author: SHANNON, Justice.

text:
    Albina PAJESTKA, Appellant, v. Josephine VISCARDI, Appellee.
    No. 12,641.
    Court of Civil Appeals of Texas, Austin.
    Jan. 18, 1978.
    Rehearing Denied March 1, 1978.

      James Chrisman Phillips, Graves, Dough-erty, Hearon, Moody & Garwood, Austin, for appellant.
    Malcom Smith, Austin, for appellee.
   SHANNON, Justice.

Josephine Viscardi, appellee, filed a declaratory judgment suit in the district court of Travis County. Viscardi sought a declaration of her right to use a driveway or alleyway located between her lot and the lot of Albina Pajestka, appellant. In addition, Viscardi sought the entry of an order permanently enjoining Pajestka from interfering with her use of the driveway.

Both parties filed motions for summary judgment. The district court entered summary judgment in favor of Viscardi. The judgment (1) declared that Viscardi had “ . . an easement, both public and prescriptive . . ” to use the driveway, and (2) permanently enjoined Pajestka from interfering with the use and enjoyment by Viscardi of her right of easement to the driveway. The court observed, in addition, that the issue of title was not before the court, and, hence, the judgment made no determination of title.

The driveway at issue is located in block 104 in the city of Austin. Block 104 is bounded by Ninth Street on the north; Rio Grande Street on the east; Eighth Street on the south; and West Avenue on the west.

The following drawing indicates the parties’ land and the disputed driveway:

Before 1915, Hooper held title to all of block 104. In 1915 Hooper conveyed all of lot 104 south of old city alleyway to Walter Bremond. Three days later Bremond conveyed the same land to the now nonexistent State National Bank of Austin, Texas. The bank subsequently conveyed all of its land in lot 104 except the northwest corner which is the same presently held by Pajest-ka. In 1921, the bank by written instrument “dedicated” an alleyway “ . . . for the benefit of the owners of any of the property in the South half of Block No. One-Hundred and Pour (104) . . . ” for their “ . . . use and benefit . forever.” The instrument, however, made no mention of Hooper’s use of the driveway. The bank conveyed all of its interest in lot 104 by 1925.

Since the creation of the driveway, lot owners in both the north and south halves of the lot have used the driveway. In 1976, Pajestka placed a chain across the driveway to block its use by Viscardi. One result of Pajestka’s blockade of the driveway was the filing of the lawsuit.

Viscardi seeks to sustain the district court’s judgment upon the basis that the bank’s conveyance of 1921 constituted a public dedication. Contrary to Viscardi’s assertion, the fact that the word, “dedicate,” was employed in the bank’s conveyance is not controlling. City of Newport v. Sisson, 51 R.I. 481, 155 A. 576 (1931); Joyce v. Brothers Realty Co., 127 So.2d 756 (La.App. 1961). The use of the word, “dedicate,” is not decisive of the character of the conveyance when considered with the other terms of the conveyance. An examination of the terms of the conveyance shows that the bank did not intend a public dedication, but instead, created an easement appurtenant for a selected group of lot owners.

Viscardi also defends the judgment upon the premise that she obtained a prescriptive right to the driveway. Both Pa-jestka and Viscardi, together with their respective predecessors in title, have continuously used the driveway since 1924. Viscardi, by word or deed, never communicated to the owner any intent to adversely claim an easement right. Viscardi’s use of the driveway was not inconsistent with the right of the owner to use the driveway. Accordingly, Viseardi’s use conferred no right in opposition to that of the owner. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 881 (1960); Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950).

By her fourth point of error Pajestka claims, in substance, that the district court erred in failing to enjoin Viscardi from using the driveway. The stated basis for the point is that the undisputed evidence shows fee simple title in Pajestka in the land underlying the driveway, unencumbered by any right of Viscardi. Pajestka concludes that, as fee owner, she is entitled to injunctive relief. Implicit, but not stated, in her argument is that, as fee owner, she was entitled to place the chain across the driveway.

Pajestka’s argument ignores the fact that title was never placed in issue in district court. As a result, the district court correctly observed that it could not, and did not, determine title. Likewise, this Court may not determine title. Under the record in this appeal, Pajestka is not a fee owner in the land underlying the driveway; instead, she has no more than an easement right to use the driveway. An easement gives no exclusive dominant right over the servient land unnecessary to the enjoyment of the easement. San Jacinto Sand Co. v. Southwestern Bell Telephone Co., 426 S.W.2d 338 (Tex.Civ.App. 1968, writ ref’d n.r.e.); Wall v. Lower Colorado River Authority, 536 S.W.2d 688 (Tex.Civ.App. 1976, writ ref’d n.r.e.). The point of error is overruled.

Because Viscardi had no right to use the driveway by virtue of the bank’s conveyance and because she had no prescriptive easement, she was not entitled to injunctive relief. Accordingly, the judgment of the district court is reversed and the injunction is dissolved.

PHILLIPS, C. J., not participating.


source: Caselaw Access Project

author: MURRAY, Justice.

license: Public Domain

text:
    Gilbert HOLLADAY et al., Appellants, v. Guadalupe PEREZ De RIOS et al., Appellees.
    No. 15821.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.
    Rehearing Denied March 1, 1978.

      Alfred W. Offer, Roy D. Quillian, III, San Antonio, for appellants.
    Michael Putman, Putman & Putman, San Antonio, for appellees.
   MURRAY, Justice.

This is a venue case arising out of a highway intersectional collision in Frio County, Texas. Appellees, Guadalupe Perez De Rios, surviving widow of Jose Elezar Rios, and her children, and Alta Verde Industries, Inc., sued appellants, Adolfo Es-parza, Gilbert Holladay, and Holladay Trucks, Inc. Appellants filed a plea of privilege to be sued in Dawson County, the county of their residence. After a trial before the court without a jury, the plea was overruled.

Appellees allege that there was a collision between two tractor-trailer trucks, resulting in the death of Jose De Rios and leaving as his survivors a wife and children; that appellant, Esparza, was negligent in the operation of his truck and such negligence was a proximate cause of the collision in question.

In appellees’ controverting affidavit to the plea of privilege they rely upon Subds. 9a, 23, and 29a of Art. 1995, Tex.Rev.Civ.Stat.Ann. (1964).

The substance of appellants’ points of error which have been briefed is that the evidence is insufficient to support the implied finding that appellants’ driver was guilty of negligence, proximately causing the collision in question.

We agree with appellants that, the burden is on the appellees to establish that the collision was proximately caused by the negligence of appellants’ driver. Sanderlin v. Dransfield, 523 S.W.2d 794 (Tex.Civ.App.—Fort Worth 1975, no writ); Reynold & Huff v. White, 378 S.W.2d 923 (Tex.Civ.App.—Tyler 1964, no writ).

It is settled that both the negligence and proximate cause may be inferred by the circumstances. Birmingham v. Gulf Oil Corp., 516 S.W.2d 914 (Tex.1974); Bock v. Fellman Dry Goods Co., 212 S.W. 635 (Tex.Comm.App.1919, holding approved).

The testimony shows that on October 4, 1973, an intersectional collision occurred between Jose De Rios, decedent, who was operating a tractor-trailer in a northeasterly direction on U.S. Highway 57 and appellant, Esparza, who was operating a tractor-trailer in an easterly direction on F.M. 140; that there was a stop sign and two flashing red lights for traffic proceeding on F.M. 140 and a blinking yellow light for traffic on U.S. Highway 57; that the accident occurred approximately at 8:10 a. m. on a clear, dry day, during daylight hours, and there was no obstruction of view; that at the time of the accident there was no other traffic moving on either of said roads; that the point of impact was marked as being near the the center of the lane of F.M. 140; that the appellant saw a truck approaching the intersection and did not see it again until after the collision; that Esparza’s “rig” had a combined length of 51 or 52 feet and weighed approximately 71,000 pounds; and that the Officer Rowan stated that the Rios truck left approximately 60 feet of skidmarks prior to impact with the Esparza truck.

There is conflicting testimony as to where appellants’ trailer was struck. Appellant testified that the vehicle was struck near the back wheels whereas appellees made reference to Exhibits 1, 2, and 6, that the impact was toward the front of the appellants’ trailer near the landing struts.

Tex.Rev.Civ.Stat.Ann., art. 6701d, § 71(a) and (e) (Supp.1976), provide in part as follows:

(a) The driver of a vehicle approaching the intersection of a different street or roadway shall stop, yield and grant the privilege of immediate use of such intersection in obedience to any stop sign, . and after so stopping, may only proceed thereafter when such driver may safely enter the intersection without interference or collision with traffic using such different street or roadway.
(e) A driver obligated to stop and yield the right-of-way in accord with Sections (a), ... of Section 71, who is involved in a collision or interference with other traffic at such intersection is presumed not to have yielded the right-of-way as required by this Act.

In a trial by the court, where there are no findings of fact or conclusions of law filed or requested, we must presume that the court found all facts raised by the pleadings and the evidence to support the judgment. Nunneley v. Weiler, 244 S.W.2d 707 (Tex.Civ.App.— Fort Worth 1951, no writ).

A careful study of the entire statement of facts and in consideration of Tex.Rev.Civ.Stat.Ann., art. 6701d, § 71(a) and (e), brings us to the conclusion that the evidence, viewed in the light most favorable to appellees, sustains the trial court’s judgment in overruling the plea of privilege.

The judgment is affirmed.


text:
    Bruce R. SAATHOFF and wife Dorothy Saathoff, Appellants, v. Gerald B. WILCOX, Appellee.
    No. 15937.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.
    Francis C. Richter, Hondo, for appellants.
    Leonard L. Oliver, San Antonio, for ap-pellees.
   MURRAY, Justice.

Bruce R. Saathoff and wife, Dorothy C. Saathoff, instituted this suit for the termination of the parent-child relationship between Gerald B. Wilcox and his minor son. Dorothy C. Saathoff is the ex-wife of Gerald B. Wilcox and the mother of the minor son. This suit was brought under § 15.02 of the Tex.Family Code Ann. (1975), and Bruce R. Saathoff and wife, Dorothy C. Saathoff, appellants, alleged that Gerald B. Wilcox, appellee, had failed to support his child. [§ 15.02(1)(E)], and that the termination of the parent-child relationship was in the best interest of the child [§ 15.02(2)]. At the conclusion of the trial before the court judgment was entered denying termination of the parent-child relationship. Appellants have perfected their appeal to this Court. We affirm the trial court.

Appellants have testified that from the date of their marriage, November 1974, they have provided all the shelter, clothing, food, care, love, and affection for the child, and the child has enjoyed good health and has a good relationship with the appellants; that appellee had failed to pay child support during a period of one year ending within six months of the date of filing of the petition; that from the time of the divorce until the present time appellee has never written nor called the appellant concerning the well-being of the child, and that appel-lee never requested the right to visit the child until January 31, 1977; that termination of the parent-child relationship is in the best interest of the child.

Appellee testified that he had made arrangements to guarantee such support payments, and that once he discovered that the payments were in arrears, he immediately submitted the same in full, and he had always been ready, able, and willing to pay support; that during such period appellee was earning from $7,000.00 to $8,000.00 per year; that the appellant, Dorothy Saathoff, was a legal secretary who had knowledge of § 15.02 and avoided contact with appellee so that appellee might not discover the matter of the arrearages; that appellee had visited the child at his mother’s home in Hondo, Texas, and not at the home of his ex-wife for the reason that he was still upset over the recent divorce and wanted to avoid any emotional confrontations; however, when visitations at appellee’s mother’s home failed, appellee sought direct visitation which was denied by appellant.

The only basis for termination asserted by appellants is the following part of § 15.02 of the Family Code:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
******
(E) failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or ******
(2) termination is in the best interest of the child.

For a decree of termination to be entered under § 15.02 of the Family Code both of these elements must be established. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976); Holley v. Adams, 544 S.W.2d 367 (Tex.1976).

While it is true that the evidence in this case establishes as a matter of law that appellee failed to support his child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition, the appellants had the burden to prove § 15.02(2) and this issue was found against them by the trial court. Appellants have attacked the finding of the trial court in this issue in the point of error alleging that “[t]he trial court erred when it found that termination of the parent-child relationship between Appellee, Gerald Brill Wilcox, and the child is not in the best interest of the child.”

This Court has the power to find facts by virtue of Rules 451, 453, 455, Tex.R.Civ.P. (1978), and Art. 5, § 6 of the Texas Constitution. By virtue of these rules, this Court has the power to set aside a finding of the court and remand a case for retrial if a consideration of all the evidence in the record shows that the finding of the trial court is so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. We must consider all evidence, that which supports the finding of the trial court and that which militates against it. King v. King, 150 Tex. 662, 244 S.W.2d 660 (1951); Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ.App.—San Antonio 1952, no writ). We have considered all the evidence in this case and have reached the conclusion that the finding of the trial court that termination of the parent-child relationship is not in the best interest of the child is not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. In fact, we are impressed that the evidence heavily preponderates in favor of the finding of the trial court. See Holley v. Adams, supra.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    CITY OF HOUSTON, Appellant, v. Arnold LeBLANC et ux., Appellees.
    No. 5789.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied March 1, 1978.

      Robert M. Collie, Jr., City Atty., James K. Gardner, Sr., Roy F. Martin, III, Asst. City Attys., Houston, for appellant.
    Michael P. Haines, Michael J. Thibo-deaux, Haines, Cowgill, Andell & Fuqua, P. C., Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant City of Houston from $124,864. judgment in favor of plaintiffs Arnold LeBlanc and Mary Le-Blanc, in an automobile collision case.

Plaintiffs LeBlanc and wife sued defendants City of Houston and Houston police officer Ronald G. Hickman, alleging plaintiffs were damaged in a multi-car collision caused by the negligence of Hickman while driving a City of Houston vehicle.

Prior to the trial plaintiffs settled with Officer Hickman, and took a non-suit as to him on the first day of trial May 17, 1976.

Trial was to a jury which found Officer Hickman negligent and that such was a proximate cause of the occurrence. The jury assessed damages as follows:

Issue 3: $100,000. for Arnold LeBlanc’s past and future pain, anguish and loss of earnings.
Issue 4: $4,864. for Arnold LeBlanc’s reasonable and necessary medical and hospital expenses.
Issue 5: $7,500. for Arnold LeBlanc’s future medical and hospital expenses.
Issue 6: $10,000. for Mary LeBlanc’s past and future pain, anguish and loss of earnings.
Issue 7: $1,000. for Mary LeBlanc’s reasonable and necessary medical and hospital expenses.
Issue 8: $300. for Mary LeBlanc’s future medical and hospital expenses.
Issue 9: $1,200. for damages to LeBlanc’s vehicle.

The trial court rendered judgment on such verdict for plaintiffs for $124,864.

Defendant City appeals on 20 points contending the trial court erred:

1) In overruling defendant’s motion for judgment non obstante veredicto grounded upon plaintiffs’ release from liability of defendant’s employee.
2) In denying defendant leave to file its trial amendment alleging release.
3) In rendering judgment in excess of the limits of the Texas Tort Claims Act; and in not allowing a credit on the judgment for amounts paid plaintiffs on behalf of Hickman.

Contention 1 asserts the trial court erred in overruling defendant’s motion for judgment non obstante grounded on plaintiff’s release from liability of Officer Hickman. Plaintiff sued the City and Officer Hickman, driver of the City’s vehicle. Officer Hickman had a liability insurance policy. Prior to trial Officer Hickman’s insurance carrier paid $9,992.54 to plaintiffs (or paid on their medical bills). For such payments plaintiffs executed a release to Hickman. Defendant asserts the release of Hickman operated to release the City.

Whether or not the release of Hickman would release the City, the City did not plead such defense as required by Rule 94 TRCP. Rule 94 requires: “In pleading to a preceding pleading, a party shall set forth affirmatively * * * release * * * and any other matter constituting an avoidance or affirmative defense”.

Having failed to affirmatively plead the defense of “release” the City waived its right to assert such defense. Reid v. Associated Employers Lloyds, Tex.Civ.App. (Fort Worth) Er.Ref., 164 S.W.2d 584; First Nat. Bank in Dallas v. Zimmerman, Tex.S.Ct., 442 S.W.2d 674.

Contention 1 is overruled.

Contention 2 asserts the trial court erred in denying defendant leave to file its trial amendment alleging release.

The release of Officer Hickman by plaintiffs was executed on December 2, 1975. Trial of this case began on May 17,1976, on which date plaintiffs filed motion to non-suit as to Officer Hickman, which motion was granted by the trial court. The trial was completed and the jury returned its verdict on May 20,1976. On June 11, 1976, 22 days after verdict, but before judgment was entered, the City tendered trial amendment pleading the release of Hickman as a defense to plaintiffs’ cause of action against the City. The trial court denied leave to file such trial amendment.

The filing of a trial amendment is within the sound discretion of the trial court, and unless the trial court clearly abuses that discretion, its action will not be overturned. We cannot say that the trial court abused its discretion in this case. Victory v. State, 138 Tex. 285, 158 S.W.2d 760; Irwin v. Whirley, Tex.Civ.App. (Waco) NWH, 538 S.W.2d 150.

Contention 2 is overruled.

Contention 3 asserts the trial court erred in rendering judgment in excess of the limit of the Texas Tort Claims Act; and in not allowing a credit on the judgment for the amounts paid plaintiffs (or paid on plaintiffs’ medical bills) on behalf of Hickman.

The Texas Tort Claims Act sets a limit of recovery of $100,000. per person.

Defendant sets up a schedule reflecting contention 3, as follows:

Arnold LeBlane
Jury Verdict Issue 3 $100,000.
Issue 4 4,864.
Issue 5 7,500.
Issue 9 1,200.
Less excess TTCA limit - 13,564.
$100,000.
Less credits from Hickman settlement - 6,341.85
Reformed Judgment Arnold $ 93,658.15
Mary LeBlane
Jury Verdict Issue 6 $ 10,000.
Issue 7 1,000.
Issue 8 300.
$ 11,300.
Less credits from Hickman settlement 3,650.69
Reformed Judgment Mary $ 7,649.31
Total Reformed Judgment $101,307.46

Plaintiffs in their brief concede Contention 3, and request this court to reform such judgment to conform to this schedule, reforming judgment to the amount of $101,-307.46.

Contention 3 is sustained, and the judgment of the trial court is reformed to delete $23,556.54 therefrom (in conformity with the above schedule), and as reformed affirmed in the amount of $101,307.46.

Costs of appeal are taxed one-half against the City and one-half against plaintiffs.

REFORMED and AFFIRMED.


text:
    Dorothy J. WILSON, et al., Appellants, v. B. B. WORLEY et ux., Appellees.
    No. 5888.
    Court of Civil Appeals of Texas, Waco.
    Jan. 26, 1978.
    Rehearing Denied March 1, 1978.

      Bill H. Vannatta, Clark & Vannatta, Waco, for appellants.
    Stephen N. Smith, Martin, Martin & Showers, Hillsboro, for appellees.
   OPINION

McDONALD, Chief Justice.

Appellants Wilson, et al, appealed from a judgment rendered and entered September 9, 1977, which decreed title and possession of 136.76 acres of land to appellees Worley, et ah, subject to a mineral interest owned by the Sabine Corporation.

Appellees have filed motion to dismiss such appeal on the ground that this court does not have jurisdiction.

Trial of the case was to a jury. The trial court rendered and entered a judgment on August 19, 1977. On August 26, 1977 appellants filed motion for new trial, and on such date also filed motion for correction of judgment, requesting the trial court to correct judgment so as to reflect a mineral interest in the land which was owned by the Sabine Corporation, which was a party to the suit. On September 9, 1977 the trial court rendered and entered a corrected judgment disposing of all issues and parties. This judgment was a final judgment and is the judgment appealed from.

There was no motion for new trial filed within 10 days after September 9, 1977, and no appeal bond filed within 30 days after September 9, 1977, as required by Rule 356 TRCP.

Appellants filed appeal bond on November 4, 1977, 56 days after the September 9, 1977 judgment.

Appellants contend it was not necessary for them to file a motion for new trial following the September 9, 1977 corrected judgment, and that under Rule 306c TRCP, the motion for new trial filed August 26, 1977 directed to the August 19, 1977 judgment, is applicable to the September 9,1977 judgment, as a prematurely filed motion for new trial.

Rule 306c TRCP provides that no motion for new trial shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of “the judgment the motion assails”.

The motion for new trial filed by appellants on August 26, 1977 specifically assailed the August 19, 1977 judgment which was not a final judgment. It was interlocutory as it did not dispose of the mineral interest owned by Sabine Corporation, a party to the suit.

The judgment of September 9, 1977 disposed of all issues and all parties and was a final judgment, and is the judgment appealed from.

Appellants’ motion for new trial filed on August 26 was not directed to the final judgment in this case rendered September 9, and cannot be considered a prematurely filed motion for new trial under Rule 306c TRCP. Dubert v. Adkins (Tex.Civ.App. Corpus Christi) NWH, 475 S.W.2d 383; Flesher Construction Co. v. Hauerwas (Tex.Civ.App. Dallas) NWH, 491 S.W.2d 202; Home Fund, Inc. v. Denton Federal Savings & Loan Assn. (Tex.Civ.App. Ft. Worth) NWH, 485 S.W.2d 845; Bryan v. General Electric Credit Corp. (Tex.Civ.App. Houston 1) NWH, 553 S.W.2d 415. See also: Imperial Ins. Co. v. Ellington (Tex.Civ.App. San Antonio) NWH, 498 S.W.2d 368.

Appellants cite Wilmer-Hutchins Independent School District v. Blackwell (Tex.Civ.App. Dallas) Er.Dismd., 529 S.W.2d 575, and NEI Corporation v. Glenn McMillan Developing Co. (Tex.Civ.App.Houston 14) NWH, 550 S.W.2d 113 as supportive of their position. Wilmer-Hutchins did not pass on the point; and the NEI case applied rule 306c to a nunc pro tunc judgment correcting a misrecital of a name in a previously entered final judgment.

Since Rule 306c is not here applicable, and no motion for new trial was filed within 10 days after the September 9 judgment, and no appeal bond was filed within 30 days after such judgment, this court is without jurisdiction of the appeal.

Appellees’ motion to dismiss appeal is granted.

APPEAL DISMISSED

      . See: Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315; Bellmead State Bank v. Campbell (Tex.Civ.App. Waco) NWH, 386 S.W.2d 205.


author: MOORE, Justice.

text:
    Joanne Lucille MOSOLOWSKI, Appellant, v. Withold MOSOLOWSKI, Appellee.
    No. 1077.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 26, 1978.

      Tommy T. Bastían, Wells, Wells & Bas-tían, Paris, for appellant.
    Ebb B. Mobley, Longview, for appellee.
   MOORE, Justice.

This is an appeal from a divorce decree. Appellant, Joanne Lucille Mosolowski, instituted this suit against her husband, appel-lee Withold Mosolowski, seeking a divorce. After a trial to the court without a jury, the trial court entered judgment granting appellant a divorce, dividing the community property and granting appellant the custody of the children, together with an order for child support. Being dissatisfied with the court’s division of the property and the amount of child support, appellant perfected this appeal.

We affirm.

The record contains findings of fact and conclusions of law, but does not contain a statement of facts.

Appellant seeks a reversal under her first point of error on the ground that the trial court erred in failing to prepare and file additional findings of fact in response to her request therefor. We find no merit in this contention.

The record reveals that in response to appellant’s request, the trial court filed original findings of fact and conclusions of law on May 5, 1977. It was not until May 16,1977, some eleven days later, that appellant filed her motion for additional or amended findings under Rule 298, Tex.R.Civ.P. The request for additional findings was filed with the District Clerk. There is no showing that the request was ever presented to the trial judge.

Rule 298 provides that after the judge files original findings of fact and conclusions of law, either party may, within five days, request of him specified further, additional or amended findings; and the judge shall, within five days after such request, and not later, prepare and file such further, other or amended findings and conclusions as may be proper. The rule specifically states that a request for additional findings must be made to the trial judge. It is not sufficient to make such presentation to the clerk of the court. Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d); Smith v. Vankirk, 314 S.W.2d 377 (Tex.Civ.App.—Waco 1958, writ ref’d n. r. e.). Furthermore, the failure to file the request for additional or amended findings within five days after the filing of the original findings of fact and conclusions of law by the judge is a clear violation of the time requirements of Rule 298. Continental Trailways, Inc. v. McCandless, 450 S.W.2d 707 (Tex.Civ.App.—Austin 1969, no writ).

Moreover, by failing to perfect a bill of exception, appellant did not properly preserve the point for appellate review. Although the transcript contains the belated request for additional findings of fact and conclusions of law, in the absence of a bill of exception or any recital of the trial court either by judgment or order showing that this ex parte request was actually presented to the trial court or called to his attention, there is nothing to show that appellant properly complied with Rule 298. The applicable rule under these circumstances is stated in 4 Tex.Jur.2d, Part 1, App. and Err.—Civil Cases, sec. 491, p. 357, as follows:

“Failure or refusal of a court to file findings of fact in response to a proper request, or to file them within the prescribed time, will not be reviewed without a bill of exceptions, in the absence of a showing in the record that the appellant was misled by the court and thereby prevented from presenting a bill until after the expiration of the time allowed. A reason given for the rule is that the attention of the judge may not have been called to the request, and without a bill the appellate court cannot know that the party making the request did not waive or withdraw it, as he could do.”

See also Zaruba v. Zaruba, supra; Steppe v. O’Day, 315 S.W.2d 599 (Tex.Civ.App.—Waco 1958, writ ref’d n. r. e.). Without a bill of exception or some other recital showing compliance with the rule, this court is not in a position to conclude that the request was not waived or withdrawn. Accordingly, appellant’s first point is overruled.

Under the remaining points, appellant contends that the trial court abused its discretion in dividing the property of the parties, and erred in refusing to award her sufficient child support. A determination of these points would obviously require an evaluation of the testimony adduced at the trial.

In the absence of a statement of facts, the findings of fact made by the trial court are conclusive on the appellate court, and it must be presumed that the evidence was sufficient and that every fact necessary to support the findings and judgment was proved at the trial. Vanity Fair Properties v. Billingsly, 469 S.W.2d 453 (Tex.Civ.App.—San Antonio 1971, writ ref’d n. r. e.); Gelfond v. Levit, 398 S.W.2d 659 (Tex.Civ.App.—San Antonio 1966, no writ); Mulcahy v. Cohen, 377 S.W.2d 100 (Tex.Civ.App.— Houston 1964, writ ref’d n. r. e.). Without the benefit of a statement of facts, this court is in no position to pass on the question of whether the trial court abused its discretion in dividing the property or in setting the amount of child support. The remaining points are accordingly overruled.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    Vollie M. PILAND, Appellant, v. TEXAS BOARD OF ARCHITECTURAL EXAMINERS, Appellee.
    No. 12651.
    Court of Civil Appeals of Texas, Austin.
    Feb. 1, 1978.
    James M. Mabry, Austin, for appellant.
    John L. Hill, Atty. Gen., Bill Campbell, Asst. Atty. Gen., Austin, for appellee.
   O’QUINN, Justice.

The Texas Board of Architectural Examiners revoked the license of Vollie M. Piland to practice architecture in this state, effective December 31, 1975, after a hearing on complaint that Piland appropriated plans of another architect, to which Piland affixed his own seal and name.

Piland appealed from the Board’s order to district court in Travis County, and from judgment affirming action of the Board of Examiners, Piland brings this appeal presenting three points of error. We will affirm the judgment of the trial court.

Piland is licensed to practice architecture in the State of Oklahoma, and was granted license to practice in Texas under reciprocal arrangements between the states. The architectural plans involved in the complaint consist of seven sheets of drawings, constituting a portion of more extensive plans comprising fifty-seven pages, originally prepared by David Ashcroft, a licensed architect doing business as Southwest Design Group. Ashcroft prepared the plans for Valley Community Hospital in Brownsville, and under their contract the hospital became the owner of the plans, with agreement that Ashcroft would be compensated for any future use.

. Some time later Henry Houseman, a security underwriter interested in organizing and financing hospital projects, acquired the complete plans. In his customary operations, Houseman obtained services of an architect and a construction company, and handled all financing of a project. Houseman handled financing for Valley Community Hospital, and was reimbursed only for his expenses.

In acquiring the Valley Community plans originally prepared by Ashcroft, Houseman exchanged his expenses for a period of eighteen months for ownership of the plans for the purpose of using the plans as a preliminary basis for future hospital projects in which he was interested, without regard to whether the plans were finally adopted on the proposed project.

In 1975 Houseman undertook to submit plans to the Texas State Department of Health for five prospective projects. In this connection, Houseman, not licensed as an architect, requested Piland to submit plans for him to the Department of Health, under an arrangement by which Piland would be the architect, Tandy Industries would construct the hospitals, and Houseman would supply the financing.

Piland removed Ashcroft’s seal from the plans, replaced the seal with his own, and submitted the plans as requested by Houseman. Willian Everett, an architect with the State Health Department who had worked with Ashcroft on the Valley Community Hospital project, recognized the plans as the work of Ashcroft. Ashcroft was notified, after which the Board of Examiners was advised, resulting in the complaint heard by the Board.

Under his first point of error Piland contends that the trial court erred in “holding that appellant’s conduct constituted dishonest practices.” Pursuant to statutory authority, the Board of Architectural Examiners adopted Rules and Regulations in which dishonest practices are defined. Art. 249a, sec. 5(b), V.A.C.S. Under Section 8.06(d), Chapter VIII, of the Rules and Regulations, one dishonest practice is defined as “acts which evidence attempts or success in efforts violating rules regarding the use of an architect’s seal; see Chapter 6.” Section 6.05 (under Chapter VI) provides:

“6.05 Prohibited Use
No registrant shall affix the seal, and/or signature and/or registration number to sketches, working drawings, specifications, or other documents developed by others not under the direct and continuing supervision and not subject to the authority of that registrant in critical, professional judgments.”

The Legislature authorized the Board to revoke and cancel the right of any person to practice architecture, after notice and hearing “and upon proof of the violation of the law ... or for dishonest practice on the part of the holder of such registration certificate.” (Emphasis added) Art. 249a, sec. 11.

Piland argues that to show dishonest practice (1) there must have been proof of intent to mislead; that (2) misuse of the seal can be raised only in matters of “critical, professional judgments,” as used in the final clause of Section 6.05; and that (3) revocation is authorized only when the architect places his seal on the work of another person who is not licensed to practice architecture. We find merit in none of these arguments.

Piland’s first argument rests upon that provision of Section 8.06(c) of the Rules, which includes as a dishonest practice “Acts which evidence attempts by an architect, through commission or omission, to mislead or defraud any person or persons.” (Emphasis added) The Board in its order revoking Piland’s license recited a charge under this section as one of several charges in the complaint, and found all charges to be true. Subsection c. stands as an independent ground for revocation, as does Subsection d. which deals with misuse of the seal in violation of Section 6.05, set out above. Proof of intent to mislead or defraud is not required to sustain charges under Subsection d.

The second argument is grounded on a misinterpretation of the Rules. Section 6.05 clearly permits use of an architect’s seal on the work of another person only when that person is “under the direct and continuing supervision” of the registered architect and is “subject to the authority of that registrant in critical, professional judgments.” (Emphasis added) The thrust of Piland’s argument is that use of the registered architect’s seal on the work of another person is permissible in any situation not involving “critical, professional judgments,” such as submission of preliminary drawings to the Department of Public Health by Pi-land in 1975.

The Rule speaks for itself. Ashcroft, a registered architect himself, was not under the direct and continuing supervision of Pi-land and was not subject to Piland’s critical, professional judgments. Piland simply took Ashcroft’s work, appropriated such portions of the whole as suited Piland’s immediate needs as as architect before the Department of Public Health in presenting preliminary drawings for proposed hospitals. In doing so, Piland followed a dishonest practice in that he claimed by seal and signature that the plans were the work of Piland.

By his third argument against the trial court’s finding of dishonest practice Piland insists that prohibition against placing of the licensed architect’s seal upon the work of another person is limited to plans developed by persons not licensed to practice architecture. The logical converse of this position must be that one licensed architect may appropriate the work of another registrant with impunity, even though the act be a dishonest practice. Whereas Section 9 of Article 249a forbids a registered architect from authorizing unlicensed persons to use the architect’s seal, Section 11 of the article deals with the dishonest practice of placement by a registered architect of his seal upon the work of another person.

The Board of Architectural Examiners found, under authority of Article 249a, sec. 11, and of the Rules, Sections 8.06(d) and 6.05, that placement by Piland of his seal upon the work of Ashcroft was a dishonest practice which warranted revoking Piland’s license. Upon appeal as provided under Section 11, the district court of Travis County correctly denied relief sought by appellant and affirmed the order of the Board revoking and cancelling Piland’s license to practice architecture in Texas.

Since disposition of this appeal is reached in resolving the issues under the first point of error contrary to appellant’s contentions, we find it unnecessary to discuss the remaining points. All points of error are overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Chief Justice.

text:
    Maurice DOKE, Petitioner, v. Marie Jackson Parker DOKE, Respondent.
    No. 12684.
    Court of Civil Appeals of Texas, Austin.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.
    Larry W. Bass, Bass & Bass, Inc., Houston, for petitioner.
    Hubert L. Gill, Austin, for respondent.
   PHILLIPS, Chief Justice.

This is an appeal by writ of error challenging the validity of a decree of divorce entered on December 2, 1976. The parties are Maurice Doke, respondent below and petitioner herein, and Marie Jackson Parker Doke, petitioner below and respondent herein.

We reverse the judgment and remand the cause for a new trial.

Marie Doke filed a petition for divorce on July 9, 1975. No citation was served upon Maurice Doke. A decree of divorce was entered on November 19, 1975, pursuant to a written agreement between the parties. On December 9, 1975, Marie Doke filed a motion for new trial, complaining of the visitation rights granted to Maurice Doke. A hearing on the motion was set for December 19, 1975. On this same date, Marie Doke filed an amended motion for a new trial. In this motion, she complained about the visitation rights granted to Maurice Doke and the amount of child support payments. After a contested hearing, a new trial was granted based on this latter motion as to all issues except the divorce itself. An order to this effect was entered on December 19, 1975.

Thereafter, on December 31, 1975, the parties filed an agreement wherein they agreed that Marie Doke should be named temporary managing conservator of the minor children and that Maurice Doke should be named temporary possessory conservator, all subject to the approval of the court. It appears that a hearing was then held on November 12, 1976, wherein the court granted the relief that is recited in the divorce decree entered on December 2,1976, and which is the subject of this appeal. This decree recites that Maurice Doke was not present at the time the hearing was held.

Maurice Doke subsequently requested that a statement of facts be prepared and forwarded to this Court. A court reporter did not attend the proceedings of November 12, 1976, and, consequently, a statement of facts could not be obtained. Maurice Doke also requested that the presiding judge prepare a statement of facts or, in the alternative, that he prepare and file an affidavit stating that he was unable to recall the evidence at the hearing held on November 12,1976. Neither instrument was filed and, as a result, the record before us does not contain a recitation of the facts adduced at the hearing.

The judgment of the court below is attacked by various points of error. We will consider only one point, however, because in our view, it disposes of this appeal.

Under his second point, petitioner contends that the judgment of the trial court should be reversed due to his inability to obtain a statement of facts necessary for proper appellate review. We agree with this contention. The record brought forward does not contain a statement of facts. As previously discussed, a court reporter did not attend the proceeding below and record the evidence. Moreover, the record discloses that Maurice Doke exercised due diligence and that he was unable, due to no fault on his part, to obtain a record of the evidence introduced at the hearing. Inasmuch as a statement of facts is not available to determine the correctness of the judgment entered below and because Maurice Doke’s right to proper appellate review can be preserved in no other way, the judgment is reversed and the cause is remanded for retrial. Rogers v. Rogers, Tex., 561 S.W.2d 172 (Jan. 7, 1978).

The judgment of the trial court is reversed and the cause is remanded for new trial.

Reversed and Remanded.


author: COULSON, Justice.

text:
    M-C INDUSTRIES, INC., et al., Appellants, v. FEDERAL INSURANCE COMPANY et al., Appellees.
    No. 1743.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 1, 1978.
    Rehearing Denied Feb. 22, 1978.

      William A. Harrison, William J. Eggle-ston, Ross, Griggs & Harrison, Houston, for appellants.
    Charles D. Boston, Russell H. McMains, Sim T. Lake, III, Fulbright & Jaworski, Gay C. Brinson, Jr., Vinson & Elkins, Houston, for appellees.
   COULSON, Justice.

Appellants, Procon, Inc. and M-C Industries, Inc., filed suit against appellees, Federal Insurance Company and The Fidelity and Casualty Company of New York, for recovery on two identical insurance contracts which protected all construction equipment owned, leased, or rented by Pro-con. Procon made its claim as a result of the damage done to a 4100W Manitowoc lift crane in an accident that occurred while the crane was being operated by a Procon employee at a Texas City jobsite. The crane had been leased by Procon from M-C Industries, the crane’s owner.

The insurance policy in question protected against “all risks of direct physical loss of or damage to the . property, except as provided elsewhere in [the] policy.” The appellee insurers denied coverage, arguing that under exclusion (c) the policy did not insure “against loss or damage occasioned by the weight of a loan exceeding the registered lifting or supporting capacity of any machine.” At the close of the plaintiffs’ case, the insurers moved for an instructed verdict on the ground that there was no evidence to establish the inapplicability of the pleaded exclusion; the court granted this motion and entered a take-nothing judgment against Procon and M-C Industries, from which action they appeal.

The major controversy in this case has involved the meaning of the language used in the exclusion: “a load exceeding the registered lifting or supporting capacity of any machine.” The appellee insurers insist that this unambiguously refers to lifts in excess of the crane manufacturer’s load chart specifications, an amount which varies with the manner in which the crane is outfitted (length of boom, angle of elevation, etc.), while the appellant insureds argue that it refers to the maximum lift value attainable with the particular crane when properly rigged, an amount fixed for this machine at two hundred tons.

Our examination of the language in exclusion (c) convinces us that it is ambiguous, which is to say, that it is subject to several reasonable interpretations, including the one urged by the appellant insureds. That being the case, the insureds’ interpretation must be adopted since exceptions, exclusions, and limitations are strictly construed against insurers. Courts must adopt the construction of an exclusionary clause urged by the insured, provided that construction is not itself unreasonable, even if the construction urged by the insurer appears to be more reasonable or to more accurately reflect the parties’ intent. If the language of an insurance contract is ambiguous, then the court will adopt such reasonable construction as affords coverage. Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex.Sup.1977).

In any event, even if the insurers’ interpretation of the language in exclusion (c) were to be adopted, the trial court erred in instructing a verdict since there was a question of fact as to the cause of the accident. There was evidence which indicated that the accident was occasioned by lowering the boom too quickly for the operator to maintain control and not occasioned by overloading. For this additional reason the judgment of the trial court must be reversed.

Reversed and remanded for trial consistent with this opinion.


author: CIRE, Justice.

text:
    Norma Jean WADDELL, Appellant, v. Shirley Gao LEE, Appellee.
    No. 1753.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 1, 1978.
    James E. Tatum, Houston, for appellant.
    Charles J. Michael, Houston, for appellee.
   CIRE, Justice.

Norma Jean Waddell appeals from an order denying her application for a temporary injunction to prohibit appellee, Shirley Gao Lee, from operating a competitive business within a twenty mile radius of appellant’s business.

Appellee is a refugee from Red China. She came to the United States in 1975. She spoke English but had problems with reading. On September 28,1976 appellee signed a contract to teach as a ballet instructor for appellant’s dance studio. The term of the contract was for nine months. The contract contained a non-competition clause which stated that upon termination of employment the appellee could not operate a similar business for a period of five years within a twenty mile radius of appellee’s business. It was a part-time employment contract; Mrs. Lee would teach ballet class at appellant’s place of business for approximately four to five hours per week. In January of 1977 a conflict developed between the parties and escalated to such an extent that appellee either quit or was fired. In late May 1977 appellee’s husband opened a dance studio several miles from appellant’s studio and appellee became its artistic director. Evidence in the record indicates that several patrons of the appellant’s studio switched to appellee’s studio. Additionally, advertisements for appellee’s studio appeared in the local Pasadena paper, the Pasadena Citizen.

On June 28,1977 appellant filed her original petition for temporary injunction, which was denied.

Appellant, in her brief, asserts a single point of error, claiming that the trial court abused its discretion by refusing to grant the temporary injunction. We affirm.

In an appeal from a judgment granting or denying a temporary injunction, the Appellate Court is required to review the evidence, and to draw legitimate inferences from the facts in evidence, in the light most favorable to the trial court’s judgment. If such a review of the evidence will support any findings of fact that would, in turn, support the trial court’s judgment, those findings are implied in the judgment, itself.

Erickson v. Rocco, 433 S.W.2d 746, 750 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). Whether appellee understood the terms of the contract and agreed to the non-competition clause was in dispute. The trial court could reasonably have concluded that she did not understand and agree to those terms. Also, the terms of such a covenant must be reasonably necessary to protect the business and good will of the employer. Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950 (1960). The appellant must prove by satisfactory evidence both the necessity and reasonableness of the covenant. Custom Drapery Co., Inc. v. Hardwick, 531 S.W.2d 160 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ); see Denny v. Roth, 296 S.W.2d 944 (Tex.Civ.App.—Galveston 1956, writ ref’d). The trial court could properly have concluded that the appellant failed to prove one or more elements sufficient to invoke the court’s equitable remedy of temporary injunction.

We have examined the record and conclude that the trial court did not abuse its discretion by denying Ms. Waddell’s application for temporary injunction.

Affirmed.


author: McKAY, Justice.

text:
    T. R. WILLOUGHBY, Appellant, v. UPSHUR RURAL ELECTRIC COOPERATIVE CORPORATION, a corporation, Appellee.
    No. 1071.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 2, 1978.
    Rehearing Denied March 3, 1978.

      R. L. Whitehead, Jr., Whitehead & Beck-worth, Longview, Mart J. L. Lapin, Kilgore, for appellant.
    Hollie G. McClain, Gilmer, Woodrow M. Roark, Tyler, for appellee.
   McKAY, Justice.

This is a condemnation suit. Appellee, Upshur Rural Electric Cooperative, brought suit to condemn a portion of appellant T. R. Willoughby’s tract of land located in Smith County. The case was tried to a jury. However, the court granted appel-lee’s motion for judgment non obstante ve-redicto, awarded appellee its requested easement, and awarded appellant $633.75 for the permanent easement and $2,641.50 for the damage to the remaining portion of his tract.

Appellee filed this condemnation proceeding on April 29,1976, to obtain an easement for a power line on appellant’s land located in Smith County. The hearing before the appointed commissioners had been held and the award filed on April 8, 1976. Mart Lapin and David Kirk, attorneys, represented appellant at this preliminary stage of the proceedings. Appellant also employed the same counsel to represent him at a temporary injunction hearing which was preliminary to the matter now before us. When the case was called for announcements and trial on October 25, 1976, appellant moved to continue the case on the grounds that his attorney, R. L. Whitehead, Jr., had a prior setting in a felony criminal case in Rusk County, Texas. The court overruled this motion. On October 26, 1976, appellant offered, in open court, a supplemental motion for continuance. Present at trial were attorneys Mart Lapin, David Kirk and R. L. Whitehead, Sr. The court overruled the supplemental motion and proceeded with the trial. Appellant was represented by the three previously mentioned attorneys. His attorney of record for this appeal is R. L. Whitehead, Jr.

The case was submitted to the jury which failed to find that appellee had made a prior bona fide attempt to agree with appellant upon the value of the land sought to be condemned before this suit was filed, that the damage to the easement was $633.75 and that the damage to the remainder of the tract was $2,641.50. The court granted appellee’s motion that the answer to special issue one be disregarded and also granted its motion for judgment non ob-stante veredicto. At the same time, the court found that any further effort on the part of appellee condemnor to agree with the appellant condemnee would have been futile. Ample evidence exists in the record to support the court’s finding. The court then entered judgment that appellee was granted its easement and that appellant was awarded damages as found by the jury.

We affirm the judgment of the trial court.

Appellant contends in his first point of error that the court erred in failing to dismiss the case because the jury found that no bona fide attempt to agree on the value of the land sought to be condemned had been made by appellee. We consider this point of error to be immaterial in light of the court’s finding that any further effort to agree on the price would have been futile. Appellant does not complain of the court’s finding.

It is well settled law that in condemnation cases where an attempt to agree upon value of the condemned land would be futile that no attempt to agree need be made. Article 3264, V.A.T.S.; Houston North Shore Ry. Co. v. Tyrrell, 128 Tex. 248, 98 S.W.2d 786, 108 A.L.R. 1508 (1936); Mid-America Pipeline Company v. Hadwiger, 471 S.W.2d 157, 159 (Tex.Civ.App.—Amarillo 1971, no writ); Aronoff v. City of Dallas, 316 S.W.2d 302, 306 (Tex.Civ.App.—Texarkana 1958, writ ref’d n. r. e.). As the court found that any further attempt to agree on a price would have been futile, no attempt to agree need be made. Therefore, the trial court’s action in disregarding the jury’s answer to special issue one, if error, was harmless error. Tex.R.Civ.P. 434. Accordingly, appellant’s first point of error is overruled.

In his second point, appellant contends that the trial court abused its discretion in refusing to grant his motion for continuance because the attorney employed by him as trial counsel could not be present due to prior criminal settings. It is within the discretion of the court to grant a continuance due to the absence of counsel. Tex.R.Civ.P. 253; Browne v. Jefferson County, 507 S.W.2d 293 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.). Appellant claims that R. L. Whitehead, Jr., was his attorney. However, David Kirk of the firm of Whitehead-Beckworth signed appellant’s answer filed in the case. Of those attorneys available at the trial, both David Kirk and Mart Lapin had been associated with the proceedings from their inception. R. L. Whitehead, Sr., a very experienced trial attorney, was a senior partner in the firm of Whitehead-Beckworth. In fact, even a superficial reading of the statement of facts shows Mr. Whitehead, Sr., was very familiar with the facts of the case and ably represented appellant at the trial of the case. In failing to grant appellant’s motion for continuance, the trial court did not abuse its discretion. See Echols v. Brewer, 524 S.W.2d 731, 734 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


text:
    Rupert BELL, Appellant, v. Herbert Harold HINKLE, Appellee.
    No. 1761.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Feb. 8, 1978.
    Rehearing Denied Feb. 28, 1978.

      Sam J. Lee, Angleton, Eugene Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellant.
    Richard L. McElya, Angleton, Joyce Cox, Cox, Pakenham & Roady, Houston, for ap-pellee.
   CIRE, Justice.

Rupert Bell appeals from an order of the district court dismissing his suit on a plea to the jurisdiction.

Appellant filed his original petition pleading a trespass to try title action against H. H. Hinkle. He claimed that on or about March 1, 1976 he was lawfully seized and possessed of an undivided one-half interest in lands and premises described in an exhibit attached to the petition and on that date the defendant unlawfully entered upon said premises and ejected him therefrom. Appellant later amended his petition to plead not only for recovery of title to and possession of an undivided one-half interest in the real property, but also partition of the real and personal property, an accounting, and, as an alternative, a right to the property as an heir at law of James Thomas Hinkle, whom he alleged had died intestate with no administration having been opened on the estate and the time for opening having expired.

Appellee filed a “Plea to the Jurisdiction and Motion to Dismiss” in which he stated that all the properties in controversy constituted the total assets of the estate of James Thomas Hinkle; that he was the natural son and sole heir of James Thomas Hinkle and that appellant was claiming and alleging himself to be a son and rightful heir-at-law of James Thomas Hinkle; and that appellant’s suit was “in fact and in law, an action to determine heirship” over which the district court had no jurisdiction. The trial court held that it was without jurisdiction and entered the order of dismissal.

Bell appeals from this dismissal, asserting a single point of error, claiming that the district court erred in dismissing the cause since it did have jurisdiction to try and to determine this suit.

Appellee contends that appellant’s case is based solely on his claim that he is a natural son and heir of James Thomas Hin-kle; that this is a dispute as to heirship status between competing claimants and that in counties such as Brazoria County by virtue of the Probate Code, Section 48, the statutory county court at law has exclusive jurisdiction. Suits to determine heirship are under the exclusive jurisdiction of the probate court. Trevino v. Lerma, 486 S.W.2d 199 (Tex.Civ.App.—Beaumont 1972, no writ); Tex.Prob.Code Ann. § 48 (Supp.1978). Trespass to try title actions, however, even by one claiming as an heir of an intestate when no administration is involved, are not traditional probate matters. Prior to the 1973 amendment to Article V, Section 8 of the Texas Constitution the district courts clearly had original jurisdiction over such cases. See Blaylock v. Riser, 163 Tex. 235, 354 S.W.2d 134 (1962); Hein v. DeBusk, 277 S.W. 1053 (Tex.Comm’n App.1925, opinion adopted); Trevino v. Lerma, 486 S.W.2d 199 (Tex.Civ.App.—Beaumont 1972, no writ); Jones v. Jimmerson, 302 S.W.2d 161 (Tex.Civ.App.—Texarkana 1957, writ ref’d n. r. e.); see also Luke v. Ormond, 517 S.W.2d 647 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); Wells v. Gray, 241 S.W.2d 183 (Tex.Civ.App.—San Antonio 1951, writ ref’d). The amended Article V Section 8 provided for original jurisdiction of the district court of suits for trial of title to land and also provided that it would concurrently with the county court have the general jurisdiction of a probate court, and that:

The legislature, however, shall have the power, by local or general law, Section 16 of Article V of this Constitution notwithstanding, to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters, and in case of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change.

Tex.Const. art. V § 8 (Supp.1978). The Legislature, in 1973 and 1975, modified Texas court jurisdiction in probate matters:

(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardi-anships, and mental illness matters shall be filed and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any of such courts.
⅜! ⅜ ⅜ ⅜ * ⅝
(d) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate, including but not limited to, all claims by or against an estate, all actions for trial of title to land incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills.

Tex.Prob.Code Ann. § 5(c)-(d) (Supp.1978). Section 5 of the Probate Code increased the powers of the probate court so that it could more effectively settle decedents’ estates in one proceeding. Sumaruk v. Todd, 560 S.W.2d 141 (Tex.Civ.App.—Tyler 1977, no writ history); see Schwartzel & Wilshusen, Texas Probate Jurisdiction: New Patches for the Texas Probate Code, 54 Tex.L.Rev. 372, 382-83 (1976). But this section does not affect the district court’s jurisdiction where there is no administration pending and none is necessary. See M. Woodward & E. Smith, Texas Practice, Probate and Decedents’ Estates, Ch. 1, § 10 at 16, and Ch. 2, § 23 at 20 (Supp.1975). Matters incident to an estate which give the statutory probate courts exclusive jurisdiction apply only to those matters in which the controlling issues are the settlement, partition or distribution of an estate. Sumaruk v. Todd, supra; Schwartzel & Wilshusen, supra at 383; see Cowgill v. White, 543 S.W.2d 437 (Tex.Civ.App.—Corpus Christi 1976, no writ); Elliott v. Elliott, 208 S.W.2d 709 (Tex.Civ.App.—Fort Worth 1948, writ ref’d); Zamora v. Gonzalez, 128 S.W.2d 166 (Tex.Civ.App.—San Antonio 1939, writ ref’d). Thus the district court’s jurisdiction cannot be exercised so as to defeat the jurisdiction of the county court “to probate wills and grant letters testamentary to executors and to administer estates in accordance with the terms of a legal and valid will.” Buchner v. Wait, 137 S.W. 383, 388 (Tex.Civ.App.—Galveston 1911, writ ref’d). Here the time for administration had long passed and none was pending.

The sole remaining question for us to decide is whether this is a trespass to try title suit or a suit to declare heirship.

It is a fundamental rule that in determining the jurisdiction of the trial court, the allegations of the petition made in good faith are determinative of the cause of action.

Brannon v. Pacific Employers Ins. Co., 148 Tex. 289, 224 S.W.2d 466, 469 (1949) (see cases cited therein). Appellant’s main pleading is clearly a trespass to try title action and there is no evidence that such allegations were not made in good faith. We therefore conclude that the trial court did have jurisdiction and erred in dismissing the case.

Reversed and remanded.


author: DUNAGAN, Chief Justice.

text:
    FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Horace MUSICK, Appellee.
    No. 1102.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 9, 1978
    Rehearing Denied March 3, 1978.

      Frank G. Jones, Fulbright & Jaworski, Sim T. Lake, Houston, Gus Meriwether, Sallas, Meriwether & Renfro, Crockett, for appellant.
    Richard W. Mithoff, Jamail & Kolius, Houston, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a workmen’s compensation case in which judgment was rendered for the appellee, Horace Musick, against the appellant, Fidelity & Casualty Company of New York. The jury found the appellee to be totally and permanently disabled. This finding resulted in the ap-pellee being awarded $24,200.55 in lump-sum disability benefits and $18,066.50 in accrued medical expenses.

The extent and duration of appellee’s disability is not disputed by the appellant. The appellant raises five points of error, all of which concern whether the appellee was shown to be acting within the course and scope of his employment.

The appellee was employed as a truck driver for Permanent Concrete, Inc. The job site was near Greenville, Texas, and the appellee was hired to haul concrete river-weights to the job site. A crew of men was assigned by Permanent Concrete to this job site. The foreman and highest raking representative of Permanent Concrete on the site was Floyd Johnson.

The appellee’s injury took place during a barbeque that was held on the appellee’s land near Grapeland, Texas. The record reflects that Floyd Johnson suggested the barbeque and asked the appellee for permission to have the barbeque on his land. The appellee agreed to this and the party was held on a Saturday evening. Most of the employees were returning to Houston, and Grapeland was a convenient stop on the way from Greenville to Houston. Most of the employees working for Permanent Concrete, Inc., at the job site near Greenville attended this party. The appellee asserts that the foreman decided to have this barbeque on Saturday to encourage the men on the job site in Greenville to finish the job quickly. Whether the party itself was an activity within the course and scope of employment will be discussed later.

There was a need to dig a pit at the party site to aid in the preparation of the barbeque. The appellee and several other employees of Permanent Concrete, Inc., dug this pit on the afternoon of the party. The testimony showed that some company equipment was used in digging the pit. After completing the pit, the appellee and several other employees of Permanent Concrete, Inc., decided to go to a lake that was located on another piece of property near and adjacent to the appellee’s property to “clean up.” The testimony shows that the appellee drove his personal truck to the lake. No testimony is given in the record about the distance to this lake.

While at this lake, the appellee was injured while diving into the lake- off of a diving board. The testimony is not clear about how many times the appellee dove off the board before he was injured.

The appellee argues that “cleaning up,” swimming and diving into this lake are activities that could reasonably be expected to occur at such a gathering, and thus are activities that are within the orbit of the social or recreational activity in question.

The appellee relies upon Clevenger v. Liberty Mutual Insurance Company, 396 S.W.2d 174 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.), a case in which it was held that a fact issue existed concerning whether the employee was acting within the course of his employment. The appellee points our attention to the fact that no representative of the employer in Clevenger actually directed Mr. Clevenger to run after the baseball when he was injured. This argument overlooks the fact that Cleven-ger’s boss took him by the arm and told him he wanted him in the ballgame. A bulletin was published by the company announcing that a company picnic would be held at Sandy Lake Lodge and that a softball game would be played. Clevenger testified that when he got inside the picnic grounds he found that the company had a new automobile on display just inside the gate to the picnic grounds and under a little shed. “After looking at the new automobile he went to the ball park where people were playing softball.” It is not clear whether this ball park was within the gate to the picnic grounds or not, but a reading of the case would seem to indicate that the ball park was within the gate to the picnic grounds. Certainly the ball park was within the confines of Sandy Lake Lodge where the bulletin published by the company contemplated that the activities would be held. We feel all those facts distinguish our case from the Clevenger case. In our case, there is no evidence that driving in a pickup to a neighbor’s land and then diving into a lake was within the orbit of the social events contemplated to take place that day.

We realize that the normal deviation cases dealing with course of employment do not precisely apply here. See Ranger Insurance Company v. Valerio, 553 S.W.2d 682, 685 (Tex.Civ.App.—El Paso 1977, no writ); Roberts v. Texas Employer’s Insurance Association, 461 S.W.2d 429 (Tex.Civ.App.—Waco 1970, writ ref’d). This was a social outing and an employee should not be held to have left the service of his employer while participating at a social event that is in the course of his employment. However, when an employee leaves this social event and goes upon another site and engages in a dangerous activity such as was the case here, we feel that the employee has deviated from the social event and is no longer acting in the course of his employment.

We have examined the evidence presented in this case about course of employment by viewing the evidence in its most favorable light in support of the fact finding, considering only the evidence and the inferences which support the finding, and rejecting the evidence and the inferences which are contrary to the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914).

In our opinion no evidence has been produced by the appellee to show that the injury suffered by the appellee while diving into the neighbor’s lake was suffered while in the course of his employment. The testimony clearly shows that no representative of Permanent Concrete, Inc., directed the appellee to go onto his neighbor’s land. The testimony reflects that the barbeque was to be held upon the appellee’s land. The lake was of sufficient distance from the appellee’s land that the appellee drove his own pickup truck to get to the lake. The fact that the injury was suffered away from the site of the party is, in our opinion, determinative in this case. Viewing the record we are presented with, we hold that as a matter of law the act of diving into the neighbor’s pond was not an activity within the orbit of the social or recreational activity in question. We sustain appellant’s points of error Nos. 1, 2 and 3 in that there is no evidence to support the jury’s finding that the appellee was acting in the course of his employment.

It appears from viewing the entire record that there is a serious question whether the barbeque itself was an event within the course of the appellee’s employment. Our previous holding that Mr. Musick’s actions took him outside the course of employment as a matter of law renders any discussion of whether the actual barbeque was within the course of employment unnecessary.

We have not discussed the appellant’s points of error relating to the insufficiency of the evidence to support the jury’s finding dealing with course of employment, but if these points should be reached, we would hold that based upon a review of the entire record that the evidence is insufficient to support such finding.

The judgment of the trial court is reversed and judgment is rendered for the appellant.


author: PALMORE, Chief Justice.

text:
    STANDARD OIL COMPANY et al., Appellants, v. BOONE COUNTY BOARD OF SUPERVISORS et al., Appellees.
    Supreme Court of Kentucky.
    Feb. 21, 1978.
    Carl Arthur Henlein, John W. Bilby, Middleton, Reutlinger & Baird, Louisville, for appellants.
    William P. Sturm, Atty., Legal Staff, Dept, of Revenue, Frankfort, for appellees.
   PALMORE, Chief Justice.

Each of the four appellants has a leasehold interest in real estate owned by the Kenton County Airport Board, a governmental agency. The property is located within the Greater Cincinnati Airport in Boone County, Kentucky. In 1972 the property valuation administrator (PVA) for Boone County assessed these four leasehold estates for real estate ad valorem tax purposes. In due course the Kentucky Board of Tax Appeals affirmed the assessments, and its action was affirmed by the Boone Circuit Court. This appeal followed.

The appellants contend first that their leasehold interests are exempt from taxation and secondly that if they are not exempt the taxes are being assessed and levied in such a discriminatory fashion as to violate Sec. 171 of the Kentucky Constitution, which provides that taxes shall be “uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax,” etc.

It is conceded that under the principles stated in Kentucky Department of Revenue v. Hobart Manufacturing Company, Ky., 549 S.W.2d 297 (1977), a privately-owned leasehold interest in real estate owned by a tax-exempt governmental unit is subject to real estate ad valorem taxation if the leasehold has a fair market value. That the leasehold interests involved in this case do have such value also is conceded, and the value of each has been stipulated.

KRS 183.138 provides that all property “acquired for the establishment and maintenance of [an] airport shall be exempt from taxation and assessment to the same extent as other property used for public purposes.” According to the appellants and their proof the leased facilities and the uses to which they are put are necessary to the establishment and maintenance of a modern airport. It does not follow, however, that the leasehold interests are tax-exempt, because, in the terminology of the Hobart opinion (549 S.W.2d 297, 299-300), out of the total bundle of rights that represent the ownership of real estate those rights encompassed within the leasehold estates are not owned by the airport, but by the lessees, and if the statute were construed as an effort to exempt those rights it would contravene Sec. 174 of the Kentucky Constitution, which provides that all property shall be taxed in proportion to its value “unless exempted by this Constitution.” (Emphasis added.) No agency of government can validly exempt from taxation any property interest except by express constitutional authority.

A similar argument with respect to KRS 103.285, a comparable statute relating to property acquired by a city for the purpose of leasing it to an industrial concern, was rejected in Hobart Manufacturing Company v. Kentucky Board of Tax Appeals, Ky., 515 S.W.2d 232, 233 (1974).

We are brought, then, to the issue of unconstitutional discrimination. An attempt to tax the leasehold in Kentucky Tax Commission v. Jefferson Motel, Inc., Ky., 387 S.W.2d 293 (1965), was held invalid because the tax assessor admitted that except for that particular one he had never assessed leaseholds as such. There is no such proof in this case, nor any showing that other nonassessed leaseholds (a) were similar and (b) had value in terms of the criterion set forth in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, 850 (1963), for the evaluation of leaseholds.

There was, however, uncontroverted evidence that the Boone County PVA did not assess for taxation the leasehold interests held under industrial revenue bond issues by the various tenants of property within the Florence Industrial Park, and the Director of the Property and Inheritance Tax Division of the state revenue department testified that as a general policy this type of leasehold interest was not being assessed. Why they were not being assessed he was not asked and did not venture to say. Nevertheless, a failure to enforce the law against one person or group does not necessarily result in a holiday for everyone else.

“Probably no law contrived by man for his own governance ever has been or will be enforced uniformly and without exception. But the Constitution does not demand perfection. It is only the obvious and flagrant case that warrants relief . .” City of Ashland v. Heck’s, Inc., Ky., 407 S.W.2d 421, 424 (1966). Rather than Sec. 171 of our Constitution, the Equal Protection Clause of the 14th Amendment and Sec. 2 of the Kentucky Constitution are the source of relief from unreasonable discrimination, and it is our opinion that in order to invoke those fundamental protections against the unfair administration of a law that is not itself unconstitutional the unequal treatment must amount to a conscious violation of the principle of uniformity. Cf. Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350, 353, 38 S.Ct. 495, 62 L.Ed. 1154 (1918); People v. Utica Daw’s Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128, 4 A.L.R.3d 393 (1962). In City of Ashland v. Heck’s, Inc., Ky., 407 S.W.2d 421 (1966), for example, in enforcing the Sunday Closing Law against one establishment the municipal authorities were well aware that the same law applied to the large number of other business establishments against which it was not being enforced. In this instance, however, there is no evidentiary basis for believing that the PVA or the state revenue department actually realized that leaseholds held under industrial revenue bond issues were legally subject to taxation. In fact, it was not until 1977, when the second Hobart opinion came down (549 S.W.2d 297), that the point was so categorically met and decided that even an Arkansas mule must notice and comprehend it. Cf. White v. City of Hickman, Ky., 415 S.W.2d 379, 381 (1967).

When one person is being taxed and another is not, the sensible and constructive solution is to right the wrong by filling the omission rather than by adding another wrong. There are ample means for enforcing performance by the taxing authorities. Cf. Russman v. Luckett, Ky., 391 S.W.2d 694 (1965).

The judgment is affirmed.

All concur.


author: HAYES, Judge.

text:
    Dennis TURNER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 3, 1978.

      Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellee.
    Before HAYES, VANCE and WINTER-SHEIMER, JJ.
   HAYES, Judge.

Appellant was convicted of unlawful possession of alcoholic beverages for the purpose of sale in a dry territory (second offense) in violation of KRS 242.230. Appellant was sentenced to serve sixty (60) days in the county jail and was ordered to pay a fine of Two Hundred Dollars ($200.00). Appellant’s trial counsel offered several objections at trial, but only two issues are raised on appeal. They are: (1) whether proof that Jackson County, Kentucky, is located in a local option dry territory was sufficiently presented; and, (2) whether the trial court properly ruled on the defendant’s motion for a directed verdict where there was no introduction into evidence of either the alleged whiskey or of proof that a chemical analysis had been performed to show that the liquid was in fact an alcoholic beverage within the meaning of KRS 242.-230.

A review of the record in light of existing authority supports the appellee’s position that the proof that Jackson County is a local option territory was sufficient. At several points in the transcript of evidence it was made apparent that the alleged transaction had occurred in Jackson County. Then, in the judgment, it was recited by the judge that appellant was guilty of “selling alcholic [sic] beverages in dry local option territory — second offense.” Thus, it was evident the transaction had occurred in Jackson County and the judge recited in the judgment that the verdict of the jury was that appellant had sold alcoholic beverages in dry local option territory.

Until 1968 this method of proving that a particular county was a local option territory was unacceptable. However, in Rogers v. Commonwealth, Ky., 424 S.W.2d 130, 132-33 (1968) the Court of Appeals stated its new position on this issue as follows:

As recently as Patterson v. Commonwealth, Ky., 411 S.W.2d 940, we held that the failure of the prosecution to show that the offense charged had occurred in dry territory was fatal. Upon re-examination of that question, we are persuaded that the rule followed in Patterson, and many cases prior to it, is unrealistically strict and should no longer be followed [citing cases].
We think it stultifies the dignity of the Court to require proof of such a generally known public matter .
Henceforth, absent some special issue as to the existence of local option, the trial court will take judicial notice of the county’s status in this respect.

This was reaffirmed in Baker v. Commonwealth, Ky., 465 S.W.2d 305 (1971) and in Roberts v. Commonwealth, Ky., 467 S.W.2d 121 (1971). The opinion in Roberts supports the appellee’s position on this issue in the instant case by saying “in addition, the recitation in the judgment is sufficient recognition that judicial notice was taken that Leslie County was local dry option territory.” Id. at 127.

It appears, therefore, that the recitation in the judgment that appellant was guilty of selling alcohol in a local dry option territory was sufficient proof of this element of the crime under current case law.

We believe the appellant should prevail on the second issue he has raised on this appeal. KRS 500.070 requires that the Commonwealth prove every element of a crime beyond a reasonable doubt. KRS 242.230 has as an element the sale of alcoholic beverages. The term “alcoholic beverage” is defined in KRS 242.010 as follows:

(1) “Alcoholic beverage” means alcoholic brandy, whiskey, rum, gin, beer, ale, porter, wine and all other spirituous, vinous, malt or fermented liquors, liquids and compounds, whether medicated, proprietary, patented or not, and by whatever name called, containing more than one percent (1%) of alcohol by volume, which are fit for use for beverage purposes.

The statute then lists a number of things which are not included in the definition of “alcoholic beverages”.

The only evidence in this case that the liquid which was sold, if any, was alcohol was the testimony of the trooper who participated in the purchase. He stated that the liquid was “Galaxy” whiskey and that it was at his home at the time of trial. No chemical analysis of the liquid was made to determine if in fact it was an alcoholic beverage. Nor was any testimony introduced that consuming that particular liquid in sufficient quantity would cause intoxication. We are unable to find any case directly on point, and the parties cite no cases, but it appears that the Commonwealth did not prove, beyond a reasonable doubt, that the liquid was one prohibited under KRS Chapter 242. Of course, as appellee points out, this was not appellant’s line of defense. He denied that any transaction took place at all, and offered no objection to the Court when the witness referred to the liquid as whiskey. He did move for a directed verdict, however, on general grounds of insufficiency of the evidence. This effectively placed before the trial court the issue that the appellant raises on this appeal. In its brief, the appellee cites Shanks v. Commonwealth, Ky., 463 S.W.2d 312 (1971) as supporting its position that appellant “[offered] for sale that which he knew to be [whiskey]”, and that the trooper believed it to be whiskey. The Shanks case does not support that position. The statute involved in Shanks was KRS 218.010(10) which defined “sale” to include “offer thereof”. The Court therein held that “under the act if one offers for sale what he reasonably believes to be a narcotic drug and it later turns out in fact not to be a narcotic, this is sufficient to support a conviction”. In the instant ease, the statute involved addresses itself to alcohol rather than narcotics and does not include an “offer of sale” in the definition of sale or sell. KRS 241.010. The most similar term used is “solicit”. It is arguable that the evidence did not show any solicitation of a sale by appellant. Also, Shanks requires knowledge or belief by the seller that he was selling narcotics. The appellee seems to imply that the trooper’s belief that what was exchanged was alcohol was sufficient. That is not what Shanks requires. Under Shanks the buyer’s belief would be irrelevant.

It would have been a simple matter for the Commonwealth to have either produced the alleged “whiskey” or a chemical analysis of samé at the trial. Failure to do either we believe to be in violation of the Commonwealth’s duty to prove every element of a crime beyond a reasonable doubt.

The judgment of the trial court is reversed with directions to grant the appellant Turner a new trial. If the evidence should be the same on retrial, the court should direct a verdict for the defendant Turner.

All concur.


author: LESTER, Judge.

text:
    CITY OF MONTICELLO, Kentucky, Carl Shearer, Mayor, Dave Carrender, Councilman, Bill Upchurch, Councilman, Charles Upchurch, Councilman, Dr. C. L. McHargue, Councilman, Sam Whittenburg, Councilman, and Kenneth Catron, Councilman, Appellants, v. WAYNE COUNTY FISCAL COURT, Ira Bell, County Judge, Horice Cooper Denney, Katherine Lair, Delbert Branscum, Frank East, James Higginbotham, Henry Paul Richardson and Osby Neal, Appellees.
    Court of Appeals of Kentucky.
    Feb. 10, 1978.
    E. G. Bertram, Jr., Monticello, for appellants.
    Thomas E. Carroll, Wayne County Atty., Monticello, for appellees.
    Before HOGGE, LESTER and WHITE,' JJ.
   LESTER, Judge.

In April of 1976, the city council of Monticello adopted a resolution to move the monument of the Doughboy which honors the veterans of World War I to another location. The original plaintiffs brought a class action on behalf of the American Legion Post 134 and obtained a temporary restraining order against the city. By amended complaint, they also made the Wayne County Fiscal Court a party defendant. The fiscal court cross claimed alleging title to the property and the right to control the area. The Wayne Circuit Court dismissed the class action, but permanently enjoined the city from moving the monument on the grounds urged by the fiscal court.

Monticello appeals contending that it, as a fourth class city, has the authority pursuant to KRS 94.360 to move the Doughboy monument to a place where it will not impede the flow of traffic.

The parties stipulated the essential facts. In February of 1802, the Justices of the Peace of Wayne County received a deed for a 13 acre tract of land which contained the original boundaries of Monticello. In 1803, the county built its first court house and a court house remained there for 25 or 30 years. In 1922, the fiscal court approved the erection of the Doughboy monument on the site of the first court house. Completion of the monument occurred in 1923. Since that time, widening of the streets has reduced in size the base of the monument. The city has provided most of the maintenance for more than 15 years prior to the lawsuit. The monument sits in the center of the intersection of Main Street and Columbia Avenue, two frequently traveled streets in the city. The Wayne Fiscal Court has not conveyed by deed title to the property to the city of Monticello.

KRS 94.360(1) gives Monticello “exclusive control over the public ways, landings, wharves and public grounds of the city.” In relation to these, Monticello may “establish, open, alter, widen, extend, close, grade, pave, repave, clean, sprinkle and repair” as well as “prevent and remove encroachments thereon or obstructions thereto.” In addition, subsection (3) of the statute provides,

(w)hen any parcel of ground has been laid off as a public way, and opened to the unrestricted use of the general public for five consecutive years, it shall be conclusively presumed to have been dedicated to the city as a public way, subject to acceptance by the city.

In order for Monticello to have the power under the statute to relocate the monument, the monument would have to be situated on a public ground or public way. Neither circumstance exists. We agree with the court below that Pulaski County v. City of Somerset, Ky., 364 S.W.2d 334 (1963) controls here. In that case, the Court held that Somerset could not remove a park in the center of the Public Square for traffic purposes. The Court found as the determinative factor the dedication of the park for county uses. Significantly, the park stood on the site of the original court house. With this in mind, the Court wrote,

(c)ertainly the county had the right to build its original courthouse in the center of the square, and the right later to build a new courthouse and other county buildings on one side of the square. It may be true that the county lost its rights in such part of the square as by implied dedication became public streets, see Graves County ex. rel., Robbins v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369, but the evidence here does not establish any implied dedication of the center of the square for street purposes. Pulaski County, supra, at 335-336.

The appellant does not successfully distinguish Pulaski County, supra. The fact that in that case, the original deed of the tract of land which became Somerset stated “for the County’s use” has no bearing on the issue before us. Somerset, like Monticello, has exclusive control over public ways and public grounds but not over property which belongs solely to the county.

Graves County ex rel. v. City of Mayfield, 305 Ky. 374, 204 S.W.2d 369 (1947) cited by appellant does not serve its cause, for in that case, the Court held that a city had the right to establish parking meter zones in an area originally conveyed to the county for use as a public square, but which had become a public way due to use for more than 38 years as a public passway. In the case at bar, the Doughboy has endured relatively intact since its positioning in 1923. Even though the city has authority over the streets around the monument, it does not have the right to move the Dough-boy which persists as a county structure.

We affirm.

All concur.