author: McCLOUD, Chief Justice.

text:
    Elizabeth Doss BLANTON et al., v. Martha BRUCE et al.
    No. 11-84-159-CV.
    Court of Appeals of Texas, Eastland.
    April 4, 1985.
    Rehearing Denied May 2, 1985.

      Virgil T. Seaberry, Jr., Turner, Seaberry & Warford, Eastland, James V. Roberts, Bonney, Wade & Stripling, Dallas, for appellants.
    William G. Thompson, Thompson & Cook, Breckenridge, Frank L. Jennings, Jennings, Dies, Turner & Knight, Graham, Richard J. Roach, Ridge Oil Co. (Inter-venor), Breckenridge, for appellees.
   McCLOUD, Chief Justice.

This is a declaratory judgment case. At issue is the ownership of a ¾ mineral interest in the Southwest lk of Section 124, HT & B Ry. Company Survey in Stephens County. The trial court found that the “Bruces” own a V2 mineral interest in the land in question and the “Blantons” own a ¼ mineral interest. The court held that the “Hudson Group” owns no mineral interest in the Southwest lk of Section 124, HT & B Ry. Company Survey. The Hudson Group and the Blantons appeal. We affirm.

Prior to April 24, 1914, R.H. Frost and wife, M.A.E. Frost, owned all of the surface and mineral estate in the Southwest ¼ of Section 124, HT & B Ry. Company Survey in Stephens County. On April 24, 1914, the Frosts conveyed to George Beggs a V4 mineral interest in the Southwest of Section 124, HT & B Ry. Company Survey. This conveyance and this mineral interest are not in issue. The question concerns the Frosts’ remaining ¾ mineral interest after the conveyance to George Beggs.

Hudson Group’s Claim

The Hudson Group claims to own a ¼ mineral interest in the Southwest ¼ of Section 124, “HT & B” Ry. Company Survey through a 1919 deed which describes the property conveyed as the Southwest of Section 124, “T & NO” Ry. Company Survey.

On May 12, 1919, R.H. Frost and wife, M.A.E. Frost, executed a deed to W.C. Barnes and J.E. Barnes, Jr., purporting to convey a ¼ mineral interest in the Southwest ¼ of Section 124, “T & NO” Ry. Company Survey in Stephens County. There is no Section 124 in the “T & NO” Ry. Company Survey in Stephens County. On June 7, 1919, W.C. Barnes and J.E. Barnes, Jr. executed a deed to Walter B. Scott purporting to convey a ¼ mineral interest in the Southwest lk of Section 124, “T & P” Ry. Company Survey. Thereafter, in the chain of title through which the Hudson Group claims the property, the survey is described as the “T & P” Ry. Company Survey. On May 26, 1981, Scott W. Hudson and George Beggs, III, Successor Co-Trustees, executed a “correction deed” to Eastland Energy, Inc. This correction deed, describing the property conveyed as a ¼ mineral interest in the SW/4 of Section 124, “HT & B” Ry. Survey, states that it was to correct a deed dated December 30, 1980, wherein the survey had been described as the “T & P” Ry. Co. Survey. East-land Energy, Inc. executed deeds to the Hudson Group on April 12, 1982, purporting to convey a ¼ mineral interest in the SW/4 of Section 124, “HT & B” Ry. Co. Survey. The correction deed dated May 26, 1981, is the first time that the property in issue appeared in the Hudson Group’s chain of title. Prior to that date, the survey is described as either the “T & NO” or “T & P.”

In their first amended counterclaim, the Hudson Group alleged that all references to surveys in their chain of title other than “HT & B” Ry. Survey resulted from a “mutual mistake”; they sought reformation of the deeds. The Hudson Group did not allege ambiguity, either patent or latent.

The trial court made numerous findings of fact supporting its conclusions that the Frost-Barnes deed is unambiguous, that there was no mutual mistake, and that the Hudson Group’s claim is barred by limitations and laches. These findings of fact are not challenged. Therefore, they are binding and conclusive. City of Fort Worth v. Bewley, 612 S.W.2d 257 (Tex.Civ.App.—Eastland 1981, writ ref’d n.r.e.). The trial court’s conclusions of law based upon these unchallenged findings of fact are not attacked.

The Hudson Group failed to prove or secure findings of fact that the legal title holders were not innocent purchasers. Amason v. Woodman, 498 S.W.2d 142 (Tex.1973); Teagarden v. R.B. Godley Lumber Co., 154 S.W. 973 (Tex.1913); 4 LANGE, LAND TITLES sec. 335 (Texas Practice 1961).

Furthermore, the cases cited by the Hudson Group involve deeds containing insufficient descriptions, but sufficient reference to other identifiable instruments for description. These cases are not in point. The Frost-Barnes deed contains a sufficient description on its face. The reference in the Frost-Barnes deed was that the tract was subject to an oil and gas lease “executed on the _ day of _ 191_” by the grantors to T.P. Coal Company. There is no indication that the reference was made for descriptive purposes. Furthermore, the reference did not sufficiently identify the oil and gas lease. See Smith v. Sorrelle, 126 Tex. 353, 87 S.W.2d 703 (1935).

The Hudson Group’s points of error are overruled. We hold that the trial court correctly held that the Hudson Group owns no mineral interest in the property in controversy.

Blantons’ Claim Against Bruces

The controversy between the Bruces and Blantons concerns the effect of a deed dated September 10, 1934, signed by Fay Frost Oldham, individually and as administrator of the estate of M.A.E. Frost, deceased, to Frank Sparks. The deed recites:

(F)or and in consideration of the sum of $10.00 and other valuable consideration to me paid by Frank Sparks, receipt of which is hereby acknowledged, have granted, sold and conveyed and by these presents do grant, sell and convey unto the said Frank Sparks, of Eastland County, Texas, all that tract of land lying and situated in Stephens County, Texas, and described as the Southwest Quarter of Survey No. 124, H.T. & B. Ry. Co. land of said county, containing 160 acres more or less. It is distinctly understood and agreed, however, that the grantee herein assumes the payment of all back taxes due against said land, and that the grant- or herein, Mrs. Fay Frost Oldham, reserves for herself, in her own separate right, and does not hereby convey, an undivided one-half (½) of all oil, gas and other minerals in and under said land, and of all the royalties incident thereto, and with such reservation to have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, except as above stated, unto the said Frank Sparks, his heirs and assigns forever.

At the time of this deed, the grantor owned an undivided ¾ mineral interest. The issue is whether the grantee, Sparks, through whom the Bruces acquired title, received a ½ mineral interest or only a Vi mineral interest through the Oldham-Sparks deed. The trial court held that Sparks received a V2 mineral interest. We agree.

The question is whether the rule announced in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940), applies to the Oldham-Sparks deed. The Blantons argue that Duhig is not controlling because the deed does not contain a “general warranty.” The deed uses the words “granted, sold and conveyed ... and by these presents do grant, sell and convey.” It is not a quitclaim deed. The grantor in the deed purports to convey the property described. The deed is a deed of conveyance without an expressed warranty-

In Duhig, the court held that a grantor in a “general warranty” deed purporting to convey a fractional mineral interest is “es-topped” to claim title in a reserved fractional mineral interest when to do so would, in effect, breach his warranty as to the title and interest the deed purports to convey. The court stated that its decision was based on the “application of a well settled principle of estoppel.” The cases cited by the court, by analogy, involve the “well established rule of estoppel against the assertion by a grantor of an after-acquired title in contradiction of his covenant of warranty.” See McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341 (1957). Duhig must be viewed in the context of its facts. There, with the deed containing a “general warranty,” the court cites cases which use the covenant of warranty as a vehicle to support the passage of after-acquired title. See Hemingway, After-Acquired Title in Texas-Part I, 20 Sw.L.J. 97 (1966). The court does not say that the announced rule will apply only when the deed contains a “general warranty.” In Lindsay v. Freeman, 18 S.W. 727 (1892), the Supreme Court held that covenants of warranty are not necessary for the passage of after-acquired title by estoppel if the conveyance purports to convey a definite estate. The court said:

If the grantors the Lowery sisters did not possess the estate which the deed purports to convey, nevertheless, as it was their clear intention, shown by the deed, to convey a fee-simple, they and their privies, whether in blood in an estate or in law, are estopped to claim by an after-acquired title though the deed contains no warranty. The language in the deed whereby the grantors convey the fee-simple estate in the land constitutes a recital which imports an assertion by them that they are the owners in fee-simple of the land; and, having thus
asserted the fact of their ownership, the grantors are estopped to deny such fact.
******
(I)n the ease of Hannon v. Christopher, 34 N.J.Eq. 465, the court states that “the fair result of a more recent case would seem to be that whenever the terms of the deed, or of the covenants which it contains, clearly show that it was meant to convey an absolute and indefeasible title, and not merely that which the grantor had at the time, it will bind and pass every estate or interest which may vest in him subsequent to its execution, whether the warranty which it contains be general or special and although it may contain no warranty whatever.” The estoppel does not depend upon the obligation of the covenant of warranty, although the books sometimes loosely say so. It depends on good faith, right conscience, fair dealing, and sound justice. When a person competent to act has solemnly made a deed conveying not merely his interest had at the time, but a fee-simple estate, he shall not be allowed to gainsay it, to the injury of those whom he has misled thereby. (Emphasis added)

Commissioner Smedley, who wrote Duhig, subsequently cited Linday v. Freeman, supra, as authority in Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (Comm’n App.1942 opinion adopted). The. court said:

The estoppel in the after-acquired title cases arises from the assertion of ownership made by the grantor in the covenant of warranty, express or implied, or in other recitals in the deed. Such assertion is a representation that the grantor owns the land or the estate or interest to which it.relates, and having thus represented the fact of ownership, the grant- or is estopped to deny that fact. Lindsay v. Freeman, 83 Tex. 259, 264, 265, 18 S.W. 727; United States Nat. Bank v. Miller, 122 Or. 285, 258 P. 205, 58 A.L.R. 339. (Emphasis added)

We have found only one case, American Republics Corporation v. Houston Oil Co. of Texas, 173 F.2d 728 (5th Cir.), cert. denied 338 U.S. 858, 70 S.Ct. 101, 94 L.Ed. 526 (1949), which, while applying Texas Law, fully discusses the application of the Duhig rule to a conveyance not containing a “general warranty.” The court noted that the Supreme Court of Texas in Lindsay v. Freeman, supra, had early adopted the doctrine of estoppel by recitals in deeds, and that this adoption has never been departed from. In holding that the estoppel by deed rationale discussed in Du-hig was operative even though the deed did not contain a “general warranty,” the court said:

The district judge seems to have been of the opinion that because the deed contained a covenant not of general, but of special, warranty, that this in some way released grantor from the estoppel which the recitations of ownership in its deed would have otherwise imposed. This will not do. A deed with special warranty, indeed, as we have seen, a deed with no warranty at all, as completely estops the grantor from making a claim of title which would diminish the title of his grantee as would a deed with general warranty.
For, as we have seen, where the grant is based on an affirmation of ownership and is a conveyance of title as opposed to a chance of title, there is an effectual estoppel at once raised to assert title in diminution of the grant whether the covenant of warranty is general or special, or, indeed there is no covenant of warranty at all.
******

In Duhig’s case, as here, what is important and controlling is not whether grantor actually owned the title to the land it conveyed, but whether, in the deed, it asserted that it did, and undertook to convey it. Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290; Greene v. White, 137 Tex. 361, 153 S.W.2d 575, 136 A.L.R. 626.

Two leading authorities in the field of oil and gas law have suggested that the rule of estoppel by deed announced in Duhig should apply to a deed purporting to convey a definite interest without regard to the presence or scope of the warranty. HEMINGWAY, THE LAW OF OIL AND GAS, sec. 3.2, at 118 (2nd ed. 1983); Hemingway, After-Acquired Title in Texas-Part II, 20 Sw.L.J. 322 (1966); 1 H. WILLIAMS AND C. MYERS, OIL AND GAS LAW sec. 311.1, at 584.

The Bruces also argue that the Duhig rule is applicable because the Oldham-Sparks deed contains the words “grant” and “convey.” The statute ascribes the incidents of a “special warranty” deed to a deed purporting to “grant” and “convey.” It has been suggested that the Duhig rule should apply to such a deed where the grantor had previously conveyed a fractional mineral interest. Barber, Fractional Mineral Interests, 13 Sw.L.J. 320 at 332-333. Citing Morris v. Short, 151 S.W. 633 (Tex.Civ.App.—Texarkana 1912, writ ref d), the author states that arguably the word “incumbrance” in Article 1297 would embrace an outstanding mineral interest which does not result from a prior conveyance by the grantor. The court, however, in City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448 (1947), stated that the statutory covenant against “incumbrances” is separate and distinct from the warranty of title. The court added that “it is intended to protect the grantee against rights or interests in third persons, which while consistent with the fee being in the grantor, diminish the value of the estate conveyed.” TEX.PROP.CODE ANN. sec. 5.024 (Vernon 1984) (formerly TEX.REV.CIV.STAT. ANN. art. 1298) provides that an “encumbrance” includes “a tax, an assessment, and a lien on real property.” The court, in Scates v. Fohn, 59 S.W. 837 at 838 (Tex.Civ.App.1900, no writ), held that the statutory covenants now found in TEX.PROP. CODE ANN. sec. 5.023 (Vernon 1984) did not diminish the rule announced in Lindsay v. Freeman, supra. The court said:

The case of Lindsay v. Freeman, 83 Tex. 259, 18 S.W. 727, decides that an after-acquired title passes by such a deed; in other words, that if Henry Castro was living when Lorenzo made the conveyance to Clark, and he afterwards inherited any title thereto from his father, such title would pass by force of the deed. This is the settled law of this state, unless changed by article 633, Sayles’ Rev. St., enacted in 1879. We are of opinion that this article, which prescribes the covenants that shall attach to such a deed, does not change the rule laid down in Lindsay v. Freeman, for the reason that the rule does not depend on the covenants in the deed. It is a rule of estoppel. As stated in the opinion in that case (citing with approval from certain authorities): “The estoppel does not depend upon the obligation of the covenant of warranty, although the books sometimes loosely say so. It depends on good faith, right, conscience, fair dealing, and sound judgment....” If we treat the deed as containing these warranties, it would be, if anything, a stronger asseveration by the grantor than without them that the grantor owned the estate conveyed.

Our holding is not based upon the statutory covenants. We hold that the Duhig rule is applicable to the Oldham-Sparks deed because the deed purports to convey a definite interest in the property. Under Lindsay v. Freeman, supra, covenants of warranty are not necessary for the passage of after-acquired title by estoppel.

When the grantor executed the Oldham-Sparks deed, a ¼ mineral interest was outstanding. The deed purports to convey a V2 mineral interest and, at the same time, reserve a V2 mineral interest. Those claiming under the grantor (Blantons) are es-topped to assert any title to the reserved minerals until the grantee (Bruces) are made whole.

The court correctly held that the Bruces own a V2 mineral interest, and the Blantons a ¼ mineral interest in the property in question.

The judgment of the trial court is affirmed.

      . The parties herein referred to as the "Bruces” are: Martha Bruce, Virginia Bruce and Ernest-dean Bruce Wright.

      . The parties herein referred to as the "Blan-tons” are: Elizabeth Doss Blanton, Sallie Stapp, Betsy McHargue, Joseph Edwin Blanton (Individually and as Trustee under the Will of Thomas L. Blanton, Jr.), Louise Blanton, Edna Blan-ton, Thomas L. Blanton, III (as Trustee under the Will of Thomas L. Blanton, Jr.), and William W. Blanton (Individually and as Trustee under the Will of Thomas L. Blanton, Jr.).

      . The parties herein referred to as the "Hudson Group” are: Scott W. Hudson, George C. Beggs, III and Fenton J. Baker, Jr.

      . The intervenor, Ridge Oil Company, who is producing oil and/or gas from the property has not appealed.

      . See Hemingway, After-Acquired Title in Texas-Part I, 20 Sw.L.J. 97 at 117 (1966); Dickenson, The Doctrine of After-Acquired Title, 11 Sw.L.J. 217 at 219 (1957).

      . TEX.REV.CIV.STAT.ANN. art. 1297 (1925) (which was in effect at the time of the conveyance), now found in TEX.PROP.CODE ANN. sec. 5.023 (Vernon 1984), provides:
      From the use of the word “grant" or "convey,” in any conveyance by which an estate of inheritance or fee simple is to be passed, the following covenants, and none other, on the part of the grantor for himself and his heirs to the grantee, his heirs or assigns, are implied, unless restrained by express terms contained in such conveyance:
      1. That previous to the time of the execution of such conveyance the grantor has not conveyed the same estate or any right, title or interest therein, to any person other than the grantee.
      2. That such estate is at the time of the execution of such conveyance free from in-cumbrances.
      Such covenants may be sued upon in the same manner as if they had been expressly inserted in the conveyance.


source: Caselaw Access Project

license: Public Domain

text:
    COMANCHE LAND AND CATTLE COMPANY, INC. v. Samuel Frank ADAMS et al.
    No. 11-84-177-CV.
    Court of Appeals of Texas, Eastland.
    April 4, 1985.
    Rehearing Denied May 2, 1985.
    Randall Schmidt, Brown, Herman, Scott, Dean & Miles, Fort Worth, for appellant.
    Lynn Nabers, Austin, Jim Parker, Comanche, for appellees.
   McCLOUD, Chief Justice.

The issue is whether the owner of the leasing rights to a mineral estate has violated a duty owed to the owner of a term nonparticipating royalty interest.

In a deed dated February 17, 1964, the grantors conveyed approximately 180 acres of land to Comanche Land and Cattle Company, Inc. The deed contains a royalty reservation which provides:

The grantors herein reserve unto themselves a one-half royalty interest on all royalties that might be paid on oil, gas and other mineral leases that might be made on said land for a period of twenty years from the date of this deed and at which time said royalty interest will pass to the then owners of the land. (Emphasis added)

On March 13, 1976, Comanche Land and Cattle Company, Inc., owner of all mineral rights in the 180-acre tract, except the above reserved term royalty interest, entered into a joint venture “oil and gas mining agreement” with Corpening Enterprises. Pursuant to the agreement, two producing gas wells were completed on the tract.

The trial court held that Comanche, which had the exclusive right to enter into oil and gas leases on the property, is liable to plaintiffs for one-half of a one-eighth royalty on the gas produced from the 180-acre tract. The trial court entered judgment in favor of plaintiffs for $37,308.89 plus interest and attorney’s fees. Comanche Land and Cattle Company, Inc. appeals. We affirm.

The thrust of Comanche’s argument is that the joint venture oil and gas mining agreement is not a “lease,” and that the reservation only reserves an interest in royalties “that might be paid on oil, gas and other mineral leases.” Comanche also urges that it breached no duty owed to plaintiffs.

The Comanche-Corpening mining agreement obligated Corpening to drill an initial well on property other than the tract in issue. The agreement states that in the event the first well was successful, Corpen-ing would be obligated to drill the second well on the tract in question. The agreement provides:

If the first well is a “successful” well, this second well is obligatory. If the second well is completed as a producer, there will be a payout period to allow Corpening to recoup his actual cost of acquiring, drilling and equipping the well, plus operating costs of this second well paid by Corpening. During the payout period, Comanche will be a co-owner of the eight-eights f/sths) working interest (no royalty) to the extent of a fraction in which the numerator shall be Six Thousand One Hundred Ninety-Five Dollars ($6,195.00) — Twenty-Five Dollars ($25.00) times 247.8 — and the denominator shall be the actual cost of drilling and equipping the well. After payout, Comanche and Corpening Enterprises, its successors and assigns shall own the eight-eights (%ths) working interest equally as long as there is production from this tract. (Emphasis added)

The “mining agreement” expressly provides that during the payout period, Comanche will be a co-owner of the “eight-eights (%ths) working interest (no royalty).’’

We agree with Comanche that the mining agreement is not a “lease” and that it explicitly provides that there is “no royalty” payable pursuant to the agreement. This does not, however, relieve Comanche, owner of the executive right, of its duty of utmost good faith toward the owners of the royalty interest.

Our Supreme Court in the recent case of Manges v. Guerra, 673 S.W.2d 180 (Tex.1984), reaffirmed the rule that the duty of the executive (the one holding the right to enter into an oil and gas lease) arises from the relationship of the parties and not from the express or implied terms of the deed. The court stated:

The duty of utmost good faith owed by an executive has been settled since Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543, 545 (1937). That standard has been repeated in First National Bank of Snyder v. Evans, 169 S.W.2d 754, 757 (Tex.Civ.App.—Eastland 1943, writ ref'd); Kimsey v. Fore, 593 S.W.2d 107, 111 (Tex.Civ.App.—Beaumont 1980, writ ref'd n.r.e.); Portwood v. Buckalew, 521 S.W.2d 904, 911 (Tex.Civ.App. — Tyler 1975, writ ref’d n.r.e.); and Morriss v. First National Bank of Mission, 249 S.W.2d 269, 276 (Tex.Civ.App.—San Antonio 1952, writ ref d n.r.e.). The fiduciary duty arises from the relationship of the parties and not from the contract. See English v. Fischer, 660 S.W.2d 521, 524-25 (Tex.1983) (Spears, J., concurring). While a contract or deed may create the relationship, the duty of the executive arises from the relationship and not from express or implied terms of the contract or deed.

The evidence shows that before the mining agreement was signed, Comanche, through its president, had personal notice of the royalty reservation. There is evidence that Comanche could have entered into an oil and gas lease containing a one-eighth royalty provision.

The trial court concluded from the evidence that Comanche violated the duty of “utmost good faith.” Indeed, the mining agreement is unmistakably worded so as to preclude any royalty payment. Since there are no findings of fact, we must presume that the trial court found from the evidence that rather than exercising utmost good faith, the owner of the executive right purposely entered into an agreement that was calculated to defeat the rights of the royalty owners.

Plaintiffs, by cross-point, urge that we should reform the trial court’s judgment and award them damages of “one-half (V2) of one-half (½) of the net production” from the property. Any complaint which plaintiffs might have had has been waived because they did not except to the judgment, give notice of appeal, or in any other way inform the trial court that they were dissatisfied with the judgment entered. Western Construction Company v. Valero Transmission Company, 655 S.W.2d 251 (Tex.App.—Corpus Christi 1983, no writ).

The points and cross-point of error are overruled. The judgment of the trial court is affirmed.

      . The plaintiffs and cross-plaintiffs, hereinafter referred to only as plaintiffs, are the grantors and heirs of grantors in the deed: Samuel Frank Adams, Individually and as Administrator of the Estate of Tomie Lou Adams, Lem R. Carter, Johnnie Carter Norwood, Gene Carter, Charles Carter, Ruby Loftis, Steve Adams, Al-iene Carter, Larry L. Carter II, Brian N. Carter, Bruce A. Carter, Alice Carter, Bradley W. Carter, Barbara L. Henry, and Kathy McGallian.


author:
WINTERSHEIMER, Justice.
      LEIBSON, Justice,

text:
    COMMONWEALTH of Kentucky, Movant, v. Jeffrey Lisle VANOVER, Respondent.
    Supreme Court of Kentucky.
    March 21, 1985.
    As Corrected March 22, 1985.
    Rehearing Denied May 23, 1985.
    David L. Armstrong, Atty. Gen., David A. Smith, Asst. Atty. Gen., Frankfort, for movant.
    James P. Benassi, Public Advocate, Frankfort, for respondent.
   WINTERSHEIMER, Justice.

This appeal by the Commonwealth is from a decision of the Court of Appeals that statements given at the police post and jail by Vanover were the result of inculpa-tory statements made in a police cruiser and should not have been admitted into evidence.

The sole issue is whether the trial court committed reversible error in admitting the evidence of Vanover’s initial confession.

A Perry Circuit Court jury found Van-over guilty of second-degree burglary and theft by unlawful taking over $100, and sentenced him to a total of 6 years. On appeal, Vanover’s conviction was reversed, the Court of Appeals concluding that his constitutional rights were violated by the admission into evidence of an inculpatory statement made by him to a deputy sheriff.

On Sunday afternoon, July 11, 1982, a home was burglarized and Vanover was a suspect. Before being arrested later that afternoon, Vanover declined to make a statement to a sheriff’s deputy. At about 4:10 p.m. on the same day, a state police detective arrested Vanover and read him his Miranda rights. Vanover did not request counsel but he again declined to make any statement. There was no further questioning of Vanover at that time. In advising the accused of his rights, a written waiver form was read to him and signed by the defendant.

Thereafter, the detective again advised Vanover of a witness who said she had seen the accused with the gun near his home at about the time the police estimated he would have been there. Shortly thereafter, Deputy Sheriff Johnny Couch, who was a neighbor of the accused, joined Van-over in the police cruiser. The deputy again advised Vanover of his Miranda rights and told him, “If you did this it would be better if you just went ahead and told us because people have seen you.” Vanover then told the deputy where to find the stolen items. Later he gave two additional statements at the police post and at the jail, but those statements are directly connected with the first admission.

Vanover was convicted but the conviction was overturned by the Court of Appeals pursuant to its application of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

We reverse the decision of the Court of Appeals because the right to silence does not create an automatic indefinite prohibition on any further questioning.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court ruled that if an individual in custody indicates in any manner at any time prior to or during questioning that he wishes to remain silent, interrogation must stop because he has shown that he intends to exercise his Fifth Amendment privilege and any statement taken after that time is the product of compulsion.

In Michigan v. Mosley, supra, the U.S. Supreme Court held that once the right to silence was invoked, Miranda did not create a per se prohibition of indefinite duration on any further questioning.

Mosley, supra, states:

We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda whether his “right to cut-off questioning was scrupulously honored. A review of the circumstances leading to the Mosley confession reveals that his right to cut-off questioning was fully respected.

The Mosley case involved several factors leading to its result: 1) He was advised of his rights before the first interrogation. 2) The initial interrogation promptly ceased when he invoked his right to silence. 3) The arresting officer did not resume the questioning or attempt to persuade Mosley to reconsider. 4) After an interval of over two hours a different police officer resumed interrogation about the unrelated crime after advising Mosley of his rights again, and, 5) Mosley responded not to the questioning but instead to information about the case against him.

A comparison of the Mosley standards to this case indicates that: 1) Vanover was advised of his rights before the arresting officer asked if he had anything to say. 2) The arresting officer promptly stopped any questioning when Vanover declined to give a statement. 3) The arresting officer did not resume the questioning or attempt to persuade Vanover to reconsider his position. 4) After the interval of an undetermined period of time, a different policeman “questioned” Vanover after advising him of his rights again, and, 5) Vanover responded not to a question, but to a statement apprising him of the evidence in the case the police had just gathered against him.

Here, as in Mosley, the confession was more a product of the accused’s being confronted with the totality of available evidence rather than his will being undermined by repeated and continuous questioning. There is a strong argument that Deputy Couch’s inquiry would not amount to questioning under these circumstances. See Shadoan v. Commonwealth, Ky., 484 S.W.2d 842 (1972); Douglas v. Commonwealth, Ky., 586 S.W.2d 16 (1979). Vanover’s attempt to distinguish these cases is not convincing.

Creech v. Commonwealth, Ky., 412 S.W.2d 245 (1967), is not applicable because the circumstances here are not similar. Vanover was not immediately confronted in such a manner as to persistently wear down his resistance and make him change his mind.

The decision of the Court of Appeals is reversed and this case is remanded to them to consider the other alleged errors raised in the initial appeal.

GANT, STEPHENSON, VANCE and WINTERSHEIMER, JJ., concur.

LEIBSON, J., dissents by separate opinion.

STEPHENS, C.J., and AKER, J., join in this dissent.

LEIBSON, Justice,

dissenting.

The Court of Appeals reversed the judgment and remanded for a new trial because the trial court erroneously admitted as evidence the inculpatory statement made to the deputy sheriff in the police cruiser shortly after the respondent’s arrest, and two later statements which were conceded to be the fruit of the first statement. These statements should have been suppressed because the first statement was obtained by means constitutionally impermissible.

Commencing with a time shortly before arrest and continuing after arrest when he was put into a police car for transportation to jail, the respondent was questioned repeatedly. Altogether he was questioned four times, on each occasion by a different police officer, and with each new interrogation occurring almost immediately after cessation of the preceding one. He declined to make a statement on the first three occasions, and only confessed on the fourth occasion after a deputy sheriff whom he knew got into the police cruiser where he was being held and told him, “if [you] did this it would be better if you just went ahead and told us, because people have seen you.” Respondent then confessed and told the deputy where to find the stolen items.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that if an individual in custody indicates in any manner at any time before or during questioning that he wishes to remain silent, interrogation must stop because he has shown that he intends to exercise his Fifth Amendment privilege and any statement taken after that time is a product of compulsion.

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the United States Supreme Court refined the view expressed in Miranda. It held that the Miranda. requirement that police interrogation must cease when the person in custody indicated that he wished to remain silent did not create a per se proscription of indefinite duration against further questioning by any police officer at any time or place on any subject. But the admissibility of incriminating statements obtained after a person in custody has initially decided to remain silent depends on “whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” 423 U.S. at 104, 96 S.Ct. at 326.

The circumstances distinguishing Mosley' from Miranda do not exist here. In Mosley the defendant was arrested in connection with certain robberies. When he declined to discuss these robberies the police officer immediately ceased the interrogation and the defendant was then taken to a cell. More than two hours later, another police officer took the defendant to another place in the building, again advised him of his Miranda rights, and then questioned him concerning a murder unrelated to the prior interrogation. The court held the second interrogation was admissible because it had occurred after a significant time lapse, was directed solely to a different crime than those about which he had been previously questioned, and was conducted at another location in the building by another officer.

Michigan v. Mosley, as did Miranda, forbids continued questioning, or renewed questioning after a cessation of short duration, whether by the same or different police officers, regarding the same offense. It rules out “repeated rounds of questioning to undermine the will of the person being questioned.” 423 U.S. at 102, 96 S.Ct. at 325.

Here the respondent was a person of limited mentality, functioning in an intellectual range termed “borderline.” He was induced to incriminate himself shortly after he had invoked his right to remain silent and before any change in circumstances by pressure similar in kind to that deemed constitutionally impermissible in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). We are told in Miranda v. Arizona, supra, that such a statement must be considered “the product of compulsion, subtle or otherwise.” 384 U.S. at 474, 86 S.Ct. at 1627.

Further, this case falls squarely under our decision in Creech v. Commonwealth, Ky., 412 S.W.2d 245 (1967). There, as here, a mentally deficient defendant declined to testify, was immediately confronted with other testimony already acquired against him, and made an incriminating statement. We reversed, holding that the trial court should not admit such a statement.

The most recent United States Supreme Court case in point, Smith v. Illinois, 469 U.S. -, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) restates and reenforces by analogy the rule that once the right to remain silent has been invoked it is not waived by the accused’s willingness to incriminate himself at subsequent interrogation. When first questioned, Smith invoked his right to counsel during questioning, and then changed his mind. In holding the confession subsequently obtained should have been suppressed the United States Supreme Court stated:

“ ‘No authority, and no logic, permits the interrogator to proceed ... on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.’ ” 105 S.Ct. at 495.

Smith v. Illinois states in no uncertain terms that the United States Supreme Court has not retreated from the “ ‘bright-line rule’ that all questioning must cease after an accused requests counsel.” 105 S.Ct. at 494. By analogy, there is no reason for us to assume that the United States Supreme Court will retreat from the “bright-line rule” of Miranda and Mosley. Where, as here, the constitutional mandate as interpreted by the United States Supreme Court is clear, we continue duty bound to respect and uphold the lines drawn by the United States Supreme Court. Our Court of Appeals has done so. We should do no less.

STEPHENS, C.J., and AKER, J., join in this dissent.


author: WINTERSHEIMER, Justice. STEPHENSON, Justice,

text:
    DELTA AIR LINES, INC., Movant, v. COMMONWEALTH of Kentucky, REVENUE CABINET, Respondent.
    Supreme Court of Kentucky.
    May 2, 1985.

      Jackson W. White, Stoll, Keenon & Park, Lexington, Helene Z. Cohen, Atlanta, Ga., for movant.

      John A. Miller, Legal Services Section, Revenue Cabinet, Frankfort, for respondent.
   WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals which affirmed the decision of the circuit court and the Board of Tax Appeals on the question of whether fuel and food sold to and used by the airlines were taxable by Kentucky.

The issues presented are whether the Board of Tax Appeals and the reviewing courts failed to make a proper and comprehensive examination of the statutes and correctly interpreted the applicable law; whether the appropriate rules of statutory construction were applied to determine the legislative intent in the sales and use tax act; and whether the Kentucky sales tax program, as now interpreted, violates the Fourteenth Amendment rights of Delta to due process and equal protection of the law.

Delta is a common carrier certified to transport passengers and cargo in interstate commerce. Its routes include flights which enter and depart from Kentucky’s three major airports in Lexington, Louisville and Covington.

Shortly after the Kentucky General Assembly enacted a sales and use tax on retail sales and the consumption of personal property in 1960, the Revenue Department met with several airlines and developed a formula to calculate the tax to be paid by the airlines. The formula was based on the amount of fuel and meals purchased in Kentucky and consumed within the state’s borders. Delta paid the tax according to this formula for the next seventeen years. The Revenue Department, in 1979, indicated that it was discontinuing the use of the formula because it believed it was improper and that in the future Delta would be expected to pay tax on all fuel and food purchases made in Kentucky pursuant to KRS 139.200. No attempt was made by the state to recoup earlier taxes. Delta filed a suit for refund over this question and now challenges the application of the statute by the Revenue Cabinet.

The Board of Tax Appeals, the circuit court and the Court of Appeals upheld the assessment for sales and use taxes against Delta as to fuel purchases. The Court of Appeals remanded the part of the case involving food to the Board of Tax Appeals for a determination of fact questions. This Court granted discretionary review.

This Court affirms the decision of the Court of Appeals.

The meaning of KRS 139.200 is clear. It imposes a sales tax on all retail sales. KRS 139.210 provides for the collection of the tax from the consumer. The 1961 formula authorized by the Department was clearly contradictory to the plain meaning of the statute. There is no unfairness or illegality in imposing a uniform sales tax on fuel and food purchased in Kentucky by Delta. The same result would apply to any purchaser who does not have a statutory exemption. The statute and the new administrative plan adopted by the Department in 1979 is not an unreasonable burden on interstate commerce. If Delta pays the Kentucky sales tax on fuel it purchases here, it would not be subjected to any additional use taxes from any other jurisdiction whose air space it might use while consuming the fuel or other items of tangible personal property. Kentucky is not imposing any tax on items consumed over Kentucky which were purchased in other states. There is no double taxation.

There are statutory exemptions provided in KRS 139.470(5) and such application can be made by Delta to determine if it qualifies for such an exemption. The burden is on the airline to demonstrate its entitlement to an exemption. KRS 139.260.

The mere existence of other related sections and regulations concerning sales tax does not make KRS 139.200 ambiguous. KRS 139.260 creates a presumption to be used when the facts are not completely developed to support the imposition of a tax. There is no ambiguity or confusion because of KRS 139.470(1). If the revenue statute conflicts with the Kentucky or United States constitution, it is simply void, but it is not ambiguous.

A non-diseriminatory sales tax is not repugnant to the Commerce Clause of the Federal constitution, even though the item taxed may thereafter be used in interstate commerce. Eastern Air Transport, Inc. v. South Carolina Tax Commission, 285 U.S. 147, 52 S.Ct. 340, 76 L.Ed. 673 (1932). What is being taxed is the local transaction, the sale and use of fuel. For additional discussion, see, Annotation-State Taxes-Air Carriers-Validity, 31 L.Ed.2d 975.

Here the tax is simply a sales tax imposed on sales consummated in this state. The Kentucky sales tax is within the purview of Eastern Air Transport, supra, that a nondiscriminatory sales tax does not infringe on the Commerce Clause.

It should be noted that trucks and other motor common carriers pay the substantial equivalent of sales tax on their fuel purchases in Kentucky. Any motor carrier who fails to pay taxes levied under KRS Chapter 138 is subject to paying use tax on all fuel purchased in Kentucky pursuant to KRS 139.500(2).

Exemptions from taxation are generally disfavored and all doubts are resolved against an exemption. The law favors equality, uniformity and impartiality in taxation. 3 Sutherland, Statutory Construction § 66.09, at 207 (4th ed. 1974). Kentucky has followed this principle in Kentucky Dept, of Revenue v. Bomar, Ky., 486 S.W.2d 532, 533 (1972).

The broad discretion to legitimately classify various taxpayers has long been recognized. The argument by Delta that it must be exempted because railroads and barge lines have been exempted from paying sales tax on fuel is unconvincing. The classification is legitimate and does not violate Section 2 and Section 171 of the Kentucky constitution, nor does it impinge on the due process and equal protection clauses of the Federal constitution.

The standards for classifications under the Kentucky constitution are the same as those under the Fourteenth Amendment to the Federal constitution. Reynolds Metal Co. v. Martin, 269 Ky. 378, 107 S.W.2d 251, 260 (1937). A single standard can be applied to both the State and Federal constitutions in regard to classification for sales tax exemptions. See, Department of Revenue v. Spalding Laundry & Dry Cleaning Co., Ky., 436 S.W.2d 522, 524 (1968). This Court has determined that economic factors are valid considerations which the legislature may take into account in developing a legitimate tax classification. The legislature has a great freedom of classification and the presumption of validity can be overcome only by the most explicit demonstration that it is hostile and oppressive against particular persons and classes. Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590, 125 A.L.R. 1383 (1940).

Reynolds Metal Co., supra, indicates that the legislature may properly classify occupations for tax purposes based on the competitive environment in which they operate and the overall economic impact on the state economy. In that case the court endorsed an exemption for the banking industry because it was of critical importance to the total state economy.

The different tax treatment for airlines, truck lines, barge lines, bus lines and railroad lines can be justified by their different competitive environment and their different significance to the overall state economy. The railroads and barges are critical to the marketing of Kentucky coal. The exemption for barge and rail lines can be justified as a reasonable effort to maintain the viability of transportation systems which are necessary to the state’s economy and threatened by the great competitiveness of other forms of transportation. The courts cannot assume that the actions of the legislature are capricious and generally they are afforded the presumption of regularity. Taxation may be used to promote competitive conditions and to equalize economic advantage. See, Great Atlantic and Pacific Tea Company v. Grosjean, 301 U.S. 412 at 426, 57 S.Ct. 772 at 777, 81 L.Ed. 1193, 112 A.L.R. 293 (1937).

Certain inherent differences between various types of common carriers may be recognized by separate classification as to taxes so long as they are not totally arbitrary, and there has been no showing of a violation of equal protection. Senn Trucking Company v. Wasson, 280 S.C. 279, 312 S.E.2d 252 (1984), cert. den. — U.S. -, 104 S.Ct. 3537, 82 L.Ed.2d 841 (1984). This case involved a dispute between a trucking company and a railroad exemption.

A classification by the legislature should be affirmed unless it is positively shown that the classification is so arbitrary and capricious as to be hostile, oppressive and utterly devoid of rational basis. Delta did not make such a showing.

Although similarities can be found whereby airlines, railroads and barges could be uniformly classified, there are many dissimilarities. We must conclude that the legislature’s failure to provide airlines with a similar exemption does not make the application of sales tax unconstitutional. Delta can pursue an exemption if it complies with and qualifies under KRS 139.470(5). If it needs further exemption, it must approach the General Assembly.

The doctrine of contemporaneous construction has no application to a state agency’s interpretation of the Federal constitution, and it does not apply to a clear and unambiguous statute.

The contention by Delta that various provisions of Chapter 139, when read together, create a practical ambiguity as to the application of the sales tax on jet fuel is without merit. The further argument that this alleged ambiguity serves as a basis for the application of the doctrine of contemporaneous construction to those statutes in order to require the Revenue Cabinet to continue its previous erroneous policy of prorating sales tax is unpersuasive. This doctrine has no application to a state agency’s interpretation of the Federal Constitution. The position of Delta could result in the Federal constitution meaning one thing in Kentucky and another in other states. A construction of a general statute by officials of a particular locality carries little weight because the construction must be uniform to be binding on all those affected by the law. 2A Sutherland, Statutory Construction § 49.05 at 239 (4th ed. 1973); City of Louisville v. Board of Education, 154 Ky. 316, 157 S.W. 379 at 380-381 (1913).

The arguments of Delta extend the doctrine of contemporaneous construction beyond any ascertainable precedent. The primary statute is not ambiguous. KRS 139.200. There is no basis for application of the doctrine. An unambiguous statute is to be applied without resort to any outside aids. Gateway Construction Company v. Wallbaum, Ky., 356 S.W.2d 247 (1962). The Kentucky statute is imposed on retail sales and all retailers. There is nothing in the law which indicates that a retailer is relieved from collecting the tax from a purchaser because the purchaser will thereafter take the goods out of the state. There is no ambiguity requiring the use of extrinsic aids to construe the statute.

KRS 139.470(1) exempts certain kinds of transactions to protect the constitutionality of the sales tax by prohibiting its application to constitutionally protected sales. Jet fuel sales are not constitutionally protected. Eastern Air Transport, supra. There is no basis upon which to support the erroneous interpretation by the Revenue Department in 1961 of a proration policy. No statute expressly or impliedly creates an exception for Delta. There is no ambiguity in the statute so as to create a proration policy by way of a proper interpretation of the revenue statutes. The pro-ration policy was not tied in any way to the statutes in question.

The Revenue Department, in 1961, simply misinterpreted the application of the statute to the product. The doctrine of contemporaneous construction cannot be validly applied to a mistake by an agency of the application of the Federal constitution to state law.

KRS 139.480(1) and KRS 139.483 create no ambiguity for KRS 139.200. They merely exempt fuel for trains and motor vessels and supplies consumed by a crew on a motor vessel. These exemptions do not indicate any intention by the legislature to avoid unconstitutional state taxation on the purchases of interstate common carriers. The Board correctly concluded that .equality and uniformity were required only among airlines as a separate classification of taxpayer.

The existence of the proration policy does not establish any statutory ambiguity. Delta has not demonstrated precisely where the alleged ambiguities may be found. It must be remembered that the proration directive of 1961 is erroneous because it contradicts the plain meaning of the tax statute, KRS 139.200.

The failure of a public officer to correctly administer the law does not prevent a more diligent and efficient public administrator to bring into the revenue proper subjects of taxation. An erroneous interpretation of the law will not be perpetuated. City of Louisville v. Board of Education, supra; See, 71 Am.Jur.2d, State and Local Taxation, § 328; 2A Sutherland, Statutory Construction § 49.-05, at 239 (4th ed. 1973). The legislature never adopted an exemption for airline fuel purchases. The Department of Revenue did not have authority to adopt the proration policy in 1961, and it also had an affirmative responsibility to abandon that erroneous policy when it discovered its error.

Although generally the courts give great deference to an agency interpretation of the regulations and the law underlying them, that does not rise to an abdication of the court’s responsibility to finally construe the same statute or regulation. In matters of statutory construction, the courts have the ultimate responsibility, particularly in the area of constitutional law. 4 Davis, Administrative Law Treatises § 30.09 (1st ed. 1958).

Moreover, an administrative construction arrived at in an uncontested non-adversarial proceeding is not entitled to great weight. See, 2A Sutherland § 49.05, supra, and Kentucky Board of Tax Appeals v. Citizens Fidelity Bank & Trust Company, Ky., 525 S.W.2d 68 (1975).

We are persuaded by the validity of the Illinois decision in United Air Lines v. Mahin, 49 Ill.2d 45, 273 N.E.2d 585 (1971), affirmed with remand, 410 U.S. 623, 93 S.Ct. 1186, 35 L.Ed.2d 545 (1973), involving air fuel and the application of a use tax. The rule of contemporaneous construction by an administrative agency is not binding on the courts if it is erroneous and if the statute is unambiguous.

The 1982 adoption of a sales tax exemption for interstate air carriers clearly demonstrates that there is not and never has been an exemption for fuel purposes. KRS 139.480. The enactment of exemptions for certain items with a clear exception of fuel demonstrates that the legislature did not intend to exempt fuel sales from taxation. KRS 139.480(1). This action was after the Revenue Cabinet’s 1978 decision to correct the previous proration policy and must be presumed to be within the knowledge of the legislature and certainly within Delta’s knowledge.

In regard to the matter of food purchases, we affirm the decision of the Court of Appeals because there is no indication by the Board or the trial court as to whether 103 KAR 27:080 should be applied to food purchases and we have no finding of fact on the issue of whether any meals are taxable in Kentucky. Consequently we must remand this aspect of the case to the Board of Tax Appeals for a further determination.

It is our conclusion that the Commerce Clause of the Federal constitution permits the levy of a non-discriminatory sales tax on purchases of fuel by Delta in Kentucky. Airlines may be separately classified for sales tax without a violation of the Equal Protection Clause.

There is no express or implied exemption for fuel purchases by airlines. All exemptions from taxation must be strictly construed and all doubts are to be resolved against an exemption. Here there is no rational basis for implying an exemption because there is no ambiguity in the law whose construction must be utilized to create such an exemption.

There is definite evidence in the form of KRS 139.480(16), which indicates a specific legislative intent that air carrier fuel is not exempt. There is also the fact that the proration policy is in direct conflict with the tax levy statute, KRS 132.200.

The decision of the Court of Appeals and the judgment of the circuit court and the ruling of the tax court are affirmed.

AKER, GANT, LEIBSON, VANCE and WINTERSHEIMER, JJ., concur.

STEPHENSON, J., dissents by separate opinion.

STEPHENS, C.J., joins in his dissent.

STEPHENSON, Justice,

dissenting.

While I agree that Delta could be charged sales tax on the full amount of all fuel purchases in this state, the fact is that any charge against Delta in the circumstances of this case is discriminatory. Railroads, ships, and vessels are exempted, and regardless of the dubious validity of these exemptions, they are common carriers engaged in interstate commerce the same as Delta. Thus, any attempted enforcement of the sales tax against Delta violates equal protection, as well as the uniformity provisions of Section 171 of the Kentucky Constitution and the “arbitrary” provision of Section 2.

The attempt by the majority to justify the exemption as to ships, vessels, and railroads simply falls short of any definition of a reasonable classification.

Accordingly, I dissent.

STEPHENS, C.J., joins in this dissent.


author: AKER, Justice.

text:
    Edwin S. STEWART, Movant, v. Howard C. LAWSON, Deputy Commissioner of Labor, Successor to John Calhoun Wells (the Special Fund); Coal Miners’ Pneumoconiosis Fund; and Mountain Top Fuel, Inc., Respondents.
    Supreme Court of Kentucky.
    May 2, 1985.

      R. Roland Case, Kelsey E. Friend Law Firm, Pikeville, for movant.
    Dennis S. Kline, Dept, of Labor, Louisville for Special Fund.
    William J. Baird, III, Baird & Baird, Pikeville, for Mountain Top Fuel.
    Jackie H. Blankenship, Director, Workers’ Compensation Bd., Frankfort, for respondents.
   AKER, Justice.

The movant, Edwin Stewart, filed a claim for Worker’s Compensation benefits against his employer, Mountain Top Fuel, Inc., the Special Fund and the Coal Miner’s Pneumoconiosis Fund alleging that he had become disabled by pneumoconiosis/silico-sis. The movant’s work history included six years as a coal miner, of which three were spent underground, and six years as a general laborer packing fiberglass for shipment.

The Board deposed several doctors, four of whom diagnosed the movant as having pneumoconiosis, while five were of the opinion that he was not suffering from the disease. The Board rendered an opinion and order dismissing the claim stating that “the plaintiff has not sustained his burden of proof that he is occupationally disabled as the result of contracting the disease of coal worker’s pneumoconiosis while in the employ of the defendant coal company.” (Emphasis added).

The movant appealed to the Pike Circuit Court which remanded the case to the Board to make a specific finding as to whether the movant suffered from an occupational disease, and if so, whether he received an injurious exposure while in the employ of the respondent, Mountain Top Fuel, Inc.

On remand, the Board reviewed the medical evidence presented at the original hearing and concluded that movant had the occupational disease, pneumoconiosis/sili-cosis, and that the movant was last exposed to the disease while employed by Mountain Top Fuel. The Board stated that it could not be conclusively proven that the disability resulted from the last exposure. The Board found that Stewart sustained an occupational disability of 70%, apportioning 14% to Mountain Top Fuel, 28% to the Special Fund and 28% to the Coal Miner’s Pneumoconiosis Fund.

The circuit court affirmed the award, but the Court of Appeals reversed on the grounds that the original opinion and order of the Board made a sufficient finding that the movant did not suffer from an occupational disease. The court reinstated the original opinion denying the movant disability benefits. This court granted discretionary review and we reverse the opinion of the Court of Appeals..

For the movant to have recovered Worker’s Compensation benefits, the Board is required to find, among other things, that he has an occupational disease as defined in KRS 342.620, and the place of employment where he received his last “injurious exposure” to the disease. The Board did not make these findings either explicitly or implicitly in its original opinion. It found only that the movant did not contract pneumoconiosis while in the employ of Mountain Top Fuel. It did not make a finding as to whether the movant had pneumoconiosis, whether he was occupationally disabled by it or whether he was injuriously exposed to the disease while in the employ of Mountain Top Fuel. Therefore, the circuit court properly remanded the case to the Board to make a specific finding on these issues. Robinson v. Crider Mining Company, Ky., 533 S.W.2d 530 (1976).

The respondent argues that even if the circuit court properly remanded the case to the Board for further findings, the Board erred because, without hearing additional evidence, it reversed its previous finding, citing Beth-Elkhorn Corp v. Nash, Ky., 470 S.W.2d 329 (1971).

The Board though did not reverse its previous finding. It was not inconsistent for the first opinion to state that the work for Mountain Top Fuel did not cause the occupational disability and the second opinion to state that the movant was occupationally disabled as a result of his working with coal and fiberglass over a number of years and that he was exposed to pneumo-coniosis while employed by Mountain Top Fuel.

The movant for his part alleges that the respondent should have been barred from appealing to the Court of Appeals after the circuit court affirmed the Board’s findings. The movant reasons that under Davis v. Baker, Ky., 530 S.W.2d 370 (1975), the original order of the circuit court remanding the case to the Board was a final and appealable order, and the appeal should have been taken at that time. Since the circuit court only remanded the case for further findings and did not make a final disposition by way of terminating the action, adjudicate the rights of any party or operate to divest any party of some right, the action of the circuit court in remanding the case was not a final and appealable order within the meaning of CR 54.01. Wagoner v. Mills, Ky.App., 566 S.W.2d 159 (1977); see also Ratliff v. Fiscal Court of Caldwell County, Kentucky, Ky., 617 S.W.2d 36 (1981).

The opinion of the Court of Appeals is reversed, and the September 17, 1982 judgment of the Pike Circuit Court affirming the Board’s award of disability benefits for the movant is hereby affirmed.

All concur.


author: LESTER, Judge.

text:
    Frederick DUNN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 84-CA-360-MR.
    Court of Appeals of Kentucky.
    Oct. 26, 1984.
    As Modified Nov. 9, 1984.
    Rehearing Denied Dec. 21, 1984.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court May 15, 1985.

      Daniel T. Goyette, Jefferson District Public Defender, J. David Niehaus, Deputy Appellate Defender, Louisville, for appellant.
    David L. Armstrong, Atty. Gen., Suzanne Guss, Asst. Atty. Gen., Frankfort, for ap-pellee.
    Before CLAYTON, LESTER and WHITE, JJ.
   LESTER, Judge.

This is an appeal from a judgment entered upon a jury verdict finding appellant guilty of receiving stolen property valued in excess of $100. Pursuant to a plea of guilty to persistent felony offender, the sentence was enhanced to ten years imprisonment.

On January 19 and 20, 1984, Harvey Copeland lived in an apartment directly above one occupied by Barbara Fisher on Gardiner Lane in Louisville. On the morning of the 19th, Copeland heard some noise emanating from the quarters below him and, knowing Fisher was normally at work at that hour, looked out the window. From his vantage point, Copeland observed a blue station wagon bearing the words “Community Taxi” and a man placing an object in the vehicle, the article being covered by a green army jacket. The upstairs tenant wrote down the license number and called the police. Upon arrival, the officer got a further description of the station wagon and he also learned that two to three black men were involved, two of whom were wearing green army field jackets. A police radio “pickup” was issued.

Barbara Fisher was notified at her place of employment about 10:00 A.M. on the morning of the break-in and she went directly to her apartment, wherein she found a number of items missing, including jewelry, and she notified police. Although the appellant would have us believe otherwise, Fisher advised the police of the missing items on the 19th because they had already been listed on a report which the apprehending officer read on the morning of the 20th before he arrested appellant.

At approximately 8:00 A.M. on January 20, Detective Jose Fernandez, while on Brownsboro Road, observed the subject station wagon containing three black males, the driver of which, Chester Smith, originally a codefendant in this case, the officer recognized. Smith was wearing a green army field jacket. Backup officers were called, one of whom was Patrolwoman Bonnie Wintergerst. The vehicle having been stopped and the backup unit on the scene, Officer Wintergerst thereupon ordered appellant Dunn from the back seat and, after observing a bulge in his pocket, patted him down. This frisk resulted in the officer finding the jewelry, discussed above.

Without extensive elaboration, the sequence of events that followed the foregoing were that the three suspects were taken to the police station; advised of their rights and interrogated. Dunn denied participation in the theft but admitted helping in disposing of the items; and, after consultation with the other two suspects, appellant agreed to take the police to his apartment to recover articles stolen in other burglaries. Dunn, Geno Robinson, a co-suspect, and Detective Fernandez went to the dwelling and at that point appellant went about the apartment, picked up the property, and gave it to the police. There was no search, in the traditional sense, made by the officer. In the meantime, Fisher had gone to the station and identified her belongings.

A suppression hearing was held whereat the appellant objected to the stopping of the vehicle, the pat-down search and admission of the fruits thereof, the jewelry, the search of the apartment and certain oral and written statements made by Dunn. Only the oral statement was determined to be inadmissible. At the trial, the co-suspects testified against Dunn.

On appeal, complaint is made of the errors allegedly resulting from the suppression hearing in that Dunn’s arrest, the search of appellant and seizure of the jewelry and the refusal to suppress the written statement of appellant were improper, the search of Dunn’s apartment was based upon involuntary consent, and a mistrial should have been declared because of certain remarks made by the prosecutor in opening statement.

We address the arrest of Dunn first. Appellant admits that all the events through the stopping of the station wagon were proper but then argues that there was no probable cause to arrest Dunn because:

Fernandez and Wintergerst could not have known any jewelry was stolen.
At the time of the stop Dunn was not connected to the crime.
Even though jewelry was found in Dunn’s pocket it could not be connected with the burglary.
Barbara Fisher didn’t know the jewelry was stolen until the afternoon of the 20th.

Based upon the foregoing, it is urged that even a short term detention or investigative stop was illegal within the confines of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), and Michigan v. Summers, 462 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). We cannot accept the argument for it is based upon what appellant perceives the facts to be, not what the record shows.

In the first place, the police were aware that the suspects could have been three in number rather than two as of the 19th. Barbara Fisher reported jewelry stolen on the 19th and not the 20th, for prior to the stop (about 8:00 A.M. on the 20th), Detective Fernandez read about the loss of jewelry on a report. What appellant wants us to believe is that since Fisher did not identify the recovered jewelry until the afternoon of the 20th, she did not report its loss until that time. The record does not support his interpretation of the facts.

It is obvious from the appellant’s view of the facts that he does not agree with our interpretation thereof but we need not fashion a different perspective in order to find the trial court correct in its suppression hearing order. We say this based upon what Dunn admits as true. Even though appellant does not deny that the witness Copeland initially told the police that there could have been three suspects at the scene of the burglary, he contents himself with pointing out that rudimentary descriptions of two were given. He does not dispute the description of the vehicle and agrees that there was ample justification for the actions of the law enforcement agents up to the point of stopping the station wagon on January 20th. Thereafter, Dunn emphasizes lack of probable cause. We now turn to the legal principles.

What disturbs most criminal defendants and their representatives is that the so-called security from invasion of privacy of their persons, luggage, vehicles, shipping containers, etc. has been consistently liberalized, or eroded, if you will, with the exception of private residences. Even this last category has come under closer scrutiny recently. The pendulum of conservatism in criminal jurisprudence started in its present direction with Terry, supra, and continues to swing in Massachusetts v. Sheppard, 468 U.S. -, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The many recent decisions of the United States Supreme Court have revamped the principles of search and seizure law, and, as applicable to this case, have reaffirmed some older ones. In Michigan v. Long, 463 U.S. 1032, 1045, 103 S.Ct. 3469, 3478, 77 L.Ed.2d 1201, 1217, (1983), the Supreme Court in discussing Terry said:

Examining the reasonableness of the officer’s conduct in Terry, we held that there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” 392 US, at 21, 20 L Ed 2d 889, 88 S Ct 1868 [at 1879], 44 Ohio Ops 2d 383 (quoting Camara v. Municipal Court, 387 US 523, 536-537, 18 L Ed 2d 930, 87 S Ct 1727 [1734-1735] (1967)). Although the conduct of the officer in Terry involved a “severe, though brief, intrusion upon cherished personal security,” 392 US, at 24-25, 20 L Ed 2d 889, 88 S Ct 1868 [at 1882], 44 Ohio Ops 2d 383, we found that the conduct was reasonable when we weighed the interest of the individual against the legitimate interest in “crime prevention and detection,” id., at 22, 20 L Ed 2d 889, 88 S Ct 1868 [at 1880], 44 Ohio Ops 2d 383, and the “need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they lack probable cause for an arrest.” Id., at 24, 20 L Ed 2d 889, 88 S Ct 1868 [at 1881], 44 Ohio Ops 2d 383. When the officer has a reasonable belief “that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Ibid.
Although Terry itself involved the stop and subsequent pat-down search of a person, we were careful to note that “[w]e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases.” Id., at 29, 20 L Ed 2d 889, 88 S Ct 1868 [at 1884], 44 Ohio Ops 2d 383. Contrary to Long’s view, Terry need not be read as restricting the preventative search to the person of the detained suspect.
In two cases in which we applied Terry to specific factual situations, we recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 US 106, 54 L Ed 2d 331, 98 S Ct 330 (1977), we held that police may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile.”

In footnote 11, referred to in the above quote, Justice O’Connor pointed out:

Although we did not in any way weaken the warrant requirement, we acknowledged that the typical “stop and frisk” situation involves “an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct in this case must be by the Fourth Amendment’s general proscription against unreasonable search and seizures.” Terry, supra, 392 US at 20, 20 L Ed 2d 889, 88 S Ct 1868 [at 1879], 44 Ohio Ops 2d 383 (footnote omitted). We have emphasized that the propriety of a Terry stop and frisk is to be judged according to whether the officer acted as a “reasonable prudent man” in deciding that the intrusion was justified. Id., at 27, 20 L Ed 2d 889, 88 S Ct 1868 [at 1883], 44 Ohio Ops 2d 383. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 US 143, 146, 32 L Ed 2d 612, 92 S Ct 1921 [1923] (1972).

Thus, in the case at bar, we have three black males, two wearing green army jackets, stopped in a car identified as having been the burglary vehicle. It must be remembered that the neighbor reported three black males as being involved. When he was asked to vacate the car, Officer Win-tergerst observed the bulge in Dunn’s pocket. When asked upon redirect examination as to her opinion of the lump, she replied:

Q. Okay. Was it as big as or comparable to any kind of weapon that could of been in his pocket?
A. It could very easily have been.

Appellant argues that “Wintergerst never voiced any fear that appellant was armed ....” In the first place, no one queried her about her fears, and in the second place, we do not believe a police officer to have to be fearful in order to invoke the typical “stop and frisk” which involves the “entire rubric of police conduct — necessarily swift action predicated upon on-the-spot observations of the officer on the beat_” Michigan, supra. Moreover, if while conducting a legitimate pat-down of a stopped individual within Terry the officer discovers contraband other than weapons, he should not be required to ignore it, and the Fourth Amendment does not require its suppression. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

As to the matter of probable cause, we alluded to the fact that the United States Supreme Court has reaffirmed some old principles and established new ones in recent decisions. In Texas, the Court, recalling a 1925 decision, opined:

As the Court frequently has remarked, probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 US 132, 162, 69 L Ed 543, 45 S Ct 280 [288] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 US 160, 176, 93 L Ed 1879, 69 S Ct 1302 [1311] (1949). Moreover, our observation in United States v. Cortez, 449 US 411, 418, 66 L Ed 2d 621, 101 S Ct 690 [695] (1981), regarding “particularized suspicion,” is equally applicable to the probable cause requirement:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as fact-finders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

Applying the foregoing “flexible, commonsense standard ... as understood by those versed in the field of law enforcement,” we find no error in the actions of the police officers in the stop and frisk of Dunn, the seizure of the jewelry and the determinations made by the court below.

Since the appellant alleges error in the admission of his written statement based upon what he terms his illegal seizure, and having found his seizure to be proper, then we need not address this contention. The same would be true concerning the argument regarding appellant’s consent to search his apartment because he urges that illegal arrest and detention tainted the consent. As was pointed out in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983):

We also agree that had Royer voluntarily consented to the search of his luggage while he was justifiably being detained on reasonable suspicion, the products of the search would be admissible against him.

Unlike Mark Royer, we have determined that Dunn was validly arrested and there being no question that he consented to the search, then his argument is without merit. Moreover, there is no evidence that any law enforcement agent actually searched the accused’s quarters.

Appellant’s final point is that he should have been granted a mistrial because the prosecutor made two references to the contents of an oral statement in her opening statement. Dunn urges that the statement had been suppressed. Insofar as the first reference is concerned, there is some conjecture that the Commonwealth was aware that the matter had in fact been suppressed, but in any event, unlike in Dunn’s authority, Moore v. Commonwealth, Ky., 634 S.W.2d 426 (1982), an admonition was given which, absent bad faith, we believe cured the defect, if any.

As to the second remark, the mistrial motion was overruled and an admonishment given. The gist of the reference was that appellant told the police he knew about the burglary but that he did not participate in its commission. At the trial, both of Dunn’s compatriots, Geno Robinson and Chester Smith, testified that Robinson and Dunn actually burglarized Fisher’s apartment, detailing his (Dunn’s) particular acts in the enterprise. In view of the overwhelming evidence of guilt, both as to illegally entering the dwelling as well as receiving the stolen property, the error, if one there be, was harmless. Blake v. Commonwealth Ky., 646 S.W.2d 718 (1983).

The judgment is affirmed.

All concur.


author: MILLER, Judge.

text:
    Rob MARTIN and Phoenix Properties, Appellants, v. Thomas BEEHAN; Covington Board of Adjustment; City of Covington; Covington Board of Commissioners; Fred N. Donsback, Jr.; and Kenton County Municipal Planning and Zoning Commission, Appellees.
    Court of Appeals of Kentucky.
    Jan. 18, 1985.
    As Modified on Denial of Rehearing March 22, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court May 15, 1985.

      Otto Daniel Wolff, Paxton & Season-good, Cincinnati, Ohio, for appellants.
    Jeffrey J. Harmon, Manley, Jordan & Fischer, Cincinnati, Ohio, Arnold Simpson, Charles Wagner, Covington, Frank G. Ware, Florence, for appellees.
    Before LESTER, MILLER and WIL-HOIT, JJ.
   MILLER, Judge.

This dispute involves the question of “abandonment” of a nonconforming use existing under the zoning ordinance applicable to the City of Covington, Kentucky. Nonconforming use is authorized (grandfathered) under KRS 100.253 which provides, in part, as follows:

“EXISTING NONCONFORMING USE, CONTINUANCE — CHANGE—EFFECT OF NONCONFORMING USE OF TEN YEARS’ DURATION — APPLICATION—
(1) The lawful use of a building or premises, existing at the time of the adoption of any zoning regulations affecting it may be * continued, although such use does not conform to the provisions of such regulations, except as otherwise provided herein.
(2) The board of adjustments shall not allow the enlargement or extension of a nonconforming use beyond the scope and area of its operation at the time the regulation which makes its use nonconforming was adopted, nor shall the board permit a change from one (1) nonconforming use to another unless the new nonconforming use is in the same or a more restrictive classification....

The Covington Zoning Code, § 3.06, provides, in part, as follows:

Where a structure is non-conforming or where the use of a structure of of [sic] land has non-conforming status, such status shall be forfeited under any of the following circumstances:
(d) If a non-conforming use of a structure or of a structure and land in combination is discontinued or abandoned for twelve consecutive months or for twenty-four months during any four year period; (Note: as used herein the word “discontinued” means that the owner or responsible party for the use of the property cannot demonstrate that he had clear intent to continue using the'property for the . non-conforming purpose and that he augmented that intent by making every reasonable effort to continue to have the property so used. A demonstration of intent would be reasonable, continuous effort to have the property rented or sold for the non-conforming purpose.)
(f) Once forfeited, non-conformance may not again be used as a defense against prosecution for violation of the provisions of the zoning ordinance.”

Section 3.00a of the Code provides:

However, it is the intent of this Ordinance to permit these non-conformities to continue in their present condition, but not to encourage their survival.

Appellants contracted to purchase the Browning Hotel property located in a residential (R-3) area of the City of Coving-ton. The hotel was operated as a nonconforming use under KRS 100.253. Appellants applied to the Covington Board of Adjustment (board) for a change-of-nonconforming-use permit for the purpose of converting the property into an office complex — a use which did not conform to R-3 zoning. Appellee, Thomas Beehan, an area resident, resisted the issuance of the permit claiming “abandonment” of the nonconforming use. A nonconforming use once abandoned cannot be revived. However, a finding that a nonconforming use has not been abandoned entitles an applicant to routine issuance of a permit. The central issue was simply one of abandonment. The board heard evidence and determined the nonconforming use had not been abandoned. A change-of-use permit was therefore issued. The board made the following finding:

... the use of the building as a hotel while discontinued 10-12-15 years has not been abdoned (sic) in the (sic) since that afforts (sic) have been made by the owner to sell the building as a hotel. (Minutes, March 9,1983, attached to Aff. of Jeffrey Harmon submitting Record of Board of Adjustment.)

The Kenton Circuit Court reversed the order of the board, thereby precipitating this appeal. We are squarely faced with the question of whether the action of the board in granting the permit was arbitrary as viewed in light of the party bearing the burden of proof. We are not reviewing the circuit court’s action under the clearly erroneous rule of CR 52.01. Rather, we are reviewing, as did the circuit court, the record of the board to determine arbitrariness, if any. See Board of Education of Ashland School District v. Chattin, Ky., 376 S.W.2d 693 (1964). At the outset, we observe that a nonconforming use is a property right constitutionally protected. See Darlington v. Board of Councilmen, 282 Ky. 778, 140 S.W.2d 392 (1940). It can, however, be abandoned. In each case, the abandonment rests upon intent. While intent may be inferred from a long period of disuse [Cf. Holloway Ready Mix Company v. Monfort, Ky., 474 S.W.2d 80 (1968)—ten year disuse of a rock quarry], the general rule is that mere discontinuance of the nonconforming use does not in itself constitute abandonment. The circumstances surrounding each case must be considered. Cf. Smith v. Howard, Ky., 407 S.W.2d 139 (1966), and City of Bowling Green v. Miller, Ky., 335 S.W.2d 893, 87 A.L.R.2d 1 (1960). See generally 82 Am. Jur.2d Zoning and Planning § 214 et seq. (1976), and Annot., 56 A.L.R.3d 14 (1974). Our analysis of the cases in this jurisdiction leads us to conclude that discontinuance of use is but a single factor, albeit a strong one, to be considered in determining intent to abandon.

One asserting abandonment bears the overall burden of proof upon that fact. See Smith v. Board of Zoning Appeals of the City of Scranton, 74 Pa.Cmwlth. 405, 459 A.2d 1350 (1983); 82 Am.Jur.2d Zoning and Planning § 218 (1976). We interpret the discontinuance-time limitation provision of the ordinance to create a presumption of abandonment of a nonconforming use after expiration of the time stated in Section (d). See of general application, 82 Am.Jur.2d Zoning and Planning §§ 219 and 220 (1976). This presumption will carry the burden of proof unless rebutted by evidence. If it is rebutted by evidence, the one asserting abandonment is returned to his overall burden of persuasion. He must persuade the factfinders to find facts in his favor based upon substantial evidence. Actually, when the presumption of abandonment is rebutted by evidence, the discontinuance-time limitation provision of Section (d) of the ordinance relates only to the overall question of intent to abandon the use.

In the case sub judice, Thomas Beehan, who asserted abandonment of the use, bore the burden of proof. He was aided by the presumption created by the ordinance. Further, he was supported, to some extent, by the general bias against continuation of a nonconforming use. See Attorney General v. Johnson, Ky., 355 S.W.2d 305 (1962). However, his presumption vanished with the introduction of evidence that although the property had been in disuse as a hotel for many years, it nevertheless had been offered for sale as a nonconforming use. The record indicates the offering of sale was not a “continuous effort,” as contemplated in Section (d). Of course, the sale was unsuccessful, but the offering of the property for sale, we believe, was sufficient to rebut the presumption of abandonment arising under the ordinance. Thus, Beehan was left with the overall burden of persuasion upon the record. The board decided that he failed in this burden. The circuit reversed, holding that Beehan had carried his burden of proof, hence the decision of the board was arbitrary.

Upon reviewing this matter, we conclude that the record is void of any significant manifestation of intent on the part of the owners to continue the nonconforming use of the Browning Hotel either as a hotel or an acceptable substituted use. There is no rationale as to the long period of disuse of the property as a hotel or otherwise. There is no inference of financial inability or governmental impediment. It can only be concluded that the owners of the property, who did not appear in these proceedings, deemed it wiser to sell the property rather than continue the use. There was, during the more than ten years of disuse, the attempt to sell the property. However, we apprehend this to have as clearly manifested an attempt to abandon the use as to perpetuate it. There was no assurance that any would-be purchaser would continue the nonconforming use of the property. Further, we are committed to the proposition that intent must be born out by a showing of acts and not merely a plan in mind. See Attorney General v. Johnson, supra. The record as a whole, in our view, compelled a finding of abandonment; therefore, the circuit court was correct in entering judgment in favor of appellees.

For the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed.

All concur.

      . Although we do not consider the validity of the Covington ordinance essential to the disposition of the case at hand, we do wish to point out that the discontinuance-time limitation provision in zoning ordinances is in derogation of the common law and is to be strictly construed. See Smith v. Howard, Ky., 407 S.W.2d 139 (1966). Where the termination provision of the ordinance does not bear a reasonable relationship to the purpose of terminating the nonconforming use, the provision will not-be given effect. See City of Middlesboro Planning Commission v. Howard, Ky., 551 S.W.2d 556 (1977).


author: GUDGEL, Judge:

text:
    KENTUCKY INSURANCE GUARANTY ASSOCIATION; D.L. Curry; and Katie Curry, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 1, 1985.
    Rehearing Denied May 3, 1985.

      J.D. Raine, Jr., Louisville, for appellants.
    Douglas B. Taylor, Louisville, for appel-lee.
    Before HAYES, C.J., and COOPER and GUDGEL, JJ.
   GUDGEL, Judge:

This is an appeal from a judgment entered by the Jefferson Circuit Court. The court adjudged that appellee, State Farm Mutual Automobile Insurance Company (State Farm), is not liable to its insureds on a liability insurance policy providing uninsured motorist coverage. Appellants contend the court erred by finding that State Farm is not liable on the policy. We agree. Hence, we reverse.

On January 22, 1979, Donald and Vickie Clark, who are insured under a liability insurance policy issued by State Farm, were involved in a collision with appellant, D.L. Curry. At the time the Clarks were operating a vehicle owned by them and Curry was operating a vehicle owned by his wife. Subsequently, the Clarks filed a personal injury action against the Currys. As of the date of the collision, the Currys were insured under a liability insurance policy issued by Kenilworth Insurance Company. In April 1982, however, Kenilworth was adjudged to be insolvent by an Illinois court.

Due to Kenilworth’s insolvency, the Clarks’ pending action against the Currys came within the ambit of the Kentucky Insurance Guaranty Association Act. Under the provisions of the act, the association is required to pay to the limits specified in the statute any unpaid claim the Clarks may have against Kenilworth arising out of a successful prosecution of the action against the Currys. KRS 304.36-050(3); KRS 304.36-080. However, since KRS 304.36-120(1) provides that persons having a claim against the association must exhaust any claim they have against their own insurer first, the association demanded that the Clarks proceed against their own insurer, appellee State Farm, to recover the limits of uninsured motorist coverage provided by their own policy before they pursued any claim against it. State Farm, however, denied that it was liable to provide the Clarks uninsured motorist coverage because Kenilworth’s insolvency did not occur within one year of the collision. The company cited the provisions of KRS 304.20-020(3) to support its position. After considering the matter, the trial court granted a summary judgment in favor of State Farm. This appeal followed.

The policy issued by State Farm defines an uninsured motor vehicle in part as follows:

(1) A land motor vehicle ... with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies that there is any coverage thereunder or is or becomes insolvent.

KRS 304.20-020(3) provides as follows:

(3) Protection against an insurer’s insolvency shall be applicable only to accidents occurring during a policy period in which its insured’s uninsured motorist coverage is in effect where the liability insurer of the tortfeasor becomes insolvent within one (1) year after such an accident. Nothing herein contained shall be construed to prevent any insurer from affording insolvency protection under terms and conditions more favorable to its insureds than is provided hereunder.

State Farm argues that KRS 304.20-020(3) was intended to limit its liability to provide uninsured motorist coverage under policies similar to the one issued in favor of the Clarks to those cases in which the tort-feasor’s insurer becomes insolvent within one year of the date a covered accident occurs. It urges, therefore, that since Kenilworth's insolvency in the instant action occurred more than one year after the date the covered accident occurred it is not obligated to provide uninsured motorist coverage to the Clarks. State Farm’s argument is untenable.

The appropriate starting point for our analysis is the statute itself. The public policy which motivated the legislature to enact subsection (3) of KRS 304.20-020 must be determined by analyzing KRS 304.20-020 as a whole. The legislature’s intent cannot be determined by construing subsection (3) out of context. The first section of KRS 304.20-020 mandates that all automobile liability insurance policies issued in this state shall include uninsured motorist coverage providing limits of coverage as set forth in KRS 304.39-110 unless such coverage is rejected in writing by the insured. The second section of the statute provides that for purposes of such coverage an “uninsured motor vehicle” shall be deemed to include any insured motor vehicle the liability insurer of which cannot pay a legal liability due to insolvency. The third section of the statute, quoted above, provides that protection against insolvency shall include cases in which the insurer becomes insolvent within one year of the accident. However, this latter section also specifically recognizes that insurers may afford insolvency protection which is more “favorable to its insureds than is provided hereunder.”

This jurisdiction has adopted the view that KRS 304.20-020 was intended to establish a general outline of required uninsured motorist coverage which liability insurers must provide with the precise coverage afforded to be defined by reasonable terms and conditions included in the various insurance contracts. State Farm Mutual Automobile Insurance Company v. Christian, Ky., 555 S.W.2d 571 (1977). We are bound to utilize this principle in construing KRS 304.20-020(3). We conclude, therefore, that the one-year limitation period in KRS 304.20-020(3) was intended by the legislature to define a minimum period after an accident during which uninsured motorist coverage protecting against insolvency of a tortfeasor’s insurer must be provided, rather than to define a maximum period during which such coverage may be provided. By construing the statute in this manner, we reaffirm the principle that KRS 304.20-020 was intended to provide a general outline of required minimum coverages. Moreover, our interpretation of the statute is the only one which will prevent insurers such as State Farm from drafting their policies to limit uninsured motorist coverage protecting against insolvency of another insurer to periods substantially less than one year.

Here, State Farm issued a policy in which they elected not to impose any time limitation whatever on the period during which protection against insolvency is afforded. By doing so, State Farm must be deemed to have voluntarily agreed to provide uninsured motorist coverage protecting against insolvency more favorable than the minimum coverage which is required by KRS 304.20-020(3).

State Farm’s remaining contention that the Currys are not uninsured as a result of Kenilworth’s insolvency is also without merit. State Farm’s entire argument in this vein is premised on one section of the Kentucky Insurance Guaranty Association Act. As noted earlier, this act is intended to provide a mechanism for the payment of covered claims to avoid financial losses occasioned by the insolvency of an insurer. KRS 304.36-020. Since the parties concede that the Clarks are pursuing a “covered claim” under the act against the Currys, State Farm argues that the association pursuant to KRS 304.36-080(l)(b) has succeeded to all of Kenil-worth’s duties as the Currys’ insurer. It urges, therefore, that the Currys are not uninsured. State Farm's argument, however, ignores the provisions of KRS 304.36-120(1) which provide as follows:

(1) Any person having a claim against his insurer under any provision in his insurance policy which is also a covered claim shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this subtitle shall be reduced by the amount of such recovery under the claimant’s insurance policy.

In our opinion, KRS 304.36-120(1) is obviously intended to require insureds such as the Clarks to exhaust their right to recover sums due under the uninsured motorist coverage portion of their own liability insurance policy before they may pursue a “covered claim” against the association. Such a construction of our statute comports with the construction given substantially identical statutes by the better reasoned authorities in other jurisdictions. See, e.g., Henninger v. Riley, 317 Pa.Super. 570, 464 A.2d 469 (1983). Accordingly, we hold that KRS 304.36-120(1) precludes the association from being adjudged liable to the Clarks in the instant action until such time as they have recovered all sums due under the uninsured motorist portion of their State Farm policy.

For the reasons stated, the court’s summary judgment is reversed and remanded for further proceedings consistent with the views expressed in this opinion.

All concur.