text:
    BROWNING MANUFACTURING DIVISION et al., Appellants, v. Frank E. PAULUS et al., Appellees.
    Supreme Court of Kentucky.
    July 2, 1976.
    J. Kirk Clarke, Maysville, Robert G. Hunt, King, Deep & Branaman, Henderson, for appellants.
    William C. Jacobs, Lexington, for appel-lee Frank E. Paulus.
   STERNBERG, Justice.

This is a workmen’s compensation case. The Board dismissed the application of Frank E. Paulus for adjustment of claim. On appeal to the Mason Circuit Court the judge remanded the cause to the Board for further proceedings. The employer, Browning Manufacturing Division, Emerson Electric Company (Browning), and its workmen’s compensation insurance carrier, Liberty Mutual Insurance Company (Liberty), deeming themselves aggrieved by the order, appeal to this court.

The appellee, Frank E. Paulus, was injured in an automobile collision while on the business of his employer Browning. With the full cooperation of Browning and Liberty, Paulus filed a complaint in the United States District Court for the Eastern District of Illinois, in which he sought recovery for damages he had sustained and would sustain in the future. The case was amicably settled, and a judgment was entered in favor of Paulus and Liberty for the sum of $40,050. The parties could not agree on the division of the recovery and an application for adjustment of claim was filed by Paulus with the Workmen’s Compensation Board attempting to have it resolve the dispute. A stipulation of fact which was filed with the Board has been attacked by the appellants as erroneous.

After much legal skirmishing, on May 19, 1975, the Board overruled claimant’s motion to submit the cause for determination on the stipulation and record, without the taking of proof, and sustained Liberty’s motion to dismiss. On June 9, 1975, claimant’s petition for reconsideration was overruled; however, on June 16,1975, the Board, on its own motion, ordered claimant’s motion to reconsider, which it had previously overruled, referred to a Board member for study. On June 23,1975, the Board filed an opinion and order in which it acknowledged error in dismissing Paulus’ claim and expressed regret at having lost jurisdiction to correct its error (KRS 342.281), and it suggested that the cause should be appealed to the circuit court “ * * * where it should be reversed, and we will try to correct these errors, be fair with both parties, and get the case disposed of properly when and if we get it back.” Claimant’s appeal to the Mason Circuit Court was filed on June 25, 1975. In due time and after a heated contest, the judge entered an order wherein the cause was “ * * * remanded to the Board for further proceedings including but not limited to the extent and duration of Petitioner’s disability, if any, the total disability benefits to which Petitioner is entitled, if any, and the credits against such disability benefits to which Respondents would be entitled, if any. * * Hence, this appeal. Appellants raise the same questions which were argued by them in the Mason Circuit Court.

Appellants present and skillfully argue what they conceive to be the proper method to be used in the distribution of the $40,050. The circuit court did not attempt to determine this issue; instead it remanded the cause to the Board so that the facts on which a proper division of the money could be made could be developed. KRS 342.-285(4) authorizes this procedure. In the subject action the Board refused to permit the introduction of evidence on issues that had been raised.

In Searcy v. Three Point Coal Co., 280 Ky. 683, 134 S.W.2d 228 (1939), it was held that where the Board arbitrarily refused to permit evidence to be introduced, the circuit court may remand the case to the Board for the taking of evidence. Furthermore, it is apparent from the record that the facts have not been fully developed so as to adequately present the issues which have been raised. This has been appellants’ contention from the time of the original filing of the petition for adjustment of claim on August 1, 1973. In Broadway & Fourth Avenue Realty Company v. Metcalfe, 230 Ky. 800, 20 S.W.2d 988 (1929), the court held that a cause could be remanded to the Board by the circuit court for further proof if the facts are not fully developed.

In the case at bar, the circuit judge was fully justified in remanding the case to the Board for the taking of proof and in not disposing of the issue until the facts were fully explored by the Board, nor will this court do so.

Further, appellants contend that the appeal from the Board to the circuit court was fatally defective in two respects. In the first instance it is charged that the “petition on appeal” failed to contain any allegation with respect to venue. Actually, venue is in the Mason Circuit Court and is not challenged. The challenge is that the petition on appeal does not contain any allegation with respect to venue. This matter was brought to the trial court’s attention in appellants’ motion to dismiss. CR 12.02. The Kentucky Rules of Civil Procedure provide that a party may amend his pleading once as a matter of course and any time before a responsive pleading is served. CR 15.01. An amended petition on appeal was filed before any pleading was filed by appellants. As a matter of fact, it was filed even before the court passed on appellants’ motion to dismiss. Assuming for the sake of argument that appellants’ contention is correct, the deficiency, if any, was remedied by the timely amendment.

Secondly, appellants argue that service of summons was not timely had on Liberty or on the Board. CR 3 provides:

“A civil action is commenced by the filing of a complaint with the court and the issuance of a summons or warning order thereon in good faith.”

This means that the summons must be issued with a good faith intention that it be served presently or in due course. The record discloses that the petition on appeal was filed on June 25, 1975. On the same day summonses were issued by the clerk of the Mason Circuit Court for Browning, Liberty, and the Workmen’s Compensation Board. Service was had on Browning on. June 25, 1975, on Liberty on July 3, 1975, and on the Board on July 14, 1975. This contention of the appellants is not borne out by the record.

Appellants’ motion to dismiss the appeal to the circuit court because allegedly it was not timely perfected is without merit, and was so held by the trial court.

Although appellee Paulus did not file a cross-appeal his counsel contends that the order of the circuit court remanding the cause to the Board is not an appealable order. The entry of this order by the circuit court was at the behest of Paulus. It has long been settled in this jurisdiction that a judgment of the circuit court setting aside an order of the Board and remanding the cause for a different disposition on the merits is appealable. Searcy v. Three Point Coal Co., supra; Brown Hotel v. Napier, Ky., 365 S.W.2d 311 (1962); Davis v. Baker, Ky., 530 S.W.2d 370 (1975).

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    John GOODLOE et al., Appellants, v. Charles BAESLER, Jr., et al., Appellees.
    Supreme Court of Kentucky.
    July 2, 1976.

      William C. Jacobs, Lexington, for appellants.
    David T. Enlow, Lexington, for appellee Charles Baesler, Jr.
    Leslie W. Morris, II, Stoll, Keenon & Park, Lexington, for appellees Rev. Bob W. Brown, et al.
   STEPHENSON, Justice.

The trial court granted summary judgment dismissing appellants’ complaint on the ground that a proposed amendment to the Lexington-Fayette Urban County Government Charter violated section 156 of the Kentucky Constitution. We affirm.

The appellants filed a petition with the Fayette County Clerk proposing an amendment to the charter of the Lexington-Fa-yette Urban County Government to be placed on the ballot at the next general election. The clerk refused to cause the proposed amendment to be placed on the ballot on the ground that the number of signatures of qualified voters on the petition did not comply with the amendment requirement of the charter. The appellants filed suit against the clerk in the Fayette Circuit Court alleging that the petition rejected by the clerk contained a sufficient number of signatures of qualified voters and seeking a mandatory injunction directing the clerk to cause the proposed amendment to be placed on the ballot. The appel-lees, other than the clerk, as citizens and taxpayers were permitted to intervene as defendants, asserting as a defense that the proposed amendment was illegal. The intervening defendants, appellees here, filed a motion for summary judgment. The motion was sustained by the trial court, and judgment was entered dismissing appellants’ complaint on the ground that the proposed amendment violated section 156 of the Kentucky Constitution.

Appellants assert (1) the proposed amendment is valid, and (2) the trial court erred in deciding the validity of the proposed amendment prior to submission to the voters.

The proposed amendment sought to amend section 15.13 of the charter.

Section 15.13 reads as follows:

“The Lexington-Fayette Urban County Government shall replace and supersede the governments of the City of Lexington and Fayette County on the effective date of this Charter. Thereupon, the governments of Fayette County and the City of Lexington shall terminate as separate political and government entities and be merged into the government created by this Charter in accordance with the terms and conditions specified therein.”

The proposed amendment provides:

“The governments of Fayette County and the City of Lexington, with the powers, privileges and territorial limits as each possessed on December 31, 1973 shall replace and supersede the Lexington-Fa-yette Urban County Government on January 1 of the year next following ratification hereof by a majority of votes cast at the regular election in favor hereof. Thereupon, The Lexington-Fayette Urban County Government shall terminate as a separate political and governmental entity.”

Appellants tell us “the real issue is nothing more, or less, than whether the voters of Fayette County are going to be allowed to decide what the form of their government is to be.” The simple answer to this proposition is, the voters of Fayette County decided that they desired the form of government authorized by the General Assembly (KRS 67A.010-67A.040), the Lexington-Fayette Urban County Government. We validated this legislation in Pinchback v. Stephens, Ky., 484 S.W.2d 327 (1972). We do not believe appellants would seriously assert their right to adopt this form of government in the absence of the enabling legislation by the General Assembly. Obscured by the lofty ideals posed in appellants’ proposition is the hard legal fact that the Lexington-Fayette Urban County Government is a creature of the General Assembly, as was city of Lexington before it, possesses only those powers granted by the General Assembly, and is subject to the power of the General Assembly to enlarge or diminish its powers or to be abolished at any time by act of the General Assembly. So we can say the electorate in this respect may decide the form of their government only within the framework of an act of the General Assembly. This leads us to the contention of appellants that their action “seeks only to give the voters of Fayette County an opportunity to decide if they want to keep what they have or return to what they had.”

In Holsclaw v. Stephens, Ky., 507 S.W.2d 462 (1974), we considered the validity of the charter of the Lexington-Fayette Urban County Government. A section of the charter providing that no amendment which has the effect of abolishing the charter shall become effective until such time as the General Assembly has established a successor government to replace and supersede the government established by the charter was declared invalid. The opinion went on to say at page 480:

“In the absence of legislation prescribing a method of abolition we do not undertake at this time to say what form of local government would prevail in the event the Charter should be abolished.”

KRS 67A.010 et seq. contain no procedure for abolishing the Lexington-Fayette Urban County Government, and we do not decide in this opinion whether the voters could abolish it absent authorizing legislation.

As to the status of the city of Lexington, Holsclaw states at page 476, “[w]e hold that the voters of Fayette County abolished the City of Lexington and its government when they adopted urban county government.” This clear language should answer appellants’ argument that the city of Lexington is lying dormant somewhere awaiting resurrection by the voters. Section 156 of the Kentucky Constitution provides that the General Assembly alone may provide how towns may be organized.

The proposed amendment appellants seek to place on the ballot is not constitutionally permissible. The trial court in deciding the validity of this amendment promptly and not permitting the charade of a vote on an invalid amendment found his authority in Utz v. City of Newport, Ky., 252 S.W.2d 434, at page 437 (1952):

“There is no right to obtain a vote of the people upon the enactment of legislation that would be invalid if approved by them. The court ought not to compel the doing of a vain thing and the useless spending of public money.”

This is a sound principle of lav? and we adhere to it.

The judgment is affirmed.

CLAYTON, JONES, LUKOWSKY, PAL-MORE, STEPHENSON and STERNBERG, JJ., concur.

REED, C. J., concurs in result only.


author: PER CURIAM. CLAYTON, Justice,

text:
    Mary Margaret DEVERELL et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    July 2, 1976.
    Joseph S. Freeland, Paducah, for appellants.
    Ed. W. Hancock, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellee.
   PER CURIAM.

Mary Margaret Deverell, Gary Bailey, and The Western Corporation were convicted upon a charge of exhibiting an obscene movie, and a judgment was entered levying a fine against each of them.

Upon this appeal there appears to be no merit in any claimed error except the one asserting that the evidence introduced by the Commonwealth was improperly admitted. Upon a trial of the charges, the Commonwealth introduced one witness, Police Officer James Eison, who gave a resume of the contents of a movie, “Temptation and Sin,” while simultaneously exhibiting to the jury a video tape of part of the movie. The video tape was in black and white; the movie was in color. The video tape was without sound; the movie presented a minimum of dialogue and a plenitude of loud music. The tape covered some thirty to thirty-two minutes of the forty- to forty-five-minute movie.

The police officer testified that he attempted to film those portions of each episode depicted in the movie which, in his opinion, were the most important. The officer, in giving his resume of the plot of the movie, expressed the opinion that there was hardly any plot at all. His dialogue covers some several pages of the transcript of evidence. In the course of the showing of the tape, the officer carried on a continuing commentary in which he described what was going on, the type and content of the conversation engaged in by the participants in the particular scenes, and the sound effect being produced by way of music. His testimony is replete with expressed opinions of what the characters in the film intended by their conversation and gestures. He graphically described the sex acts depicted, carefully directing the attention of the jury to certain aspects of the activity. He was thus permitted to express his opinion in regard to scenes depicted.

His testimony was, at the best, nothing other than his version of “Sin and Temptation,” as drawn from his original viewing of the movie and the video tape exhibited. His testimony had the effect of “herding” the jury, whether voluntarily or reluctantly, along the primrose path of “guilty.”

The video tape was made “early in the game” and was exhibited first to a police judge in order to get a search warrant that would permit confiscation of the film. The search warrant is in the record, and the affidavit is so terribly defective that the court quashed the warrant and directed the return of the confiscated film. Therefore, when the case came on for trial, the Commonwealth was severely hampered by its inability to produce the film.

The admission of the police officer’s testimony and the showing of the video tape were over the strenuous objection of the accused. However, the objection to the introduction of the tape concerns itself primarily with the requirement that any determination that the film was obscene must be based upon a consideration of the film “as a whole.” The consequence of this argument would result in a finding that a ten-minute lapse in the film destroys the consideration “as a whole,” as required in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and as re-emphasized in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The phrase “as a whole” does not necessarily create the impression of a requirement that the entire work be viewed frame by frame or page by page. Roth and Miller stand for the proposition that a court cannot lift out of context and use isolated instances of obscenity for the purpose of proving the entire work to be obscene in nature. Miller requires that the court proceed to the point where it can make a proper finding concerning the obscenity of a movie. The court is required to weigh the scenes it finds objectionable in relation to the movie as a whole and determine whether its overall worth more than counterbalances possible obscene or pornographic bits or sequences. A footnote in Cambist Films, Inc. v. Duggan, 298 F.Supp. 1148 (D.C.1969), suggests that the film itself is the best evidence or indispensable evidence on the question of the nature of the film and that, therefore, the film itself should be the only thing admissible.

It would appear that the video tape might well satisfy the requirements of the United States Supreme Court concerning the viewing of a claimed obscene film. However, this court cannot overlook the consequences of permitting a police officer to testify regarding the film in such a manner as to give his view of the impact a film might have upon the public and expressing conclusionary statements on his part regarding the question of obscenity.

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

REED, C. J., and JONES, LUKOWSKY, PALMORE, STEPHENSON and STERN-BERG, JJ., concur.

CLAYTON, J., dissents.

CLAYTON, Justice,

(dissenting).

I respectfully dissent from the majority opinion. Much too often in cases of this type the well-considered verdict of the jury is summarily set aside.

The testimony of Detective Eison neither added to nor took away from the other evidence, and even if the admission of his testimony were error it could not have been prejudicial to appellants. Considering the fact that the sound track of the film consisted of only a negligible amount of dialogue and musical accompaniment, the video tape alone would have been sufficient to support the conviction. In movies such as the one involved in this case where no plot of any significance is discernible and the film is merely a vehicle for the exhibition of repeated scenes of explicit sex, it is my opinion that blind adherence to Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and subsequent cases is not required. As advanced by the majority, Roth stands primarily for the requirement that a work challenged as obscene be viewed as a whole, i. e., that part(s) thereof may not be lifted out of context and judged separately from the whole.

The 32-minute video tape challenged herein amounted to substantially all of what was contained in the 42-minute movie. In State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973) the Washington court in a similar obscenity case held that a video tape of eight films was admissible. In J-R Distributors, Inc., the video tape consisted of “segments” spliced together to reproduce the eight films as nearly as possible in their entirety. The actual films had been in color and projected at 24 frames per second, but the video tape was in black and white and projected at 18 frames per second. Even considering these differences it is seen that the video tape in J-R Distributors, Inc. was a reproduction which was substantially the same as the film and thus was admissible. In the instant case the admission of the video tape into evidence was permissible under like reasoning.

The fair and equitable administration of justice does not require that defendants in a criminal prosecution be guaranteed an error-free trial. In Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969), this court said at page 952:

" . . . [I]f upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.”

For the foregoing reasons I would affirm the judgment.


author:
STERNBERG, Justice.
      PALMORE, Justice JONES, Justice

text:
    COMMONWEALTH of Kentucky ex rel. DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION et al., Appellants, v. Morris STEPHENS et al., Appellees (two cases). Morris STEPHENS et al., Cross-Appellants, v. COMMONWEALTH of Kentucky ex rel. DEPARTMENT FOR NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION et al., Cross-Appellees.
    Supreme Court of Kentucky.
    July 2, 1976.

      Robert F. Stephens, Atty. Gen., Frankfort, R. Lee Armbruster, Special Asst. Atty. Gen., George L. Seay, Jr., Dept. N. R., Frankfort, for appellants and cross-appel-lees.
    Homer W. Ramsey, Whitley City, J. B. Johnson, Sr., Williamsburg, for appellees and cross-appellants Morris Stephens and Tombstone Junction Enterprises.
    A. Robert Doll, Ronald D. Ray, Greeneb-aum, Doll, Matthews & Boone, Louisville, Lively M. Wilson, Winfrey P. Blackburn, Jr., Stites, McElwain & Fowler, Louisville, J. T. Begley, Lexington, for amicus curiae.
   STERNBERG, Justice.

The appeal of these three consolidated cases evidences a running dispute between the Kentucky Department for Natural Resources and Environmental Protection (the Commonwealth) and the landowners concerning rights to property within the Wild Rivers area of the Cumberland River. All of the issues can logically be disposed of in this one opinion, and they will be so handled. The appellants will be referred to as the Commonwealth and the appellees will be referred to as the landowners.

It will be helpful to a full and complete understanding of these proceedings and of the issues presented if the proceedings in the Franklin Circuit Court are detailed. They are:

11 — 1—74 Verified complaint filed in which the Commonwealth sought to enjoin the landowners “ * ' * * from cutting timber and otherwise disturbing an area designated as a Wild River.”

11-1-74 The restraining order issued, prohibiting the defendants “ * * * from cutting timber, road building and any other land uses not allowed by KRS 146.-290 within the exterior boundaries of a stream section designated by KRS Chapter 146 as a Wild River, that section being the Cumberland River from Summer Shoals to the backwater of Lake Cumberland and the defendants’ activities being within the section, approximately 300 feet upstream from Cumberland Falls on the west bank of the Cumberland River in McCreary County, Kentucky, * * *”

11-20-74 Landowners filed a motion to dissolve the restraining order and a motion to dismiss under CR 12.02.

12-6-74 Commonwealth filed a motion for a temporary injunction.

12-10-74 Commonwealth’s motion granted and temporary injunction issued. It is substantially the same as the restraining order issued on November 1, 1974.

6 — 24—75 Circuit court opinion filed.

8-27-75 Final judgment entered, in which it was adjudged:

“1) The Kentucky Wild Rivers Act, KRS Chapter 146 is constitutional and the injunctive process is available to the Attorney General to prevent or correct a condition constituting a violation of that Act.
“2) The Commonwealth shall, simultaneously with the request for injunctive relief, initiate proceedings either by condemnation or otherwise to compensate the land owner for the rights to his real property taken by the Commonwealth’s enforcement of the Wild Rivers Act.
“3) The Defendants’ motion to dismiss and the motion to dissolve the temporary restraining order are overruled.
“4) The Defendants may apply to this Court for such relief as justice may require if the Commonwealth does not forthwith take the action required by this judgment.
“5) This matter will be retained on the docket pending further orders of this Court.”

9-23-75 Commonwealth filed its notice of appeal.

10-1-75 Commonwealth filed its designation of record on appeal.

10-9-75 Landowners filed a notice of cross-appeal and a designation of record on cross-appeal.

10-27-75 Landowners filed a motion to dissolve restraining order and motion to find “plaintiff in contempt of Court” and “to transfer this action to the McCreary Circuit Court,” supported by the affidavits of Morris Stephens and Homer Ramsey.

10-27-75 Landowners filed a motion for a rule to issue requiring the Commonwealth to show cause why it should not be punished for contempt of court.

10-27-75 Order issued requiring Commonwealth to appear and show cause why it should not be adjudged in contempt of court.

11-3-75 Order entered as follows:

“A Rule having issued against plaintiffs, returnable on November 3, 1975, to show cause why plaintiffs should not be held in contempt of this Court and the plaintiffs having appeared and the Court having heard arguments of counsel and having been sufficiently advised, is of the opinion that the plaintiffs have failed to comply with the final Order and Judgment of this Court in that plaintiffs have failed to initiate proceedings to compensate the defendants for their property. Therefore, it is hereby Ordered and Adjudged that the plaintiffs are found to be in contempt of this Court.
In order to allow the plaintiffs the opportunity to appeal to the Court of Appeals, this Order shall not become effective until November 13, 1975.”

The Wild Rivers Act was enacted at the regular session of the 1972 General Assembly (SB 138, Gh. 117) and amended at the regular session of the 1976 General Assembly (SB 309, Ch. 197).

File No. 75-1050 is an appeal by the Commonwealth from the final judgment of the Franklin Circuit Court dated August 27, 1975. File No. 75-1099 is a cross-appeal by the landowners from the same judgment. File No. 75-1177 is an appeal by the Commonwealth from an order of the Franklin Circuit Court dated November 3, 1975, which found the Commonwealth to be in contempt of court.

The Kentucky Wild Rivers Act proposes to preserve certain streams in their present state because their natural, scenic, scientific, and aesthetic values outweigh their value for commercial use or development. (KRS 146.220). One of the streams designated by the act is “The Cumberland River from Summer Shoals to the backwater of Lake Cumberland.” (KRS 146.240(1)). Somewhere within this general area lies the property of the landowners, and it is the use of this property by the landowners that has been enjoined.

At the outset we are faced with the proposition that the privilege of a landowner to the use and enjoyment of his property in any way he sees fit, so long as he does not infringe upon the rights of others, is an inviolate incident to total ownership. Three Rivers Rock Company v. Reed Crushed Stone Company, Ky., 530 S.W.2d 202 (1975). Any infringement of this right comes as an exception. Of course, the right of a state to regulate is within is police powers. In the proper exercise of police powers the right to use the property may be limited without compensation. City of Shively v. Illinois Central Railroad Co., Ky., 349 S.W.2d 682 (1961); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

We must concern ourselves with the announced legislative purpose.

The beauty of the Cumberland River is something wonderful to behold. To a large extent God’s handiwork remains yet un-searred by the greed of man. Wildlife remains in abundance. Deer, raccoons, rabbits, opossums, skunks, foxes, and squirrels are a common sight. The call of the wild turkey and the swirl of grouse and quail are often heard. Virgin timber reaches skyward to such heights that the squirrels nestled in the upper branches are safe from the hunter’s gun. The wild ferns, the mayapple blossoms, the rhododendrons, the laurel, the redwood, and the dogwood trees yet abound free from the blade of the miner. This is what the legislature proposed to preserve for posterity, and this is what the Commonwealth is seeking to do in this action.

The circuit judge found that the question to be resolved is twofold:

(1) Is the Kentucky Wild Rivers Act constitutional, and
(2) If it is, may the Commonwealth, by injunctive process, constitutionally deprive the owners of the use of their property without just compensation?

The Commonwealth contends that the Act is an exercise of the state police powers and, as such, is constitutional even though no compensation is made to the property owners for interference with their right to the use of their property.. The property owners vigorously disagree with the contention that the Act is an exercise of police powers; however, they do agree with the Commonwealth that the Act is constitutional. They argue that since the Act is constitutional the Commonwealth must pay for what it takes. The trial court held the Act to be constitutional and directed the Attorney General to proceed to compensate the landowners for the rights to their real property which the Commonwealth had attempted to take.

No one contests, and it is beyond cavil that the General Assembly was interested in preserving some of our streams in their natural condition because of their scenic, scientific, and aesthetic values. In order to do that, the secretary for the Department for Natural Resources and Environment Protection is authorized to acquire within the boundaries of the designated stream area, as authorized by statute and established by the secretary, the fee simple title to, a scenic easement on, or any acceptable lesser interest in any lands. The acquisition may be by the exercise of the rights of eminent domain, by grant, by gift, by devise, or otherwise. (KRS 146.280). Thus, the General Assembly has set up a method and program for carrying out the pronounced purpose. Being cognizant of the constitutional limitation on the taking of any interest in property without first paying for it, the General Assembly provided in the Act that “Nothing in KRS 146.200 to 146.350 shall be construed to deprive a landowner of his property or any interest or right therein without just compensation.” (KRS 146.280). Clear, concise, straight, and to the point! The legislature said that the state may take a person’s property, but when it does it must pay for what it takes.

After analyzing the issues, we believe the answer to the dilemma confronting the parties lies in a determination of whether the Act is self-executing or is merely enabling legislation. If it is self-executing, then the legislature itself has made a taking, has designated the land use, and has attempted to provide for deferred payment. On the other hand, if the Act is enabling legislation only, we must examine the Act itself to ascertain the methods or programs by which the goal which the legislature sought to accomplish may be accomplished.

In Pennsylvania Coal Company v. Mahon, supra, the question presented was whether the police power of the state could be stretched so as to destroy previously existing rights of property and contract. The Supreme Court of Pennsylvania held in the affirmative. The Supreme Court of the United States reversed. In discussing the issue, that court said:

“The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. * * * ÍJ

These rights we hold inviolate, and we must not hesitate to say so.

The General Assembly has provided that the Wild Rivers system shall be administered by the Department for Natural Resources and Environmental Protection according to the policies and criteria set forth in the Act. (KRS 146.270). It further clothed the secretary for the department with authority to adopt rules or regulations necessary for the preservation and enhancement of the stream areas and for the control of recreational, educational, scientific, and other uses of these areas in a manner that shall not impair them. (KRS 146.270). As standards for uniformity in the uses of the lands “within the exterior boundaries of a designated stream area,” after designation by the secretary according to the terms of the Act, the General Assembly provided that (1) no new roads or buildings shall be constructed; (2) utility lines or pipelines shall not be constructed unless approved by the secretary in writing and under provision that the affected land shall be restored as nearly as possible to its former state; (3) there shall be no mining; (4) select cutting of timber shall be allowed only pursuant to regulations issued by the secretary; (5) all land disturbances, including instream disturbances such as dredging, shall be prohibited; (6) except for the management agency, access shall be by foot, horseback, canoe, boat, or other non-mechanical modes of transportation; and (7) if there are existing agricultural areas within the boundaries of the area, such areas may continue to be used for agricultural purposes. (KRS 146.-290).

We hold the act to be enabling legislation and, as such, the Commonwealth is required by Section 13 of the Kentucky Constitution to pay for what it takes before the taking. Goodwin v. Goodwin’s Executor, Ky., 290 S.W.2d 458 (1956). To hold that the Act is self-executing would violate Section 13 of the Kentucky Constitution, notwithstanding KRS 146.290.

KRS 146.240 designates eight streams which are included in the Wild Rivers system. Subsection (1) of this statute is the stream area about which the action is centered. There is absolutely no way possible to designate with any degree of accuracy the boundaries of this area because the statute does not describe them. Realizing this shortcoming, we are aided by certain standards other than those set out in KRS 146.290. The criteria for the selection of streams to be included in the Wild Rivers system are set out in KRS 146.230. The boundaries of the streams are to be established pursuant to the provisions of KRS 146.250. It would be folly to contend that the area designated by KRS 146.240 constitutes the protected region. As far as the subject area is concerned, the only protection that KRS 146.240 gives is of the Cumberland River itself. It does not include any area of land on either side of the river. To facilitate the purpose of the Act, the secretary of the Department for Natural Resources is required to establish the boundaries of the protected area. In doing so, the secretary is directed by KRS 146.250 that the “Establishment of these boundaries shall be accomplished in such a way that it includes at least the visual horizon from the stream, but not more than two thousand five hundred (2,500) feet from the center of the stream. The boundary shall further include access points, at the upstream and downstream boundary of the area.” The distance from the center of the stream was reduced to 2,000 feet by the 1976 amendment to the Act.

The court is advised that the secretary for the Department for Natural Resources has not as yet determined the boundaries of the stream area of the location with which we are concerned, even though he was directed to make the designation by June 16, 1974. Is the validity of the Act and its enforcement dependent upon the designation’s having been made by June 16, 1974? The 1976 amendment to KRS 146.250 reiterated the requirement that the designation be made by June 16, 1974, even though that date had passed. We are of the opinion that the provision for the designation of the boundaries of the area is mandatory, but the date for the making of the designation is directory. It is not necessary in the determination of the issues here presented that we decide, and we do not decide, within what period of time this designation must be made. Since the designation has not been made, how then is the trial court or this court justified in determining that the location at which the landowners propose to cut trees or disturb the area is within the boundaries of a designated stream area? The stream area has not been designated. Argumentative it may be that ten feet of the landowners’ property would be within the boundaries; it may be that 100 feet would be thus located; it may be that all of the property would be in the area; or it may be that none of the property would be within the boundaries of the designated stream area. Until the stream area is designated, this is an unknown element, and there can be no violation of the Act until the stream area is designated.

The landowners’ motion to dismiss called to the trial court’s attention the fact that no boundary designation had been made, but to no avail. We are of the opinion that the motion was well taken; it should have been granted and the complaint should have been dismissed.

Next, we turn our attention to appeal No. 75-1177, which is from the order of November 3, 1975, holding the Commonwealth in contempt. By the terms of this order, the trial judge found the plaintiffs to be in contempt of court. The order was based upon the court’s finding that the Commonwealth had failed to comply with its final order and judgment dated August 27, 1975. That judgment had been appealed to the Court of Appeals of Kentucky. On September 23, 1975, the Commonwealth filed its notice of appeal, and on November 1, 1975, filed its designation of record. So, at the time the trial court held the Commonwealth in contempt (November 3,1975), the final judgment (August 27, 1975) had already been appealed. Furthermore, in the order holding the Commonwealth in contempt, the court directed that the contempt order not become effective until November 13, 1975, in order to permit the Commonwealth to appeal. Although the Commonwealth had not appealed the contempt order by November 13, 1975, it did file its notice of appeal on November 25, 1975, and that matter is presently before this court.

On November 6,1975, the Commonwealth filed an original action in this court unsuccessfully seeking to prohibit the judge of the Franklin Circuit Court from enforcing the contempt order. Commonwealth of Kentucky ex rel. Department for Natural Resources v. Williams, Ky., 536 S.W.2d 474 (rendered May 7, 1976). We are of the opinion that the Commonwealth was pursuing a good faith effort toward presenting the contested issues to this court and that such conduct did not amount to a contempt of the order of the Franklin Circuit Court.

So much of the judgment of the Franklin Circuit Court as holds the Kentucky Wild Rivers Act constitutional is affirmed; in all other respects the judgment and the order of November 3, 1975, are reversed for proceedings consistent with this opinion.

All concur, except JONES, J., who dissents.

PALMORE, J., files a separate concurring opinion, in which REED, C. J., and STEPHENSON, J., join.

JONES, J., files a dissenting opinion.

PALMORE, Justice

(concurring).

The “wildest” aspect of this controversy involving the “Wild Rivers Act” is that a suit was brought to enjoin a violation of the act within a geographic area that has never been defined as required by KRS 146.250. Technically that should end the matter and obviate the rest of the discussion. What the majority opinion does, however, is to provide some future guidance by pointing out these things:

(1) The restrictions contained in KRS 146.290, though probably intended to become effective upon designation of the boundaries pursuant to KRS 146.250, so substantially reduce the owners’ private property rights that they (the restrictions) exceed the traditional scope of the police power and therefore cannot take effect unless and until the owners are paid just compensation for the loss of those rights.

(2) This being so, there can be no injunc-tive relief until the extinction of the owners’ rights is accomplished, either through negotiated conveyance or eminent domain. Since our Constitution, Sec. 13, requires payment in advance of the taking, it is impossible for injunctive relief to be granted either before or simultaneously with the commencement of a condemnation proceeding.

Elaborating on these points, I would add that if the restrictions provided by KRS 146.290 were immediately effective under the police power, there would be nothing for the state to acquire by condemnation unless perhaps it wished to acquire full ownership of the property (erroneously described in KRS 146.280 as “fee title”). That is the real anomaly in the judgment entered by the trial court. It is an example of legal schizophrenia, saying in effect that the restrictions are in force and are protectable by injunction, but the state must nevertheless go on with a condemnation proceeding. As mentioned above, however, if the restrictions are in force, and if that is all the state wants, there is nothing for it to acquire in a condemnation proceeding.

It is a matter of deep regret to me that we cannot uphold the right of the state to “freeze” the use of these wild rivers areas without having to incur the expense of compensating the private owners. Nevertheless, having searched the authorities elsewhere to make certain that we are not being unnecessarily conservative in our estimation of the police power, I believe that if we held otherwise the United States Supreme Court would declare the effect of KRS 146.290 to be a taking of property without due process of law. And, after all, if the state can simply extinguish one’s right to mine, cut timber or put buildings on land that has no real value for any other private purpose, what can the due process clause mean? Private ownership of property is fundamental to our system, and if the system is to be changed it should not be changed by the courts.

One last note which may seem trivial: I do not understand why the drafters of statutes persist in using the term “fee simple” or “fee title” to distinguish corporeal from incorporeal rights. “Fee simple” measures title in terms of time, meaning forever. It is equally applicable to corporeal title and to easements, which, being rights to use as distinguished from the right to possess and exercise general dominion over the property in question, are called incorporeal. I simply deplore the continuing bastardization of a great and rich language. Of all people, lawyers should know better.

REED, C. J., and STEPHENSON, J., join in this concurring opinion.

JONES, Justice

(dissenting).

I respectfully, but vigorously dissent from the majority opinion for reasons enumerated in the dissent.

I agree that the enactment of the Kentucky Wild Rivers Act by the General Assembly at its 1972 session served a laudable purpose. The legislative scheme of preserving the unique primitive character of the Wild Rivers area for all the citizens of the Commonwealth is commendable. It is pleasant,

“To him who in the love of Nature holds
Communion with her visible Forms, she speaks
A various language.”

It refreshes one’s spirit to tread the forest primeval; to see and hear the murmuring pines and the hemlocks bearded with moss, and in garments green. To hear and see the cascading waters of Cumberland Falls in its picturesque setting is an experience that lingers long in memory.

The legislative scheme to preserve the beauty in the designated areas was never intended to be accomplished by imposing the burden of the cost and a restriction of use on the owners of property within the designated area. A comprehensive study of provisions of the act reveals no ambiguities. The purpose, intent, regulation and enforcement of the provisions are detailed in clear, concise and simple language.

It would be repetitious to detail every procedure — every step taken in this continuing controversy of two years’ duration. The Kentucky Wild Rivers Act became effective over four years ago. Almost two years have passed since the trial court issued a restraining order prohibiting Morris Stephens from “. . . cutting timber, road building, and any other land uses allowed by KRS 146.290 within the exterior boundaries designated by KRS Ch. 146 as a wild river, that section being the Cumberland and River from Summer Shoals to the backwater of Lake Cumberland, and the defendant’s [Stephens] activities being within the section approximately 300 feet upstream from Cumberland Falls on the west bank of the Cumberland River in McCreary County, Kentucky. . . . ” Subsequently, the Commonwealth was granted a temporary injunction with the same effect as the restraining order. Since December 10,1974, that injunction has been in full force and effect. Out of the “tangled morass” of legal procedure has emerged a scheme by the Commonwealth to take private property for public use without just compensation. That concept violates both the United States Constitution and the Kentucky Constitution.

The majority construes the Wild Rivers Act as enabling legislation. My view is to the contrary. I am convinced that on June 16, 1972, when the act became effective, Morris Stephens and other property owners within the designated area were restricted in the use of their property. There was a taking. There was, “an interference with the legally protected use to which the land has been dedicated, which destroys that use or places a substantial and additional burden on the landowner to maintain that use is a ‘taking’ of his property.” Since the act became effective more than four years ago, Morris Stephens cannot pluck a wild flower, cut a “riding switch,” lift a stone, or construct a passway on his property. There has been such substantial interference by the Commonwealth so as to destroy his right to the use and enjoyment of his property. A portion of the act designated that:

“. . . [establishment of these boundaries shall be accomplished in such a way that it includes at least the visual horizon from the stream, but not more than two thousand five hundred (2,500) feet from the center of the stream. The boundary shall further include access points, at the upstream and downstream boundary of the area.”

The fact that the Commonwealth has failed to comply with the legislative intent is irrelevant. A dereliction of duty is not sufficient to erase the restriction — -the taking of private property without just compensation.

I am convinced that in order to conform to the purpose and legislative intent of the Wild Rivers Act, the protection embodied in the act was to be extended to all streams designated from the moment that the act became effective. When the legislature designated that portion of the Cumberland River which is in dispute here, as part of the Wild Rivers System, all development not in accord with KRS 146.290 was then prohibited.

I am buttressed in my view by that portion of the majority opinion that holds:

“The landowners’ motion to dismiss called to the trial court’s attention the fact that no boundary designation had been made, but to no avail. We are of the opinion that the motion was well taken; it should have been granted and the complaint should have been dismissed.”

Had the complaint been dismissed there would have been nothing to prevent a multiplicity of actions seeking a solution to the questions before the trial court in this action.

However, since the majority takes the position that it is not the purpose of injunctions to determine substantive rights as regards a landowner, but is alright for the Commonwealth, that concept is difficult to swallow. What is “sauce for the goose is sauce for the gander.” If the Commonwealth could restrict the landowner’s use of his property, why should it not have been required to pay for the taking?

I am not impressed with the majority’s view that the Commonwealth was in good faith pursuing anything. All the Commonwealth desires is relief from the order adjudging it in contempt. The Commonwealth has flagrantly, openly and notoriously violated the trial court’s order. Then, it asserts:

“To penalize this party [the Commonwealth] from what is clearly, at worst, excusable error would contradict the clear intent of our judicial system to provide justice tempered by fairness. . . ”

For the Commonwealth to state that Morris Stephens has suffered no real harm as a result of the Commonwealth’s actions is absurd. In fairness it should not have been so asserted.

As we celebrate this bicentennial year, may we follow the precepts of good faith and integrity established by the founding fathers. Let us remember that no one, including the sovereign, is above the law. It is the duty of a governmental department to obey an injunction. A court’s order would be an exercise in futility if this were not so.

The trial court held that, “. when an injunctive procedure which will deprive the land owner of any rights to his property, is instituted the Commonwealth should forthwith initiate proceedings to compensate therefore either by negotiation or condemnation.” In substance, the trial court told the Commonwealth to “fish” or “cut bait.” Yet, it has done nothing to comply with the trial court’s judgment and order.

The trial court properly resolved the issues in accordance with the provisions of the act. He made proper findings that in my view are not clearly erroneous. CR 52.01.

For the reasons set out in this dissent, I would affirm the judgment of the trial court.

      . Various “wetlands” acts prohibiting the dredging and filling of marsh lands provide the closest comparison. There, however, there is nothing much the owner can do with the property in its present state, whereas land that already is rich in timber and minerals and desirable for residential and recreational development has great value “as is” and now.

      . The Kentucky Wild Rivers Act referred to is KRS 146.200 through 146.990.

      . Bryant, Thanatopsis.

      . The fifth amendment provides, “. . nor shall private property be taken for public use without just compensation.”

      . Section 242 of the Kentucky Constitution provides that any person or corporation who has, “the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking." (Emphasis added)

        .Commonwealth v. Kelley, 314 Ky. 581, 236 S.W.2d 695 (1951)

      . Wallace v. Sowards, Judge, 313 Ky. 360, 231 S.W.2d 10 (1951).


author: PER CURIAM.

text:
    KENTUCKY BAR ASSOCIATION, Complainant, v. William F. BURBANK, Respondent.
    Supreme Court of Kentucky.
    July 2, 1976.
    Leslie G. Whitmer, Director Kentucky Bar Assn., John T. Damron, Asst. Director Kentucky Bar Assn., Frankfort, for complainant.
    Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for respondent.
   PER CURIAM.

On July 22,1975, the Kentucky Bar Association, through its inquiry tribunal, filed charges against William F. Burbank, a Louisville attorney and a member of the Kentucky Bar Association. The tribunal charged that Burbank engaged in unprofessional and unethical conduct as follows:

Count I — “In or about February and March, 1975, Respondent Burbank represented Virginia Collins, whose last known address is 200 S. 7th Street, Louisville, Kentucky 40202, in her negotiations for the purchase of real estate. In so doing, Respondent came into contact with real estate agents of the Paul Semonin Company of 4812 U. S. Highway 42, Louisville, Kentucky 40202, to wit: Evelyn Walker and Fred B. Hodapp. Respondent told Walker and Hodapp that if a sale resulted from negotiations on a particular property then the real estate commission must be split between the Paul Semonin Company and himself, thus, having the effect of forcing the seller, who is not Respondent’s client, to pay Respondent a fee for the negotiations in which Respondent represented Collins, the buyer.”
Count II — “Within the same facts and circumstances described in Count I above, Respondent was attempting to obtain a commission from the sale of real estate without being licensed as a real estate agent as required by KRS 324.020 and without representing a client in the scope of his duties as a practicing lawyer on a matter which causes the sale of real estate to be an incident thereto.”

Burbank filed a response. He contended that he was representing a client in the purchase of real estate and performing certain professional acts within the scope of his duties as an attorney. The inquiry tribunal determined that Burbank’s response raised issues of law and not of fact.

Burbank’s counsel, in a letter to the director of the Kentucky Bar Association, agreed that there were no factual issues involved. Later Burbank requested this court to remand the case to the Board with directions that a trial committee receive further evidence. The motion to remand was denied by this court. The Kentucky Bar Association contends that it was unethical for Burbank to split a commission with a real estate agency when he was not a licensed real estate agent. The Bar Association also contends that since Burbank was not a licensed real estate agent, his conduct violated the standards of conduct outlined in the Code of Professional Responsibility.

The thrust of Burbank’s argument is that his submission of an offer to purchase real estate with the provision that the selling agent split the commission with the buyer is not a violation of the Code of Professional Responsibility.

The facts are relatively simple. In early 1975 Burbank entered into negotiations on behalf of another Louisville attorney (now his wife) for the purchase of certain real estate. After viewing two residential lots shown by agents of the Paul Semonin Company, Burbank proposed oral contracts on two properties and one written proposed contract. These contracts included a provision that the seller would pay a commission to be divided between the Paul Semonin Company’s agent and Burbank. None of the contracts were consummated.

Burbank admitted the negotiations. However, he now argues he was not seeking a commission for himself. His desire was to lower the costs to the buyer.

When the issues were joined the matter was referred to the Board of Governors of the Kentucky Bar Association. The Board adjudged Burbank guilty. It recommended to this court that Burbank be publicly reprimanded and required to pay the costs in this action. A review of the record in this case convinces this court that Burbank’s conduct in requesting a split in the fee was unethical, and was of the type calculated to bring the profession into disrepute.

The practice of law is an honorable profession. No lawyer should ever do any act or acts that would in any way reflect upon the honorable profession of the law. Every lawyer worthy of the profession should, like “Caesar’s wife, be above suspicion.”

This court is not unmindful of the quips and attacks on the integrity of the legal profession through the years. Nevertheless, the legal profession is regarded as a highly responsible and noble profession.

One who chooses to be an advocate—to be a lawyer, selects a profession that is among the most exalted that ever engaged ambitious and intellectual men.

As the Bicentennial is celebrated this year, the court is mindful that a majority of the delegates to the Constitutional Convention were lawyers. Their actions and their deeds in formulating the Constitution are fitting examples of a profession to which the present and posterity must look to the preservation of what is cohesive in our social organism.

“. . . Because of his position in society, even minor violations of the law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.”

The standards of conduct of a lawyer, outlined in the Code of Responsibility are guidelines for every member of the bar. Burbank failed to adhere to the guidelines. He assumed his license to practice law gave him a license as a real estate agent. His complaint about the Kentucky Real Estate Commission is not relevant here. That is a matter that addresses itself to that agency.

A review of this record convinces this court that the action of the Board of Governors in recommending a public reprimand of Burbank was proper.

It is the judgment of this court that William F. Burbank be publicly reprimanded and that he be required to pay the costs of this action.

All concur except STERNBERG, J., not sitting.

      . Plutarch Lives; Julius Caesar, Sec. 10.

      . American Bar Association Code of Professional Responsibility, E.C. 1-5.


text:
    Charles David MARTIN, Petitioner, v. Honorable William G. FUQUA, Judge, Todd Circuit Court, Respondent.
    Supreme Court of Kentucky.
    July 26, 1976.
    Tom Osborne, Osborne & Deatherage, Hopkinsville, for petitioner.
    W. Douglas Myers, Keith, Scent & Osborne, Hopkinsville, for respondent.
   PER CURIAM.

The petitioner, Charles David Martin, seeks an order of this court prohibiting the respondent judge of the Todd Circuit Court from further proceeding with a divorce action filed in his court by the petitioner’s wife, Phyllis Martin. The basic ground for such relief is petitioner’s allegation that when the action in respondent’s court was commenced Phyllis did not “usually reside” in Todd County as required by KRS 452.470, the venue statute. We assume jurisdiction of the proceeding pursuant to Const. § 110 (2)(a) and (b) only because the Court of Appeals is not yet organized and ready to function. “Uniformly . . this court has exercised its discretionary powers under Constitution § 110 to consider the merits of venue questions in divorce actions.” Burke v. Tartar, Ky., 350 S.W.2d 146, 148 (1961).

The Martins married in 1970 and resided in Hopkinsville, Christian County, Kentucky, from 1972 until the events culminating in this litigation occurred. In September of 1975 they had a falling-out and she went to the home of her parents in Todd County, shortly after which she brought suit for a divorce in the Todd Circuit Court. Several days later the parties were reconciled, temporarily at least, and Phyllis returned to the marital home in Hopkinsville. The Todd County action hung in abeyance. On the night of May 10, 1976, following another argument with Charles, Phyllis went back to the home of her parents in Todd County, and on the next day, May 11, 1976, she filed and had summons issued on an amended complaint for divorce in the Todd Circuit Court. On the same day Charles commenced a divorce proceeding against Phyllis in the Christian Circuit Court.

The record before us does not disclose the times of the day on May 11, 1976, when the respective actions were commenced in Todd County and Christian County. Summons in the Christian County suit was served on May 13,1976, and in the Todd County suit on May 15, 1976, but that is of no moment because it is the commencement of the action that governs the order of preference, as between the two trial courts, in determining the issue of venue. We say “order of preference” in order to emphasize that we are not dealing with a question of jurisdiction. Cf. Burke v. Tartar, Ky., 350 S.W.2d 146, 148 (1961). Both courts have jurisdiction to hear divorce actions and thus have subject-matter jurisdiction, and each court has jurisdiction of the parties through service of process. It is just a matter of “right-of-way,” or traffic regulation.

On May 12, 1976, the Christian Circuit Court entered an order granting to Charles temporary custody of the 5-year-old child of the parties. On May 13, 1976, the Todd Circuit Court entered a similar order in favor of Phyllis. On June 2, 1976, pursuant to a motion by Charles for dismissal on the ground of improper venue, the Todd Circuit Court conducted an evidentiary hearing, on the basis of which the respondent, as judge of that court, dictated findings and conclusions to the effect that on May 11, 1975, when her amended complaint was filed, Phyllis had in good faith removed her residence to Todd County within the meaning of KRS 452.470. Therefore, on June 4, 1976, the Todd Circuit Court entered an order denying Charles’ motion to dismiss on the ground of improper venue.

Following this determination of the venue question by the Todd Circuit Court, Phyllis moved the Christian Circuit Court for dismissal of the action in that court, and on June 14, 1976, the motion was granted by an order vacating the May 12, 1976, custody order and dismissing the action. Later, however, pursuant to a motion by Charles, the Christian Circuit Court on June 16, 1976, vacated its order of June 14, 1976, pending further proceedings. That brings the procedural history of the two cases to this point except for one further detail, which is that Charles presently is under a rule from the Todd Circuit Court to show cause why he should not be held in contempt for failure to comply with its custody order of May 13, 1976.

All other things being equal, under Blanton v. Sparks, Ky., 507 S.W.2d 156, 157 (1974), the court in which the second action is filed should hold the litigation in that court in abeyance until the court in which the first action was brought has had an opportunity to resolve the issue of venue. In this instance the record does not show which action was filed first, but since the question of venue was first reached and decided by the Todd Circuit Court there is no substantial reason why that should not end the matter, subject, of course, to the right of appeal following final judgment. See Turner v. Gentry, Ky., 402 S.W.2d 104, 105 (1966).

There is no compelling reason for this court to preempt the venue question when all of the matters before the trial court are appealable. Both parties having sued for divorce, it may be assumed that neither of them will be aggrieved by a judgment dissolving the marriage, regardless of which court enters it. Hence the only unappealable aspect of such a judgment becomes irrelevant, and there is no necessity for us to pass on the merits of the venue question as decided by the Todd Circuit Court.

Prohibition is therefore denied.

All concur, except JONES, J., not sitting.

      . It was held in Blanton v. Sparks, Ky., 507 S.W.2d 156, 157 (1974), that the first court in which a divorce action was commenced is “the proper court to determine the factual issue of venue.”

      . It was the opinion of the Todd Circuit Court that the precipitous circumstances of Phyllis’ departure from the home in Hopkinsville on the night of May 10, 1976, were such that her failure to take with her at that time a “substantial portion of her belongings” was not a dis-positive impediment to a transfer of residence under the rationale of Sebastian v. Turner, Ky., 320 S.W.2d 794, 795 (1959). To that we might add the observation that regardless of its being listed in Sebastian as in the nature of a sine qua non, the removal or nonremoval of one’s belongings can amount to no more than evidence of intent.


author: CLEMENS, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Gerald JONES, Appellant.
    No. 36117.
    Missouri Court of Appeals, St. Louis District, Division Two.
    March 11, 1975.
    Opinion Modified on Court’s Own Motion, March 25, 1975.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Asst. Circuit Atty., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, Michael C. Horn, James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

Defendant Gerald Jones was tried and convicted of first-degree robbery and sentenced to five years’ imprisonment. On appeal, he contends the trial court erred in permitting the State to use certain testimony contrary to a pre-trial stipulation. We agree and reverse.

Before trial, the State stipulated that unless Jones testified to the contrary, the State would not use an incriminatory statement he had made to police after his arrest.

The State’s evidence: Defendant entered Arby’s Restaurant with a group of boys and approached the cash register, where defendant brandished a pocket knife at a restaurant employee. Shortly after the group ran from the restaurant with money from the register, police arrested defendant and returned him to Arby’s where the employee identified him.

On cross examination the employee testified he had also identified defendant at a lineup, when, according to other evidence, there had been no such lineup. The State then claimed surprise and renounced its stipulation. Over defendant’s objection, the State elicited police testimony that defendant had admitted being with the group at Arby’s. Defendant abided by the pre-trial stipulation and did not testify.

In attempting to justify its use of defendant’s statement, the State contends a trial court may relieve parties from adhering to stipulations if there is no ensuing prejudice to the opposite party, and if it would be inequitable to hold the parties to their agreement. Ann., 161 ALR 1161, 1185. But here defendant was prejudiced by the State’s retraction of its stipulation since without defendant’s statement, the sole testimony placing him at the robbery site was that of the employee. The fact that the employee’s testimony about the lineup may have been contradicted did not discharge the State from its stipulation. As the court said in State v. Fields, 434 S.W.2d 507[1-3] (Mo.1968), where the parties had stipulated as to the admission of certain evidence: “It would be almost unthinkable to permit defendant now to reverse his position ... for the sole reason that the results were not favorable to him. . . .”

The court in Landers v. Smith, 379 S.W.2d 884[7-9] (Mo.App.1964), correctly stated Missouri’s law: “A stipulation is a ‘proceeding in court, under the court’s supervision,’ and is binding upon the parties with ‘whatever force and effect a proceeding in court may have’ until it is attacked or set aside. A stipulation should be interpreted in view of the result which the parties were attempting to accomplish.”

Unless it is shown that a stipulation does not express the parties’ mutual intention, “a stipulation relating to some interest of the party which is wholly under his control, and in no way affects the procedure of the cause, is binding upon, and cannot be controlled by, the court.” Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159 (1921).

The stipulation here neither concerned procedural statutes nor altered trial procedure. Nor was there evidence the stipulation was obtained by fraud, duress, or mistake. The trial court was therefore bound by the agreement, Pierson v. Allen, 409 S.W.2d 127[3-5] (Mo.1966), and erred to defendant’s prejudice in permitting the State to introduce evidence contrary to its stipulation.

The judgment is reversed and cause remanded for a new trial.

KELLY and STEWART, JJ., concur.


author: FLANIGAN, Judge.

text:
    Albert Lee SPRINGS, Respondent, v. Clarence E. CANTRELL and Mary B. Cantrell, Appellants.
    No. 10096.
    Missouri Court of Appeals, Springfield District.
    July 16, 1976.

      Robert A. Dempster, Joseph P. Fuchs, Dempster, Yokley, Fuchs & Barkett, Sike-ston, for appellants.
    Kenneth L. Dement, Sikeston, for respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action to quiet title to certain real estate in Scott County, Missouri, formerly used as a railroad right of way. In 1970 the railroad abandoned the right of way by a formal disclaimer. The abandoned right of way ran north and south and was 100 feet wide. Plaintiff Albert Lee Springs owns land lying immediately east of the right of way. West of the right of way, and adjoining it, is Scott County Highway Z which also runs north and south. West of Highway Z, and adjoining it, is the land of the defendants Clarence E. Cantrell and Mary B. Cantrell.

The case was submitted to the trial court on stipulated facts. Both plaintiff and defendants claim the ownership of all the abandoned right of way lying between their respective lands.

The judgment of the trial court included the following: “The [land] of the defendants does not abut the right of way. Route Z separates the land of defendants from the right of way. The property owned by the plaintiff does abut the railroad right of way.”

The trial court decreed that title to the disputed area was in plaintiff and that defendants had no interest therein. Defendants appeal.

For the purposes of this opinion the lands involved are designated, respectively, Tract A, Tract B, Tract C, and Tract D. From west to east they lie in this order: Tract A (defendants’ land), Tract B (County Highway Z), Tract C (the abandoned railroad right of way), and Tract D (plaintiff’s land).

Tract A is irregular in shape but that portion of it which is involved here has a north-south measurement of 208¾ feet. The width of Tract B does not clearly appear, although it may be 75 feet. Tract C is 100 feet wide. Tract D is in the form of a square, each side being 208¾ feet long. Tracts A, B, C, and D have a common southern boundary.

Thus the area in dispute, Tract C, has an east-west measurement of 100 feet and a north-south measurement of 208¾ feet.

The following steps in the history of the title to the tracts are germane:

1. Late 1800’s: While all four tracts were in common ownership, Tract C became the railroad right of way. The underlying fee to Tract C remained in the common owner, subject of course to the burden of the right of way use.

2. 1917: Plaintiff’s predecessor acquired title to Tract D. The deed recited that the west boundary of Tract D was the east boundary of Tract C.

3. 1935: Defendants acquired title to Tracts A and B. The deed recited that the west boundary of Tract C was the east boundary of the land conveyed.

4. 1938: The State of Missouri acquired Tract B for highway purposes. The state obtained deeds from defendants and from plaintiff’s predecessor. The descriptions in the two deeds cannot be traced, with information contained in the record, so as to disclose what portion, if any, of Tract B was covered by the deed from plaintiff’s predecessor. There is no showing, however, that plaintiff’s predecessor (or plaintiff) ever claimed any interest in Tract B.

5. 1946: Plaintiff acquired title to Tract D.

6. 1970: The railroad abandoned Tract C and disclaimed all title and interest therein.

Although under circumstances not present here a railroad may acquire the fee simple interest in land, the railroad’s interest in Tract C was that of a right of way only. That interest, for convenience, may be termed an easement. When that easement was created, the underlying fee to Tract C remained in the common owner (see Step 1 of the title history).

If, at the time Tract C was abandoned by the railroad, one person had remained the owner of Tracts A, B, and D, that person would have remained the owner of Tract C, free of the burden of the railroad right of way. This would be true because the title, the fee, to Tract C would have “rested and continued” in the common owner and technically there would have been no reversion of title, title having never left the common owner. There was merely an elimination of the burden of the railroad’s use of the right of way.

But, as the title history shows, Tracts A, B and D were not held in common ownership at the time the railroad right of way was abandoned in 1970. In 1935 defendants acquired title to Tracts A and B. In 1946 plaintiff acquired title to Tract D. For the moment this court lays aside the fact that in 1938 Tract B became burdened with a highway easement.

If Tract B had not become burdened with the highway easement, upon the abandonment of the railroad right of way in Tract C, defendants would remain the owners in fee of the west one-half of Tract C and plaintiff would remain the owner in fee of the east one-half of Tract C.

This is true for the reason that in 1935, when defendants acquired title to Tracts A and B, and in 1946, when plaintiff acquired title to Tract D, there was an existing railroad right of way on Tract C and there was nothing in the deed to defendants or in the deed to plaintiff which showed any intention on behalf of the grantor to retain the fee in Tract C. This result obtains even though the description of Tracts A and B, contained in the 1935 deed to defendants, and the description of Tract D, contained in the 1946 deed to plaintiff, was by metes and bounds. This result also obtains even though, as the judgment of the trial court pointed out, one of the deeds in defendants’ chain of title to Tracts A and B contained language, in the description of the land conveyed, to this effect: “Except . . . whatever has been consumed by the [railroad] right of way.” The latter language was “a reservation of the easement only and not an exception of the fee to the strip and the fee passes by the deed.”

Is the foregoing result changed by reason of the fact that in 1938 Tract B became burdened with a highway easement? The question must be answered in the negative.

The trial court stated, and the fact is, that County Highway Z (Tract B) lies between Tract A (defendants’ land) and Tract C (the abandoned railroad right of way).

However, defendants since 1935 have held the fee interest in Tracts A and B. It is true that in 1938 Tract B became subject to the highway easement but the underlying fee remained in defendants. Thus, when Tract C was abandoned by the railroad, defendants were, and since 1935 had been, owners of the land adjoining Tract C on the west and remained the owners in fee of the west one-half of Tract C. Abandonment by the railroad merely eliminated the burden of its prior use of Tract C.

In State v. Jacob, 260 S.W.2d 22 (Mo.1953), a condemnation proceeding, title to a strip of land was involved. The strip was an abandoned railroad right of way. The Highway Department had obtained quit claim deeds from certain “lot owners.” The land of the lot owners was separated from the abandoned railroad right of way by St. Charles Avenue.

The court held that the lot owners were the owners of the fee in the abandoned railroad right of way, and thus right of way deeds from them to the Highway Commission gave the latter a valid easement.

At p. 24 the court said: “. . . The law in this state is that when Home Heights Company [the lot owners’ grantor] conveyed the lots north of St. Charles Avenue to the [lot owners], it being the owner of the fee upon which the avenue lay, its deeds also conveyed the fee to St. Charles Avenue, subject to the easement for street purposes . . . And the lot owners, having thus acquired from Home Heights Company the fee to the land occupied by St. Charles Avenue, by operation of law became the owners in fee of the right of way strip which abutted St. Charles Avenue. In other words, the deeds from Home Heights Company to the lot owners on the north of both the right of way strip and St. Charles Avenue also conveyed title in fee to both the strip and the avenue, subject to the respective easements in each; and upon abandonment of the strip for railroad purposes, the fee, then resting in the lot owners, was freed of the serviency of the easement.” (Emphasis added) To similar effect see State v. Jacob, 244 S.W.2d 7 (1951); Bay v. Stout Sign Co., 301 S.W.2d 786, 789 (Mo.1957); Horn v. Muckerman, 307 S.W.2d 482 (Mo.1957); St. Louis County v. Delbet Inv. Co., 469 S.W.2d 951 (Mo.App.1971).

The trial court should have decreed that defendants are the owners in fee of the west one-half of Tract C and plaintiff is the owner in fee of the east one-half of Tract C.

The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

All concur.

      . Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666, 668[1] (Mo.1969).

      . “The term ‘easement’ as applied to the interest in land which a railroad acquires for right of way and railroad purposes is a term of convenience. The term is not used in its technical and limited sense. It has been referred to as a special, peculiar interest subject to its own rules. In some respects the interest partakes of the nature of a corporeal estate. . . . However, in deciding the question before us, we do employ the term ‘easement’ in its accepted sense to the extent that the fee in the land over which the easement is granted remains in the grantor and his heirs and assigns.” Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 654[11] (1941).

      . “Where an easement only is received by a railroad company, the same rule should apply to the lands used for railroad purposes and later abandoned as applies to a public highway. . . . If a highway is taken wholly off one man’s property and such highway is later vacated, the use of the land goes back to the original owner, or his grantees, freed from the public use or easement. It is in the absence of evidence to the contrary that the title to the fee is presumed to be in the abutting landowners and the title of each extends to the center of the way. This presumption may be rebutted by evidence to show that the entire way has been taken from the land of only one of the abutting owners.” Brown v. Weare, 152 S.W.2d 649, 654[14, 15] (1941). See also St. Louis County v. Delbet Inv. Co., 469 S.W.2d 951, 953[1-4] (Mo.App.1971).

      .“Of course the word ‘revert’ in its technical sense as dealing exclusively with titles should not be used in conjunction with an easement. It is a primary rule that in the grant of an easement no title passes but the title rests and continues in the holder of the servient estate so that when the easement ceases there can be no such thing as a reversion of title. In such an event the servient estate is merely freed from the burden of the use and any reversion is merely that of the use.” Brown v. Weare, 152 S.W.2d 649, 655[16] (1941).

      . The following language appears in Neil v. Independent Realty Co., 317 Mo. 1235, 298 S.W. 363, 366 (1927): “If a highway be laid out through the land of A. and he afterwards conveys the land upon one side of the highway to B. and the land upon the other to C., without reservation, they become the owners of the fee in the soil of the highway equally, each owning to the center.” See also Brown v. Weare, 152 S.W.2d 649 (quoted in Footnote 3) and Koviak v. Union Electric Co., 442 S.W.2d 934, 937[3] (Mo.1969).
      “Owners of the land adjacent and contiguous to a railroad right of way become the owners thereof in fee when abandoned by the railroad.” State v. Jacob, 362 Mo. 781, 244 S.W.2d 7, 9[1] (1951). See also Schuermann Enterprises, Inc. v. St. Louis County, 436 S.W.2d 666, 668[2] (Mo.1969); St. Louis County v. Delbet Inv. Co., 469 S.W.2d 951, 953[1-4] (Mo.App.1971); St. Louis County v. St. Appalonia Corp., 471 S.W.2d 238 (Mo.1971).

      . For a discussion of the situation where land adjoining a highway is conveyed after the highway has been vacated, see Prewitt v. Whittaker, 432 S.W.2d 240, 244 (Mo.1968).

      . “A conveyance of platted lots or blocks adjoining an existing street, without mentioning the street in the deed, carries to the grantee the fee simple title to the center of the street (or to the far side if the original grantor contributed all of the street to public use) . . . The presumption is that the grantor did not intend to withhold any interest in the street or highway. . . The presumption may be overcome . but it must be overcome by something stated in the deed which shows distinctly an intention to withhold an interest in the street.” Prewitt v. Whittaker, 432 S.W.2d 240, 243[2] (Mo.1968). See also St. Louis County v. St. Appalonia Corp., 471 S.W.2d 238, 243[2] (Mo.1971).

      . . . [U]pon abandonment the title to the center of the road or right-of-way is presumed to be in each of the abutting landowners, in the absence of evidence showing clearly and convincingly an intention to the contrary. The application of the rule was not affected by the fact that the description in plaintiffs’ deed was by metes and bounds.” St. Louis County v. St. Appalonia Corp., 471 S.W.2d 238, 243 (Mo.1971); See also Koviak v. Union Electric Co., 442 S.W.2d 934 (Mo.1969).

      . Gill on Missouri Titles (4th Ed.) Vol. 1, § 163, p. 146. See Carter v. Foster, 145 Mo. 383, 47 S.W. 6 (1898); Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983 (1933); Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 656[21] (1941).


text:
    STATE of Missouri, Plaintiff-Respondent, v. Jimmy Frank JOHNSON, Defendant-Appellant.
    No. 10257.
    Missouri Court of Appeals, Springfield District.
    July 16, 1976.
    Daniel T. Wade, Ava, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for appellant-respondent.
   PER CURIAM.

Appellant Jimmy Frank Johnson was convicted by a Douglas County jury of first-degree burglary which assessed punishment at five years. After appellant’s timely motion for new trial was overruled, the trial court granted allocution and entered judgment on January 12, 1976.

The clerk of this court received an “Amended Notice of Appeal” on January 22, 1976, together with a partial docket fee. On the same day, the clerk notified all parties of the inadequate fee. The full docket fee was received by this court on January 26, 1976.

Rules 28.03 and 81.04 require that a notice of appeal must be filed within ten days after the judgment becomes final to be effective. Secondly, there can be no valid filing of a notice of appeal until the docket fee has been paid or waived. State v. Worl, 531 S.W.2d 294, 295[2] (Mo.App.1975). The last day to file the notice of appeal was January 22, 1976, and subsequent receipt of the docket fee does not bestow jurisdiction in this court to entertain the appeal.

Appellant has not sought a special order of this court to file a notice of appeal out of time pursuant to Rule 28.07.

The appeal is dismissed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Olva McCOY et al., Plaintiffs-Respondents, v. R. B. POTASHNICK CONSTRUCTION COMPANY, a corporation, Defendant-Appellant.
    No. 9957.

    Missouri Court of Appeals, Springfield District.
    July 16, 1976.
    James E. Reeves, Ward & Reeves, Ca-ruthersville, for plaintiffs-respondents.
    Manuel Drumm, Drumm & Stamp, Sike-ston, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

In this court-tried case for crop loss to plaintiffs by reason of the defendant’s obstruction of a natural watercourse, the Circuit Court of New Madrid County found the issues in favor of the plaintiffs and awarded them damages. In this appeal the defendant contends there was no evidence he was guilty of a trespass, there was no evidence he was negligent, and the award of damages exceeded the prayer of plaintiffs’ petition. We affirm.

Defendant, under a contract with the State Highway Commission for a proposed highway bridge approach, constructed an earth embankment across a natural watercourse which provided drainage for surface and river overflow waters on lands owned and rented by plaintiffs. The watercourse, with a definite and visible channel and sides, ran from near the center of plaintiffs’ farm in a southerly direction and discharged some distance away into the Mississippi River.

Defendant constructed the embankment in 1972 by pumping silt and soil from the nearby river. The embankment crossed the natural watercourse at the south end of the plaintiffs’ land. Adjacent to the embankment the defendant constructed a service road and dug a ditch alongside the road. He installed a metal culvert and concrete box to afford drainage under the service road and through the embankment. The culvert and box were located near the center of the natural watercourse.

Although plaintiffs’ land is what is commonly referred to as “overflow lands”, crops had never been lost or failed to be planted because of water. The land could be cultivated in seven to ten days after having been covered with water and drained via the watercourse.

In early 1973 the river overflowed plaintiffs’ farm, and when it returned to its banks, the embankment had washed and shifted some to the south. Silt and soil from the embankment filled and obstructed the artificial drains [culvert and box], as well as the natural watercourse. Waters on the plaintiffs’ farm were impounded by reason of this obstruction and could not drain because there was no other outlet. This condition remained unchanged from early July until sometime in September when defendant, following a re-negotiation of his contract with the Highway Commission, opened up the watercourse.

The scope of our review in this jury-waived case is governed by Rule 73.01, V.A. M.R., as delineated by our Supreme Court in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Thus, the judgment is to be affirmed (1) unless there is no substantial evidence to support it, (2) unless it is against the weight of the evidence, (3) unless it erroneously declares the law, or (4) unless it erroneously applies the law.

We have read the transcript in its entirety and viewed the exhibits filed with us. We are of the opinion that there is substantial evidence to support the judgment of the lower court. It is beyond question that the embankment was erected across the natural watercourse and its resultant erosion and shifting deposited silt and soil into the natural drainway, blocking and obstructing it in such a fashion that waters were impounded on plaintiffs’ farm and thereby prevented the lands from being planted during the 1973 crop year. The amount of damages awarded plaintiffs is supported by the evidence heard, without objection, by the trial court and did not exceed the total amount of damages claimed by plaintiffs.

The trial court correctly applied the law as set forth in our recent opinion of Dudley Special Road District of Stoddard County v. Harrison, 517 S.W.2d 170 (Mo.App.1974). That case and others cited therein declare that whether the impounding of waters is intentional or accidental, and whether the overflow is caused by negligence or without negligence, the agency causing the overflow of a natural watercourse to the damage of adjacent property owners is liable for its misfeasance in an action of trespass.

We need not undertake to decide whether the defendant was also guilty of actionable negligence in failing and refusing to provide an outlet for the impounded waters while he was negotiating with the Highway Commission for additional compensation.

We conclude that a detailed opinion would have no precedential value and affirm the trial court’s judgment pursuant to Rule 84.16(b).

All concur.


text:
    Walter Eugene MORSE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10154.
    Missouri Court of Appeals, Springfield District.
    July 19, 1976.
    David G. Neal, Eminence, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Chief Judge.

This is a post-conviction proceeding under Rule 27.26, V.A.M.R., to vacate a 1973 sentence. The trial court appointed counsel, conducted an evidentiary hearing, and denied appellant’s motion. We affirm.

The record reflects that is appellant’s second motion to vacate the seven year sentence and judgment he received for felonious stealing. His present motion acknowledges his earlier motion but he avers his initial motion should be ignored because it was improperly drafted without legal assistance.

Paragraph (d) of Rule 27.26 prohibits a second or successive motion “. [Wjhere the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion . . . .” This paragraph further places a burden on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.

Appellant’s initial motion was filed March 25, 1975, and, inter alia, complained of his trial counsel and the fact a subpoena for a material defense witness [David Of-futt] was withdrawn. The trial court dismissed the motion on March 26, 1975, and no appeal was taken from the judgment.

The present motion was filed May 21, 1975. It alleges appellant’s trial attorney was ineffective because of the latter’s failure to investigate the case or secure the presence of an important defense witness [David Offutt] and appellant was denied compulsory process for obtaining witnesses in his favor.

We are of the opinion that appellant’s instant motion falls squarely within the prohibition contained in paragraph (d) of Rule 27.26 and is a second or successive motion. Appellant exhausted his remedy under Rule 27.26 when his prior motion, based upon the same grounds as his present motion, was overruled and he did not appeal. Ivy v. State, 509 S.W.2d 148 (Mo.App.1974). Furthermore, if it be assumed that the present grounds are “new”, they could have been raised in appellant’s prior motion to vacate.

The judgment is affirmed.

All concur.

      . Affirmed on direct appeal in State v. Morse, 514 S.W.2d 375 (Mo.App.1974).