” the truck.

The pictures of the truck disclose several things with which the automobile could have come into contact after running up under the bed. They include, for example, one of the leaf-type springs which rest on the rear axle inboard from the dual rear wheels, and which extend in a fore-and-aft direction from the axle; the differential housing at the center of the rear axle; and the steel framework beneath the bed, to which the license plate is bracketed. The latter-mentioned framework presents a sharp corner just inside and to the rear of the license plate, and from the photographs it would have been altogether reasonable for the jury to deduce that the crease to the left of the Renault’s right front headlight resulted from collision with this corner, which appears to be from two to three feet inside the left edge of the truck bed.

The strong point made by appellants is that the right front portion of the Renault, which unquestionably was within lane 3 at all times, could not have come into contact with the left side or rear of the truck if the truck also had been entirely in lane 3 when Lamker began to execute his leftward turn. Considering, however, that we do not have the dimensions of both vehicles, do not know their relative positions within the 10-foot expanse of lane 3, and do not know the exact part of the truck with which the car came into contact (this alone distinguishing the case from Ison v. Mullins and Crain v. Jones), that conclusion does not necessarily follow. Moreover, it is quite possible that the jurors decided that the truth lay somewhere between what Mrs. Quackenbush said and what Lamker said — for example, that the truck was not entirely within either lane 3 or lane 2 when its turn was begun, but was astraddle the dividing line between them. On this hypothesis, if Lamker gave due notice of his intention to make the turn, as he says he did (even, indeed, if he was completely within lane 2), it would not have been unreasonable for the jury to find that Mrs. Quacken-bush was contributorily negligent.

The factual details of this case distinguish it from all of those cited by appellants in support of their contention that they were entitled to a directed verdict, and it is our opinion that the possible negligence of the respective parties was properly submitted to the jury.

The judgment is affirmed.


text:
    C. L. BLANCETT, Mayor, et al., Appellants, v. S. C. MONTGOMERY et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.

      William E. Quisenberry, Calhoun, for appellants.
    William G. Craig, Ronald M. Sullivan, Sandidge, Holbrook, Craig & Hager, Owensboro, for appellees.
   MONTGOMERY, Judge.

This appeal is from a judgment holding void as unconstitutional an ordinance of the City of Calhoun, of date August 6, 1957, which prohibits exploration for oil or gas within its corporate limits. The trial court found the ordinance was unreasonable, arbitrary and discriminatory, and also that it contravened the express public policy of the Commonwealth of Kentucky. Appellants, who are the mayor and the councilmen of the City of Calhoun, were enjoined from doing any act to enforce the ordinance.

The primary question to be resolved in this appeal is: Assuming the ordinance adopted by the City of Calhoun on August 6, 1957, forbidding the exploration for oil and gas within the corporate boundary of that city to be invalid, does the general zoning ordinance, duly and regularly passed by it on September 3, 1963, prevent drilling for oil and gas in an area classified as R-2 (residential), wherein no commercial operations are permitted? There are other contentions raised which will be answered in the course of this opinion.

The City of Calhoun is a fifth-class municipality, consisting of 355.18 acres and having a population in 1960 of 817 persons. It is also the county seat of McLean County. On August 6, 1957, the city council of Calhoun adopted its prohibitory ordinance dealing with the exploration for minerals including oil and gas within the city limits. Thereafter, after more than two years of planning, the city council of Calhoun enacted a general zoning ordinance on September 3, 1963, affecting all property, classifying in five ways the land use within that city.

In April 1965, oil was discovered in paying quantities on a 28.6-acre tract which joins the east boundary of Calhoun. Soon oil was found on two other tracts in that vicinity. One well is within 150 feet of the city limits. This action was instituted to have the ordinance of August 6, 1957, declared void. In their complaint appellees, landowners inside the city limits whose property is contiguous to the territory where oil is being extracted, averred that oil in commercial quantities has been found on land adjacent to the City of Calhoun and adjoining their land; that the pumping of such substance from underneath the adjacent land is having the result of draining it from underneath their property; and that the effect of the prohibitory ordinance arbitrarily and unreasonably prevents them from protecting their property rights by recovering therefrom any oil that may be explored for and produced on their land. The ordinance in the given instance, they alleged, constitutes an infringement upon their constitutional rights in that it allows their property to be taken from them without due process of law.

The area in which oil wells are proposed to he sunk is a tract of land, for the most part vacant, located on the Green River in the southeastern portion of the city. It is situated only 2 blocks from the business district of the city, and in this district is included the courthouse and the county buildings. Under the general zoning ordinance of September 3, 1963, the area was classified solely for residential use. The trial court did not pass upon the question of whether to permit drilling in the area proposed by appellees would or would not violate the zoning ordinance now in effect.

A witness introduced by appellants testified concerning conditions which still exist in the town of Sebree, Kentucky, where drillings for oil were conducted some ten or twelve years ago. In one particular park area, salt water produced from the sinking of wells had killed all of the trees with the possible exception of one tree which is now half-living; and no vegetation had grown in the area during or since that time. Another witness of appellants told of his experience with drilling operations in Liver-more, Kentucky, where oil wells were sunk within its city limits more than thirty years ago. This person stated that since that time he had been unable to get vegetation to grow, except for a small amount of grass, in the area of the slush pits.

Also, another witness of appellants, who lives in the portion of the City of Calhoun in close proximity to the land where drilling operations have been in progress for some' time, testified that because of the increased movement of traffic he was unable to use his driveway; that big trucks deposited mud and other filth upon a newly constructed blacktop road which created clouds of offensive dust when it became dry; and that the noise from the drilling machinery was so intense he was unable to sleep or enjoy his home life.

The Legislature of Kentucky has granted to municipalities of the fifth class the power to regulate and restrict the use of land for the common benefit. The relevant statute, KRS 100.520, which sets forth the purpose of zoning in such a city, reads:

“Regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. The regulations shall be made with reasonable consideration of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land.”

The case at bar presents an unusual zoning problem of first impression in this state. Other jurisdictions, however, have resolved the precise question now before us. It has been observed there is a substantial difference between an enactment which does not allow a manufacturing or commercial business in a residential district which may be conducted in another locality with equal profit and advantage, and one which has the effect of wholly depriving the owner of land of the natural products thereof and of the right to remove or work them. This distinction becomes one of degree as to the hardship imposed, for it may be assumed that some hardship, actual even if not recognizable in law, results to one who is prevented from utilizing his land in this regard. See annotation to 168 A.L.R. 1198.

The validity of a general regulation must therefore be tested by the general principles of constitutional law applicable to the particular challenge interposed. Most general regulations, of course, involve an exercise of the police power, with its accompanying rule of “reasonableness.” See annotation to 168 A.L.R. 1189.

In Fried v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 258 S.W.2d 466, we held the justification for a zoning restriction is the greater benefit which accrues to the public as a whole, and hardship to an individual is not sufficient to show that the action was arbitrary or discriminatory. In City of Richlawn v. McMakin, 313 Ky. 265, 230 S.W.2d 902, this Court pointed out that if the activity sought to be substituted by rezoning as commercial a residential district would lessen the beauty and safety and increase the noise and confusion of a particular area, a denial of the proposed change would not be unreasonable and arbitrary, within the purview of KRS 100.520. That opinion also contained this relevant statement:

“ * * * The presumption is in favor of the ordinance and the burden is on the property owner attacking it to show its unreasonableness. Should reasonable minds differ as to whether the restriction has a substantial relation to the public health, morals, safety, or general welfare, the ordinance must stand as a valid exercise of the police power. * *

It was stated in Schloemer v. City of Louisville, 298 Ky. 286, 182 S.W.2d 782, that “ * * * It is the function of the legislative body of the city to determine whether or not conditions warrant a zoning ordinance, and its determination on the subject will not be disturbed in the absence of a showing that its action was arbitrary or an irrational exercise of power having no substantial relation to the public health, morals, safety or general welfare. * * *

In Marblehead Land Co. v. City of Los Angeles, 9 Cir., 47 F.2d 528, a city ordinance was upheld which forbade oil well drilling on a 291-acre tract of unimproved land, seven miles from the heart of the city and 1100 feet from the nearest home. Standard Oil Company of California had leased the property for the sum of $65,000 to explore for oil and gas and had spent an additional $136,000 developing the lease. The City of Los Angeles zoned the property residential and denied a permit to explore for oil and gas. The Marblehead Land Company brought suit against that city claiming the zoning ordinance amounted to the taking of property without due process of law, in violation of its constitutional rights, and that the zoning ordinance was an unreasonable exercise of the police powers.

The United States Circuit Court of Appeals of the Ninth District reasoned that the legislative body of a municipality entrusted with police power has a wide discretion in exercising such power; that ordinances of a municipality enacted pursuant to its police power are invested with a strong presumption of validity; and that if a question arises whether an ordinance is an unreasonable or arbitrary exercise of police power, the ordinance must be upheld as valid. That court also declared it is a matter of common .knowledge that oil wells, particularly in new territory, sometimes get beyond control and cause disastrous fires.

Some of the cases arise where a municipality by ordinance allows drilling in the corporate limits within one zone and prohibits it in another. In answer to certain persons who complained that such a system was an arbitrary exercise of power because they were denied the right to exploit their lands for oil, it was said in K. & L. Oil Co. v. Oklahoma City (DC Okla.) 14 F.Supp. 492: “* * * Taking the situation as it now exists, can reasonable men honestly differ as to the zoning of this tract for oil ? If they can, then the Council and not the court is the one to determine the question. * ⅜ *»

As a general proposition a valid exercise of the police power resulting in expense or loss of property is not a taking of property without due process of law or without just compensation, nor does it abridge the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. See McQuillin, Municipal Corporations (3d ed.), Vol. 6, secs. 24.05, 24.06.

Perhaps the foundation case on zoning powers in Kentucky is Fowler v. Obier, 224 Ky. 742, 7 S.W.2d 219, whereby the initial zoning ordinance of the City of Louisville was attacked on the general grounds alleged in the instant case, that it amounted to a taking of property without due process of law and that it was an unreasonable and arbitrary exercise of legislative power. In a long detailed opinion, the Court found that the ordinance did not constitute the taking of property without due process of law and that the ordinance was a reasonable exercise of the police power. The Court further held that regardless of specific authority delegated to the city by the Legislature to zone, the city had sufficient power under the general police power to enact a zoning ordinance.

Appellees argue that KRS 353.500 declares the public policy of Kentucky as to the correlative rights of land and mineral owners, on the one hand, and of cities, on the other. They assert the foregoing statutory provision restricts the power of any city to prohibit the business of drilling for oil and gas within its limits; they maintain a city may do nothing more than regulate, that is, state where wells may be sunk. They call attention to the fact that the duly authorized officer of the Commonwealth of Kentucky, the Director of Oil and Gas, has issued a permit to them to explore for and recover oil or gas on their lands. It is, therefore, urged that the City of Calhoun is without authority to interfere with the prerogative reposed in and exercised by the Director of Oil and Gas.

No persuasive authority is cited which upholds the position taken by appel-lees. It is the view of the Court that the statement of policy must be interpreted in conjunction with and subordinate to the basic powers possessed by municipalities. The Court does not concur in the argument that KRS 353.500 preempts the authority of municipalities under their police power to regulate oil and gas activities within their city limits. It is concluded that the general zoning ordinance of the City of Calhoun adopted September 3, 1963, is a valid ordinance which controls to the extent it classifies land uses permitted under its terms.

The judgment is reversed and the case is remanded for the entry of a new one consistent with this opinion.


author: MILLIKEN, Judge.

text:
    James Herbert FULTZ, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.

      James Herbert Fultz, pro se.
    Robert Matthews, Atty. Gen., John B. Browning, Asst, Atty. Gen., for appellee.
   MILLIKEN, Judge.

From a conviction of armed robbery, defendant appealed on the ground that the trial court erred in refusing to appoint other counsel to represent him after he had requested dismissal of the lawyer originally appointed. He was permitted to appeal forma pauperis and a transcript of the record and testimony was supplied.

On July 7, 1964, the appellant, James Herbert Fultz, forcibly took a pistol from Carl Johnson, a police officer, while detaining him with a sawed-off shotgun. The appellant admitted he took the gun, but said he was in fear of his life because the officer with Johnson, Ed Hall, had beaten him on a previous occasion while arresting him. The appellant had the officer’s pistol the next day when arrested.

The appellant contends that he was denied the right to counsel because the court refused to appoint another attorney after the appellant had requested dismissal' of his originally appointed counsel. The appellant, moved to permit him to discharge his attorney, and further moved the court to appoint another attorney for him, the alleged reasons being that his attorney was not “properly or helpfully representing his case.” The court advised the appellant that in the estimation of the court the appointed counsel was “able and capable,” and that the court would not appoint other counsel, but that the appellant could represent himself if he so elected, which he did.

When counsel has been appointed by the court, the defendant is not entitled to dismiss counsel and have a substitute appointed except for adequate reasons or a clear abuse by counsel. Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363 (1959); United States ex rel. Robinson v. Fay, 2 Cir., 348 F.2d 705 (1965). Of course, the right to counsel can be waived as the appellant chose to do in this case. Davenport v. Commonwealth, Ky., 390 S.W.2d 662 (1965). In the case of Tanner v. Commonwealth, Ky., 375 S.W.2d 694 (1964), it was held that a defendant convicted of armed robbery and sentenced to life imprisonment effectively waived his right to counsel where the court had appointed counsel to represent him, but the defendant elected to represent himself after being informed that he could not have the lawyer he wanted.

RCr 9.04 provides that if the Commonwealth consents to the reading to the jury of affidavits setting forth the testimony of absent witnesses, the trial shall not be postponed on account of their absence. The appellant contends that he was denied the evidence of two physicians who would have testified that they treated him after police beatings. The affidavits of the missing witnesses were read to the jury and the trial court instructed the jury to treat the affidavits as the testimony of those witnesses. The jurors returned a verdict of guilty ten minutes after the case was submitted to them, and the trial judge polled the jury to make sure that the verdict was unanimous.

The judgment is affirmed.


text:
    Walter HAMMERSHOY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    Walter Hammershoy, pro se.
    Robert Matthews, Atty. Gen., Joseph Eckert, Asst. Atty. Gen., for appellee.
   PALMORE, Judge.

Appellant, Walter Hammershoy, was convicted of armed robbery (KRS 433.140) and sentenced to life imprisonment by a judgment of the Pike Circuit Court entered on March 11, 1965. An indigent, he was represented at the trial by court-appointed counsel. On the day the judgment was entered his counsel filed a notice of appeal (RCr 12.52) in his behalf and appellant himself, pro se, moved the court to designate an attorney to prosecute the appeal. The motion was supported by an appropriate affidavit and recited the following circumstances:

“His attorney assigned by the Court has advised him that his appointment by this Court initially extends through trial and the preliminary steps to perfecting an appeal. He is unable, at this time, to employ counsel.”

The record does not contain a copy of any order responsive to the motion.

On September 7, 1965, now a prisoner in the penitentiary at Eddyville and again acting pro se and in forma pauperis, appellant filed in the Pike Circuit Court an RCr 11.42 motion to vacate the sentence, in which he set forth certain substantive grounds of error and alleged that he had been deprived of an appeal because his court-appointed counsel failed to perfect it after agreeing to do so. The instant appeal is taken from an order overruling the motion without a hearing.

The order overruling the motion recites the following information which is not otherwise shown on the face of the record:

“The movant had an attorney considered one of the best with knowledge to Criminal Law and well represented the defendant. The court after the trial entered an order reappointing the same attorney along with another competent attorney to investigate the defendants rights and for the purpose of appeal if they felt an Appeal would be feasable [sic]. In view of the foregoing it is ordered that the movant’s motion to vacate judgment be, and the same is hereby overruled.” (Emphasis added.)

If we are correct in our interpretation of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the right of an indigent defendant in a criminal case to the assistance of counsel on appeal, secured by the Fourteenth Amendment, cannot be subjected to a determination by either a court or state-provided counsel that the grounds for appeal are meritorious, or “feasible.”

It was remarked in McIntosh v. Commonwealth, Ky., 368 S.W.2d 331, 335 (1963), that an attack on the trial judgment is not the appropriate remedy for a frustrated right of appeal. However, Lane v. Brown, supra, indicates that it is, subject to the condition that such relief may be denied if within a reasonable time the state provides the movant an appeal on the merits, including assistance of counsel. See, for example, Cruz v. People, Colo., 405 P.2d 213 (1965).

“When counsel is appointed to represent an indigent in this jurisdiction he is to assist him throughout the proceeding, unless and until otherwise directed by an order of the court before which the cause, is pending at the time of the latter order.” Maye v. Commonwealth, Ky., 386 S.W.2d 731, 733 (1965). This includes the duty to assist him on appeal if he so requests. We recognize that it is an onerous obligation, but our profession is saddled with it nevertheless.

The appellant demanded the assistance of counsel on appeal and was denied it. He was indigent. He must therefore be provided with a review of his conviction with the help of counsel or the conviction must be vacated. The trial court shall have 30 days following issuance of the mandate in this proceeding in which to appoint counsel or vacate the conviction and sentence. Time for filing the record on appeal as prescribed by RCr 12.58 shall run from the date of the appointment of counsel.

The cause is reversed for further proceedings consistent with this opinion.

MONTGOMERY, J., dissents.

      . See Jones v. Commonwealth, Ky., 388 S.W.2d 601 (1965), suggesting the impropriety of supplementing the record in this ea> parte fashion.

      . Lane v. Brown was a habeas corpus proceeding, whereas this case arises on a motion to vacate, but the principle is the same.


author: CULLEN, Commissioner.

text:
    Charles WALKER, Appellant, v. John WINGO, Warden, Kentucky State Penitentiary, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    Charles Walker, pro se.
    Robert Matthews, Atty. Gen., Frankfort, for appellee.
   CULLEN, Commissioner.

Charles Walker, who is serving a life sentence in the penitentiary under an October 1963 conviction of armed robbery, has appealed from an order of the Lyon Circuit Court dismissing a habeas corpus petition filed by him in November 1965 by which he sought to have the judgment of conviction declared void on the ground that he was denied right of counsel at the time he was arrested and made a confession, and upon the trial. The circuit court, relying on Ayers v. Davis, Ky., 377 S.W.2d 154, held that habeas corpus would not lie because there was no showing that the remedy prescribed by RCr 11.42 was not adequate.

Late in 1964 Walker filed two motions under RCr 11.42 to vacate the judgment under which he is confined. Both motions were overruled. He appealed from the order overruling the second of those motions, and the order was affirmed. See Walker v. Commonwealth, Ky., 386 S.W.2d 452. He did not allege denial of counsel in either of those motions, but he reasonably could have, wherefore he is precluded, under the third subsection of RCr 11.42, from raising that issue in another 11.42 proceeding. He contends in the instant case that since he is precluded from raising the issue in an 11.42 motion, that rule does not provide an adequate remedy, so he is entitled to resort to habeas corpus.

The fact that a prisoner has lost his remedy under RCr 11.42 by failing properly to invoke it does not mean that the rule does not provide an adequate remedy within the meaning of Ayers v. Davis, Ky., 377 S.W.2d 154. That case makes clear that a motion under RCr 11.42 is the exclusive post-conviction remedy where it can or could have been resorted to for the purpose of testing the legality of the prisoner’s detention. And the rule itself makes plain the purpose to put a reasonable limit on the number of post-conviction proceedings that may be instituted by a prisoner. See Tipton v. Commonwealth, Ky., 398 S.W.2d 493 (decided January 21, 1966).

To accept Walker’s contention here would be to open the door to an endless, alternating succession of post-conviction proceedings. We do not accept it.

In passing we shall say that there appears to be no merit in Walker’s claim of denial of counsel. At the time he was arrested and confessed he did not request counsel. See Scamahorne v. Commonwealth, Ky., 394 S.W.2d 113. And upon the trial he refused to be represented by the counsel theretofore appointed for him and chose to represent himself. See Tanner v. Commonwealth, Ky., 375 S.W.2d 694.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Wayne MARCUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1966.
    Fritz Krueger, Somerset, for appellant.
    Robert Matthews, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.
   DAVIS, Commissioner.

Appellant, Wayne Marcum was sentenced to imprisonment for one year pursuant to a jury’s verdict finding him guilty of a third violation of the local option law. KRS 242.990(1). His appeal assigns errors in his conviction: (1) the indictment was defective; (2) incompetent evidence was admitted, and in any event the evidence did not support the verdict; (3) the instructions were erroneous, and (4) the Commonwealth’s Attorney made an improper argument.

We will not detail the allegations of the indictment further than to point out that the averments in it did adequately apprise appellant that he was charged with selling liquor in local option territory in April, 1965. The indictment also charged that the appellant had been convicted twice before for violations under the same law, citing the dates of these convictions. Although the indictment appears somewhat prolix and abstruse, it plainly was adequate in light of RCr 6.10. Brown v. Commonwealth, Ky., 378 S.W.2d 608.

The circuit court clerk introduced the official court records relating to the two prior convictions of appellant. A general objection to the testimony was interposed by counsel for appellant, which was overruled. Here the appellant contends that the evidence was incompetent because the indictment was defective. This argument is not tenable in light of our conclusion that the indictment was sufficient. However, our reading of the record reveals that the evidence of the circuit clerk did not affirmatively state that the commission of the alleged second offense occurred subsequently to the conviction of the charged first offense. The dates of these events leave an inference that such was the case, but the evidence in this respect should be specific.

The appellant attacks the instructions on two fronts. One of these is that the indictment was bad, but we have seen that such was not the case; hence this ground of attack fails.

The other challenge to the instructions is meritorious. By Instruction No. 2 the trial court properly advised the jury that if it believed beyond reasonable doubt that appellant had committed the prime offense, and further so believed that he had been convicted of local option offenses twice before—listing the respective dates of the convictions concerning which testimony had been adduced, and referred to in the indictment—the jury could assess punishment at confinement in the penitentiary for not less than one nor more than two years. KRS 242.990(1). This was appropriate as far as it went, but it was incomplete. The instruction failed to advise the jury that it had an option to believe from the evidence that appellant had been previously convicted on only one of the previous charges, in which event the statutory range of punishment would have been a fine of not less than forty nor more than two hundred dollars, and a jail sentence of not less than sixty nor more than one hundred twenty days. The failure to so instruct the jury was prejudicial error. Brown v. Commonwealth, Ky., 378 S.W.2d 608, 609; Tuttle v. Commonwealth, Ky., 331 S.W.2d 891, 893. Upon another trial the word “offenses” should be substituted for the word “felonies” in the third instruction.

Without discussing the merits of appellant’s challenge to the instructions, the appellee takes the position that appellant may not raise the question since the record is devoid of any showing of a specific objection to the instructions upon the ground just discussed. Cited in support tof appel-lee’s position are Piper v. Commonwealth, Ky., 387 S.W.2d 13; Rice v. Commonwealth, Ky., 387 S.W.2d 4, and Hartsock v. Commonwealth, Ky., 382 S.W.2d 861. We observe that appellant did raise objection to the instructions in a timely motion for new trial. The objection was in general terms. However, an order appears in which it is recited that the motion and grounds for new trial came on for hearing “ * * * and the Court being advised, overruled same * * *.” We will not indulge the speculation that counsel for appellant failed to argue the point now raised as to the error in the instruction. We pointed out in Hartsock, just cited, that there is no counterpart for CR 51 in the criminal rules. Thus, there is no requirement in the criminal rules -for written objections to the instructions — neither is it requisite that the objection be made before the instructions are given. We believe our ruling in Hartsock, followed in the other two cases just cited, extends the rule enough. At least, in the absence of any claim or showing that the specific objection was not made known to the trial court, we may not assume that it was not. Better practice and fairness to the trial court direct that counsel lay bare all objections— and the bases therefor — to the trial judge. We express no opinion as to the effect of a record flatly disclosing that a particular basis for objection has not been argued— this record does not go that far.

The argument of the Commonwealth’s Attorney was improper, but as it will not recur on another trial, we shall not discuss it.

The judgment is reversed for proceedings consistent with the opinion.


author: GRIFFIN, Justice.

text:
    J. M. RECTOR, Jr., Individually and d/b/a Ponderosa Mills of Mexico, Petitioner, v. Gregorio DE ARANA, Respondent.
    No. A-10607.
    Supreme Court of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 2, 1966.
    R. H. Feuille, El Paso, for petitioner.
    Texas S. Ward, Gerald B. Shifrin, El Paso, for respondent.
   GRIFFIN, Justice.

Gregorio De Arana, as plaintiff, sued J. M. Rector, Jr., d/b/a Ponderosa Mills of Mexico, as defendant, in a district court of El Paso County, Texas, for damages resulting from a breach of a contract wherein Rector agreed to purchase from De Ar-ana 1,000,000 board feet of mill run lumber f. o. b. La Mesa Huracan, Mexico, at the price of $60.00 per 1000 board feet. After a jury trial and based on the jury’s answers to special issues, the trial court rendered judgment in favor of De Arana against Rector for $20,680.00. On appeal to a Court of Civil Appeals that court required De Arana to make a remittitur of $1,574.95 as a condition of having the trial court’s judgment affirmed. De Arana made the remittitur as required, whereupon the Court of Civil Appeals affirmed the trial court’s judgment in the sum of $19,113.05. 385 S.W.2d 503.

We reverse the judgment of the Court of Civil Appeals and remand the case to that court for determination of the amount of remittitur consistent with this opinion.

The contract covered the sale and purchase of 1,000,000 board feet of “mill run” lumber. Those provisions involved in this cause are the following:

Paragraph three provided that the lumber should be shipped from the sawmill [at La Norteña] to a designated loading place in La Mesa Huracan, Chihuahua, “and loaded for its exportation from that point.”

Paragraph four reads: “The price of $750,000 MM (Mexican money) f.o.b. La Mesa, #4 and better mill run, including normal percentage of molding and better.”

On April 29, 1958, when the contract was signed, De Arana had stored in his sawmill yard at La Norteña, Mexico, approximately 1,700,000 board feet of lumber with which to fulfill his contract. A Mr. Kent, representing Ponderosa Mills, had made a visual inspection of this stacked lumber at La Norteña prior to the execution of the contract. The lumber was to be delivered to Rector d/b/a Ponderosa Mills in four lots of 250,000 board feet each. Ponderosa had a representative at La Mesa Huracan to inspect and assist in the separation of the lumber. De Arana had the first 250,000 board feet of lumber at the railroad siding by May 25, 1958. Jesus Godina, Ponder-osa’s representative at La Mesa, refused to accept the lumber because he claimed it was not of the quality called for by the contract. Mr. Wurm, Ponderosa’s general manager, refused to accept and pay for the lumber. Ponderosa refused to accept and pay for any part of the 1,000,000 board feet of the lumber on the same grounds. It is undisputed that Mr. De Arana had in his yard at La Norteña more than 750,000 board feet of lumber of the same grade and quality as the initial 250,000 board feet and that he was willing and able to fulfill his contract. The case was tried to a jury and in answer to Special Issue No. One, the jury found that the lumber tendered by De Arana to Ponderosa Mills was of the grade and quality called for in the contract. That finding has not been attacked. Therefore, Ponderosa Mills is before the Court as having wrongfully failed to carry out its contract to purchase the 1,000,000 board feet of lumber from De Arana.

The trial court submitted only three issues to the jury and there were no objections on the part of either party. In answer to Issue No. One, the jury found the lumber tendered fulfilled the requirements of the contract as to grade and quality. Issue No. Two asked the market value of the 250,000 board feet of the lumber transported to La Mesa Huracan “immediately after the defendant rejected same.” The jury answered, $9,830.00,” which is the same as $39.32 per thousand board feet. In answer to Issue No. Three, the jury found the market value of $39.32 per thousand board feet for the 750,000 board feet “remaining to be transported to La Mesa Huracan immediately after defendant” rejected the 250,000 board feet. This total for the 750,000' board feet was $29,490.00. The sum total was $39,320.00.

The trial court rendered judgment for plaintiff De Arana for $20,680.00, which was the difference in the contract price of $60,000.00 and the market value of $39,320.-00 of the 1,000,000 board feet at La Mesa Huracan, immediately after the defendant Ponderosa Mills breached its contract to purchase this lumber.

Under the facts of this case, the trial court tried the case and rendered judgment based on the correct measure of damages, i.e., the difference between the contract price and the fair market value at the time and place of delivery. Sour Lake Townsite Co. et al. v. B. Deutser Furniture Co. (1906), 39 Tex.Civ.App. 86, 94 S.W. 188, writ refused; J. B. Marion, etc. v. Cadenhead et al. (Tex.Civ.App., 1964), 376 S.W.2d 807, no writ history; and Smith v. Ratliff (Tex.Civ.App., 1942), 157 S.W.2d 945, no writ history; 51 Tex.Jur.2d 275, § 457.

Upon appeal to the Court of Civil Appeals, the defendant Ponderosa Mills, as appellant, had an assignment that there was “no evidence” to support the jury’s answers to Issues Nos. Two and Three finding $39.32 as such market value. In addition, Ponderosa had an assignment that the jury’s answers to the two issues were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. The Court of Civil Appeals analyzed all the evidence and said “that the jury’s answers to Special Issues Nos. 2 and 3 placed a lower valuation on the lumber at the time in question than the values presented to the jury in any testimony.” After discussing the evidence, the Court of Civil Appeals “ * * * concluded that appellant’s Points of Error Nos. 1 and 2, based upon ‘no evidence’, must be overruled,” but sustained the appellant’s points of error “that the jury’s answers to Special Issues Nos. 2 and 3 are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.” Having made this holding, the Court of Civil Appeals said that since this was true, the trial court’s judgment for plaintiff De Arana was excessive, and it proceeded to calculate the amount of remittitur it should require as a condition to affirmance of the trial court’s judgment. Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958); Carter v. Texarkana Bus Company, Inc., 156 Tex. 285, 295 S.W.2d 653 (1956). It calculated the remittitur as $1,-574.95. The plaintiff filed the remittitur and the trial court’s judgment was reduced in this amount and the judgment affirmed in the sum of $19,105.05. The Court of Civil Appeals arrived at this figure by subtracting from the contract price of $60,000.-00 the “amount of money subsequently received by appellee (De Arana) for the lumber, less cost of transportation to market * * * ff

Ponderosa Mills, as petitioner in this Court, has not brought forward its “no evidence” point, therefore, we have no jurisdiction to rule on it. It complains that the Court of Civil Appeals used the wrong rule of law as to the measure of damages. We sustain this point.

The Court of Civil Appeals having found that the jury’s answers as to market value of the lumber are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust and that this results in the trial court’s judgment being excessive, it is the duty of the Court of Civil Appeals to determine the amount of such excess.

The amount of the remittitur to be required should be any excess over the difference between the contract price of $60.00 per thousand board feet f. o. b. La Mesa and a figure representing fair market value found by the Court to have support in evidence of probative force and which, in the opinion of the Court, is not contrary to the weight and preponderance of the evidence. Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826 (1958) and authorities therein cited; Houston Belt & Terminal Ry. Co. v. Lynch et al (Comm. of Appeals) 221 S.W. 959; Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916). Generally, the contract price is not the market value of the property unless the evidence supports such finding. St. Louis & S. F. Ry. Co. v. Blocker (Tex.Civ.App., 1911), 138 S.W. 156, writ refused; Felker v. Hyman (Tex.Civ.App., 1911), 135 S.W. 1128, 1130, no writ history.

If the evidence shows no market value at La Mesa immediately on purchaser’s default, then the fair market valúe at the nearest market, less reasonable transportation costs from La Mesa to such market will determine the figure to be deducted from the contract price to arrive at seller’s damages.

The cause is remanded to the Court of Civil Appeals to determine the amount in which the trial court’s judgment is excessive, consistent with this opinion.


author: STEAKLEY, Justice.

text:
    FIRST NATIONAL BANK OF BOSTON, Petitioner, v. Max SILBERSTEIN et al., Respondents.
    No. A-10914.
    Supreme Court of Texas.
    Feb. 2, 1966.

      Sneed & Vine, J. P. Darrouzet, with above firm, Austin, for petitioner.
    Cofer & Cofer, Austin, for respondents.
   STEAKLEY, Justice.

This case involves the personal liability of officers and directors under Article 12.-14 for debts of a corporation after its right to do business has been forfeited by the State of Texas. Liability was adjudged against the Respondents by the trial court but this action was reversed by the Court of Civil Appeals. 391 S.W.2d 573. We hold, contrary to the views of the Court of Civil Appeals, that liability of Respondents was established.

The facts were stipulated. The corporation is known as Saul’s of Fort Worth, Inc., of which Respondents were officers and directors at all relevant times. It operates a store in Fort Worth. The corporation became delinquent in payment of its franchise taxes to the State and on July 2, 1954, its right to do business was forfeited. On April 30,1956, the corporate charter was forfeited. No payments have since been made to the State. The franchise tax matters were handled by one Joe Brooks, an auditor of Dallas, and Respondents did not have actual knowledge of the franchise tax delinquencies and the forfeiture of the right of the corporation to do business at the time the debts sued on were incurred.

During July, August and October of 1960, the corporation purchased merchandise for its Fort Worth store from Top-O-Mart, Inc., of the total value of $1,867.58. The account was thereafter assigned to Petitioner who later instituted this suit on the debt. The merchandise purchase transactions were personally handled by one Sherman Resnick, the manager of the Fort Worth store, and the invoices therefor were forwarded to Respondents in Austin after delivery of the merchandise to the store and checking and approval by Resnick. Respondents did not personally participate in the transactions in Fort Worth and hence did not have knowledge of Resnick’s various purchases at the time they were made; they did, however, acquire knowledge of the debts when the approved invoices were sent to them and no contention is made that they did not at such time consent to and approve the debts thus created and incurred. We consider it also clear under the stipulated facts that Respondents knew that the manager of the Fort Worth store would incur obligations for merchandise in the regular course of business as he was authorized to do, and that knowledge of the specific purchases and the debts therefor would be brought to their attention by the approved invoices they would receive from their Fort Worth manager.

Article 12.14 provides:

“* * * Each director and officer of any corporation whose right to do business within this State shall be so forfeited shall, as to any and all debts of such corporation, which shall include all franchise taxes and penalties thereon which shall become due and payable subsequent to the date of such forfeiture, and which may he created or incurred, with his knowledge, approval and consent, within this State, after such forfeiture by any such directors or officers, and before the revival of the right of such corporation to do business, be deemed and held liable thereon in the same manner and to the same extent as if such directors and officers of such corporations were partners.” (Italics added)

We first note in regard to the stipulated facts that the statute does not purport to require actual knowledge on the part of the officers and directors of the franchise tax delinquencies of the corporation and the forfeiture of its right to do business as a condition to personal liability for subsequently incurred corporate debts. The statute takes for granted that officers and directors will know these facts or, in any event, does not make such knowledge a condition to liability. It is further clear under the statute that after a corporation no longer has the right to do business the personal liability of officers and directors for subsequently incurred corporate debts is limited to those debts of which they have knowledge and, with the opportunity afforded thereby, which they have consented to and approved. This does not mean that officers and directors are personally liable only for debts of the corporation which they personally create, or which are created in their presence, or of which they have contemporaneous knowledge. There is no implication in the wording of the statute that these circumstances are conditions to liability or that knowledge must co-exist in exact time with the purchase transaction giving rise to the debt. To the contrary, the reasonable construction of the statute to the facts at hand is that personal liability is determined by the acts of Respondents in consenting to and approving the debts of the corporation where knowledge of their creation is shown to have come to them in the regular course of the business of the corporation. This is neither imputed knowledge nor “vicarious” liability as Respondents suggest; it is liability which results from and is attributable to the acts of Respondents. They had only to disapprove and disavow the debts to avoid personal liability; but having consented to and approved the debts, they became personally liable therefor.

This construction of the statute was represented by our recent approval in such respects of the opinion of the Court of Civil Appeals in Hicks v. Continental Carbon Paper Mfg. Co. of Dallas, 380 S.W.2d 737 (1964), with a per curiam opinion relating to other matters, 302 S.W.2d 910. In Hicks there was a fact finding by the trial court that the officers and directors in question “each had actual knowledge of and approved of and consented to the creation of the debt.” The conclusion of law of the trial court approved by the Court of Civil Appeals was that the officers and directors “having been officers and directors of the de facto corporation and having had actual knowledge of plaintiff’s debt and having consented to and approved of its creation are personally liable to the plaintiff to the same legal extent as if they were partners * * *.” It was clear to us from the record in the case that the findings of fact of the trial court and the holding of the Court of Civil Appeals were directed to a situation where the debts for which the officers and directors were held liable were incurred in the regular course of the business of the corporation. We did not regard the opinion of the Court of Civil Appeals as having been written in context of a fact situation where the officers and directors personally incurred the debt or had contemporaneous personal knowledge thereof since these were not the facts shown in the record.

Decisions under Article 12.14 or its predecessor statute prior to Hicks did not decide the question at hand. Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79, 168 A.L.R. 1074 (1946), was written in the context of a renewal note executed by officers of the corporation after the right of the corporation to do business had been forfeited. The holding was that the renewal of a prior existing obligation was not the creation or incurring of a debt within the purview of the statute and the officers should not be charged with statutory liability for recognizing a debt previously binding on the corporation. Sheffield v. Nobles, 378 S.W.2d 391 (Tex.Civ.App.1964, writ ref.), enforced the statute against an officer who himself created the debt. See also Whitehead v. Bulkley, 37 S.W.2d 1112 (Tex.Civ.App.1931, no writ hist.), Groce-Parrish Co. v. Yokey, 81 S.W.2d 273 (Tex.Civ.App.1935, no writ hist.), held that the requirements of the statute were not met where there was no “suggestion” that the corporate officers had ever approved or consented to the incurring of the account. Guerra v. Contreras, 52 S.W.2d 295 (Tex.Civ.App.1932, no writ hist.), was based on the undisputed proof that the debt sued on was created wholly without the knowledge, approval or consent. of the officer who w'as sought to be held liable.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . The reference is to Article 12.14 of Title 122A, Taxation-General, Vernon’s Annotated Texas Statutes, Vol. 20A.


author: GREENHILL, Justice.

text:
    Ex parte Charles Edward PROCTOR.
    No. A-11013.
    Supreme Court of Texas.
    Jan. 26, 1966.
    Sam Burns, Houston, for relator.
    Rex Henger, Houston, for respondent.
   GREENHILL, Justice.

Pending an action for divorce, Charles Edward Proctor, the relator, was ordered to pay to his wife the sum of $30 per week for the support of a minor child. In April of 1965, the wife, after the divorce, filed a complaint stating that Proctor had failed to make the payments and alleging that he was delinquent in the amount of $670. The court thereupon issued an order to Proctor commanding him to appear and show cause why he should not be held to be in contempt. Proctor was served with a copy of the wife’s complaint and the court’s show-cause order.

On June 25, 1965, the Court of Domestic Relations No. 2 of Harris County entered a judgment upon a printed form. It began by stating that Proctor stood charged with contempt for failure to pay the sum of $30 per week. It does not, however, find or recite the amount in which Proctor was in arrears in his payment. The judgment then recites due service upon Proctor and says that after hearing the evidence and argument of counsel, the court was of the opinion that Proctor was in contempt because of his failure to make the child support payments, and the court so found.

Then the printed-form judgment states, with the words filled in the blanks, as follows: “* * * and his punishment for such contempt is hereby fixed by assessing against him a fine of $-and commit-ing him to the County Jail of Harris County, Texas, for 3 days, and it is further Ordered that the said Charles Edward Proctor should pay the sum of $550 as child support payments to Sidonia Ruth Proctor [the wife], and also by paying all costs incurred herein, and upon such payments, the said Charles Edward Proctor shall be released from custody.”

Proctor served his three days in jail but has not paid the $550 and costs. He sought and obtained an original writ of habeas corpus from this Court. He was released on bond pending the decision of this Court.

The printed form in question is exactly the same form, and issued by the same court, as that used in the case of Ex parte Savelle, Jr., 392 S.W.2d 113 (Tex.Sup.1965). The only difference is that in Savelle, the form read, “and it is further Ordered that the said George Monroe Savelle, Jr., may purge himself of such contempt by paying the sum of $300.00 * *.” In the case at bar, the form was the same, but the words in the printed form, “may purge himself of such contempt by paying” were struck out in pencil or by pen, and the words “should pay” were written in above the words which had been struck out. This variation does not change the legal effect of the judgment. If anything, it weakens it. Under the authority of Ex parte Savelle, supra, the relator Proctor is entitled to be released, and it is so ordered.

This holding does not disturb the recognized power of a court to confine a party for contempt until he obeys the order for which he has been held in contempt for disobeying. Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A. (N.S.) 1140 (1908); Ex parte Kottwitz, 117 Tex. 583, 8 S.W.2d 508 (1928). However, where this remedy is followed, the order should clearly state in what respect the court’s order has been violated and that the party is committed to jail until the court’s order is complied with to the extent required by the court. In the instant case, if the court had found that the relator was delinquent in the amount of $550 in support payments ordered to be paid in its judgment of December 22, 1964, and if the court had further found him in contempt and had committed him to jail for three days and until he had paid the $550 and court costs, the relator could have been held until he made such payments. In the instant case there was no finding that relator’s delinquent payments amounted to $550.


text:
    Ex parte George Monroe SAVELLE, Jr.
    No. A-10927.
    Supreme Court of Texas.
    Jan. 26, 1966.

      Joe B. Savelle, Houston, for relator.
    Frank C. Herzog, Houston, for respondent.-
   GRIFFIN, Justice.

In a prior divorce hearing, relator had been ordered to pay to Billie Nell Smith, his former wife, the sum of $150.00 per month for the support and maintenance of his four minor children. In that divorce action, the custody of the children was awarded to their mother, Billie Nell Sa-velle, now Billie Nell Smith.

On June 3, 1965, Billie Nell Smith filed in the court granting the divorce a complaint alleging that relator was two months in arrears in his support payment. A show cause order was duly served on relator and a hearing had on the complaint July 12, 1965. After having heard the evidence of all parties and their witnesses, the trial judge entered his order holding relator guilty of contempt and ordering him confined in the Harris County jail in accordance with such order.

The pertinent parts of the order are as follows:

“It is accordingly so ORDERED, ADJUDGED AND DECREED by the Court that the said George Monroe Savelle, Jr. be and is hereby held guilty of contempt of Court by reason of his failure and refusal to make the payments of child support in. defiance of the terms of the decree' -hereinabove referred to, and his punishment for such contempt is here fixed by assessing against him a fine of $- and committing him to the County Jail of Harris County, Texas for 30 (thirty) days, and it is further ordered that the said George Monroe Savelle, Jr. pay the sum of $300.00 as child support payments due in May and June, 1965, to Billie Nell Smith, and also by paying all costs incurred herein, and upon such payments and sentence, said George Monroe Savelle, Jr. shall be released from custody. LET, THEREFORE, commitment issue to the Sheriff of Harris County, Texas, accompanied by a certified copy of this judgment.”

The order attempts to confine relator in jail for “30 (thirty)” days as punishment for contempt. Art. 1911, Vernon’s Ann.Texas Civil Statutes, provides that the “district court may punish any person guilty of contempt * * * and by imprisonment not exceeding three days.” Therefore, the trial judge had no authority to order confinement for a longer period than three days. The record shows that relator was taken into custody July 13, 1965, and released July 19, 1965, so he has already served his three days and the excess above the three days is not a valid and binding order.

Relator contends that the trial judge had no authority to provide that he pay the sum of $300.00 (the amount of his arrears) before he can be released from confinement; also, relator has the same complaint as to his being held in jail until he shall pay the court costs which include attorney’s fees.

We do not sustain this contention. The case of Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953) discusses both of the above contentions, and held the trial court had power to require a defaulting parent to remain in jail until he had paid both the attorney’s fees assessed as costs and the sum of $5850.00 delinquency. In addition to the case of Ex parte Davis, 101 Tex. 607, 111 S.W. 394, 17 L.R.A.,N.S., 1140, cited by this Court in the Helms case, supra, see also the case of Ex parte Adair (Tex.Civ.App., 1949), 222 S.W.2d 324, no writ history. That court quotes the following excerpt from the case of Ex parte Tinsley, 37 Tex.Cr.R. 517, 40 S.W. 306, 311, 66 Am.St.Rep. 818, as follows:

“ * * * ‘If, under this statute, it was given to a party to refuse to obey the orders of a court by merely submitting to a fine of $100 and three days’ imprisonment, and then go free, still contumacious of the order of the court, the court would be rendered powerless to enforce its orders. * * * So far as the statute with reference to punishments for contempt is concerned, that is a mode of enforcing the rights of the court and of preserving its respect and dignity. It is a punishment. The other is not a punishment, but a specific mode of enforcing a particular duty.’ See also Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465; 9 Tex.Jur. sec. 26, p. 611.” (Tex.Jur. citation now is 12 Tex.Jur.2d 511-512, Sec. 33-34.)

The order entered in the case at bar is a finding against the relator of a deficiency, to-wit, his failure to pay the child support payments for the months of May and June, 1965, as provided by a previous decree of the court in the divorce proceeding. The court further provides in its judgment that upon the payments and serving the sentence of thirty (30) days in jail, he shall be released from custody.

This order differs from the order entered in Ex parte Savelle, Jr., Tex.Sup., 392 S.W.2d 113 (1965), and the order entered in Ex parte Proctor this day handed down by this Court (398 S.W.2d 917). The opinion in the Proctor case points out wherein the order in that ease was insufficient to legally justify the contempt order against Proctor for failure to make the support payments ordered in the contempt judgment. In the case at bar the court found Savelle in arrears for child support payments theretofore ordered, and the order shows that the amount he was required to pay to be released from jail was such arrearage or a part thereof. The Proctor case also discusses the requisite of a contempt order that will justify holding a relator in contempt.

See also Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119 (1957), wherein an attempt was made by a divorced wife to reduce the amount of her former husband’s delinquencies in child support and maintenance payment to a judgment against the husband. This attempt was denied on the ground that the enforcement of such delinquencies could be had only by eontempt action.

Relator complains that he is unable to make the payments, and therefore he cannot be held in custody for failure to do so. There is no statement of facts accompanying this record. The trial judge by his order impliedly found that relator was able to make the payments. In the absence of a statement of facts, we must presume that the trial judge’s finding was supported by evidence in the record. City of Galvestion v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952); Ex parte Wagner and wife, Tex.Sup., 368 S.W.2d 185-189 (1963).

Relator is remanded to the custody of the Sheriff of Harris County, Texas.

SMITH, J., notes his dissent.