Summary
In White, the supreme court reiterated that "[a]ny other damages for the mere trespass alone is recoverable by him who has the possession or right of possession."
Summary of this case from Bridge Props. of Lafayette, LLC v. 1000 Jefferson, LLCOpinion
No. 35257.
February 8, 1943.
1. MUNICIPAL CORPORATIONS.
A mayor of municipality was without authority to give away any of property of municipality.
2. MUNICIPAL CORPORATIONS.
Where city leased land to Federal Government for airport without expressly reserving crops growing thereon evidence established absence of intention of city to reserve such crops as should mature before it would become necessary for lessee to destroy them in the exercise of its rights under the lease, as regards right of one who gathered matured crops with permission of government's agents.
3. LANDLORD AND TENANT.
Where no prior lessee has a valid claim to growing crops as emblements, such crops generally pass to lessee having the right to immediate possession under his lease.
4. MUNICIPAL CORPORATIONS.
Where city leased land to Federal Government for exclusive purpose of establishing military reservation and airport, the limitation as to purpose for which premises were to be used was not a limitation as to what property passed under lease and could not be construed as a "reservation" of specific property which would ordinarily pass to a lessee in absence of a provision to contrary.
5. LANDLORD AND TENANT.
Where title of property in controversy is in government, the alleged tenant or licensee of someone else is not bound by rule which forbids him to dispute title of him by whose permission he enters upon the premises, since to do so would be violative of "public policy."
6. LANDLORD AND TENANT.
The right of action for injuries to possession, as distinguished from injury to reversionary interest, during term of lease belongs exclusively to lessee.
7. LANDLORD AND TENANT.
The lessor's rights, after lessee's entry, are confined to the protection of lessor's reversionary interest merely, that is, to the maintenance of action for such injuries as would, in the ordinary course of things, continue to affect such interest after the termination of the lease.
8. MUNICIPAL CORPORATIONS.
Where city leased land to Federal Government to be used exclusively for military reservation and airport without reserving growing crops and mayor, who did not act as representative of city or City Council, obtained permission from government agents for defendant to salvage matured crops, the defendant was entitled, as against the city, to crops salvaged by him.
9. MUNICIPAL CORPORATIONS.
Where city leased land to government, to be used exclusively for military reservation and airport, without reserving growing crops and mayor, who did not act as representative of city or City Council, obtained permission from government agents for defendant to salvage matured crops, burden of proof was on City Council, as complainant, to establish its own title to the crops as a "condition precedent" to right to recover the same or the value thereof from defendant.
APPEAL from chancery court of Washington county, HON. J.L. WILLIAMS, Chancellor.
D.S. Strauss, of Greenville, for appellants.
No officer of a county or city has authority to give away the property belonging to a city, or to make any contract with reference thereto unless specifically authorized by law, or through order of the governing authorities.
Tullos v. Town of Magee, 181 Miss. 288, 179 So. 557; Kidder v. McClanahan, 126 Miss. 179, 88 So. 508; Federal Land Bank v. Leflore County, 170 Miss. 1, 153 So. 882; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Code of 1930, Sec. 2902; 43 C.J. 1341, 1345.
See also Warren County v. Miss. River Ferry Co., 170 Miss. 183, 154 So. 349; Murphy v. Panther Oil Grease Mfg. Co., 181 Miss. 882, 179 So. 879; Edwards Hotel Co. v. Jackson, 96 Miss. 547, 51 So. 802; City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Jackson Electric Ry. Co. v. Adams, 79 Miss. 408, 30 So. 694.
The title to the crops growing on the land at the time of the lease to the United States did not pass to or become vested in the United States, because the lease was for a limited use, to-wit: to construct and operate an airport, and this was the extent of the possession of the government. The government was restricted in its use of the property, and to the extent that if the area was not necessary or used for the purpose the city retained full and complete title.
Lott v. Payne, 82 Miss. 218, 33 So. 948; Agnew v. Jones, 74 Miss. 347, 23 So. 25; 32 Am. Jur. 192.
The lease having been made by a municipality, it is construed most strongly and strictly in its favor.
Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270.
If the complete possession of the land and crops passes to the United States by virtue of the lease, then the possession of the property for the purpose of gathering the crop was reinvested in the city by the acts of Colonel Sturgis, for he granted permission to the city to gather such crops and to enter the land for that purpose, for the grant by him is to the City of Greenville.
The appellee White entered upon the land by virtue of the permission from the mayor, and as the licensee of the city he cannot question the title of the city to the crops.
Shell Petroleum Corp. v. Yandell, 172 Miss. 55, 158 So. 787; Newman v. Mackin, 13 Smedes M. (21 Miss.) 383; 37 C.J. 284-5.
The city having shown a prior right and title to the property, through its deed from Metcalfe, and the defendant White being an intruder, White cannot set up title in the crop as being in a third person, the United States Government, unless he shows a title to the crop derived from the government.
Even if the contention could be made that the crops passed to the government under the terms of the lease, this cannot avail White, for two reasons; one, a tort-feasor or trespasser cannot avail himself of a right vested in another; and, second, he must show a title derived from the one he claims holds a superior title to the city.
Ingram Day Lumber Co. v. Cuevas, 104 Miss. 32, 61 So. 4; Finch's Ex. v. Alston, 23 Am. Dec. 299; Wingfield Motor Co. v. Dupont (Ala.), 134 So. 37; 65 C.J. 70.
There was no abandonment of the crops by the city. The mere fact that the city did nothing towards the cultivation of the property after it acquired title does not constitute an abandonment. The facts in the instant case do not in anywise justify any theory of abandonment.
Hicks v. Steigleman, 49 Miss. 377-85; Columbus G.R. Co. v. Dunn, 184 Miss. 706, 185 So. 583; 1 C.J.S. 6, 7, 10, 15; 1 Am. Jur. 2, 3, 4, 9-10, 12.
Farish, Keady Branton, of Greenville, for appellees.
The appellees contend that the city cannot maintain its suit, and that, therefore, the bill of complaint should be dismissed, because of the fact that it has no right in or title to the crops sued for. According to the record, the city has failed to establish title to the crops because of two reasons: (1) The evidence shows that the city abandoned its ownership in the crops sued for so as to enable the appellee White as the first taker thereof to become the lawful owner of such crops. (2) Or, if there was no abandonment, the title to the crops passed to the United States Government upon the execution of the lease, with the result that the city has no right to complain of the removal of such crops by the appellee White.
The authorities are universally agreed, and we do not understand counsel for the city to differ therefrom, that title to personal property, as distinguished from land and corporeal hereditaments, may be lost by abandonment. Abandonment is just as effectual a method of divesting title out of an owner as is a conveyance with all the formalities of the law.
Columbus G.R. Co. v. Dunn, 184 Miss. 706, 185 So. 583; Landay v. MacWilliams (Md.), 114 A.L.R. 984; 1 Am. Jur. 1, Sec. 1; 1 Am. Jur. 2, Sec. 2; 1 Am. Jur. 6-7, Secs. 8-9.
The proof plainly shows the two necessary elements of abandonment, first, the intention to abandon, and second, an act relinquishing possession. The moment the two elements unite, the abandonment is complete, for time is not an essential element of abandonment. In the case at bar an abandonment of the growing crops took place when the city executed such a lease as it did, without any reservation whatsover concerning the crops and when the government entered thereunder and began the systematic destruction of all crops growing on the land. The relinquishment of possession certainly occurred when the government entered the land under the lease, giving it the right to exclusive possession. At that moment there also existed on the part of the city an intention to abandon the crops, as evidenced by its execution of the lease which would permit, without indemnity, the unlimited destruction of the crops and as shown by its further failure to do anything in connection with tending the crops in a husbandlike manner and making any effort to gather and harvest the same at maturity. If an abandonment then took place, it makes no difference whether the crops were gathered thereafter in either September, December or January, and whether one bale or a hundred bales were later permitted to mature. Once property has been abandoned, the title thereto cannot be reinvested in the former owner merely because of changed conditions and circumstances which may have enhanced the value of such property. The title to abandoned property can be regained by the former owner only upon his retaking the possession of such property.
Counsel for the city also argues that the doctrine of abandonment cannot in any case apply to a municipality, but no authority whatever is cited to sustain this assertion. On the other hand, the general authorities seem agreed that public rights, just as private rights, may be lost through abandonment.
1 C.J. 11; 1 Am. Jur. 4.
If there was no abandonment of the crops by the city, then the appellees urge that title to the crops passed to the United States Government under the lease made by the city, as held by the lower court, and that, therefore, the city has no right to complain of the removal of the crops by the appellee White.
All of the foregoing argument has been made on the assumption that the lease did not pass title to the crops but merely showed an intention to abandon the same. The defense now made is predicated upon a wholly different ground from that of an abandonment of the crops since there is involved in an abandonment merely a divesting of the title out of the former owner. If the title is vested in another by act of the former owner, an abandonment cannot possibly take place.
It is a well settled rule of law that, in the absence of a reservation of the crops by the lessor, all such crops growing on the land at the time of the execution of the lease pass to, and become the property of, the lessee.
36 C.J. 107, Sec. 476.
It is likewise a well settled rule of law that, by making a lease, a lessor deprives himself of all rights to possession thereof for the time of the lease, and that he can complain only of injuries done to the freehold, or his reversionary interest, and that he cannot complain of tortious acts committed by third persons against the tenant who holds the possessory rights during the term of the lease.
Collins v. Wheeless, 171 Miss. 263, 157 So. 82; 32 Am. Jur. 91, Sec. 78; 35 C.J. 1212.
Counsel for the city undertakes to differentiate the foregoing authorities by saying that they apply solely to unrestricted leases, or leases under which the rights of the lessee are not limited to certain uses. It is conceded that in the case at bar the lease to the Federal Government is made exclusively for a specific purpose, that is to say, for a military air base. Of course, the Federal Government could not use the land as a farm or for any other purpose than the one specified. But this limitation upon the right to use this land does not vest in the lessor any right of possession or use unless the same is expressly reserved. As we understand the law, a restricted lease controls the use to which the leased premises may be put but does not operate to leave in the landlord any greater or different rights of possession than would be the case in an unrestricted lease. If the landlord makes claim to any right of possession, he must point out the covenant which expressly restricts the tenant's rights, otherwise the full and unlimited possession for the term is vested in the tenant.
The case of Agnew v. Jones, 74 Miss. 347, 23 So. 25, cited by appellant, deals with a building erected on land and, as the court said, the building presumably became a part of the realty. There was no proof in that case to show that the title to the building passed to those in possession as a right of possession, but it remained as part of the freehold. Here, a growing crop is unquestionably a right of possession and the ownership of that crop passes to the one lawfully in possession.
In the case at bar, the lease made between the city and the United States Government contains no reservation of the crops or any part thereof. Accordingly, under the established rules of law, those crops went with the possession of the land and if an injury was committed against those crops, or if they were removed at any time during the term of the lease, the government, as lessee, is the only one that could possibly complain of such an act.
Counsel for the city further urges that since the lease in this case was made by a municipality, it should be construed more strongly in its favor to the end that since the growing crops were not specifically leased to the government, title thereto should not pass by implication. Such an argument is squarely in the face of the well settled rules of law that a lease of land conveys all rights of possession, in the absence of a reservation on the part of the lessor.
Nor can it be successfully argued that the city regained title to the crops with the right to enter the premises and gather the same, on account of such a grant and permission by Colonel Sturgis, the United States Engineer in charge of the Army air base construction. The evidence shows that the mayor specifically requested of the Engineers that appellee White be given the privilege of salvaging the crops on the northern portion of the air base property and that, in response thereto, the Engineers stated that "it was agreeable with this office for the crops on the northern portion of the reservation to be removed, so long as it did not interfere with the construction operations." The testimony of Colonel Sturgis and William Harrison, United States Engineers, does not vary from the facts as reflected in the letters passing between them and the mayor of the city, except to the extent that these officers "assume" and "interpret" that appellee White was acting for the city. Their plain understanding at the time of the correspondence was that appellee White, as named by the mayor, would be the person to enter the premises and gather the crops. The city as such never applied for permission to enter the premises or have any of its agents gather the crops. And even if it could be argued that the officers were granting the permission to the city, it is plain that the city never availed itself of such a permission and never acted to receive the grant. As a matter of legal authority, the mayor of a municipality has no more power to receive property on behalf of a municipal corporation than he has to dispose of that same property.
Two other arguments are made by counsel, namely: (1) That the title of the city to the crops cannot be questioned by appellee White in this suit because he was a licensee of the city; and (2) that the title of the city to the crops cannot be questioned by appellee White in this suit because he is unable to show a derivative title in himself from the Federal government.
As to the first point, we recognize the rule to be that, upon the creation of a license, the licensee cannot question the title of the licensor while pursuing the privileges granted by the licensor on lands owned by the latter. That rule of law has no application whatever to the present case because, in view of the mayor's absence of authority to grant a license to appellee White, no license ever came into being. If a license had been granted, the city, as licensor, could not repudiate what had been done thereunder, just as the appellee White, as licensee, could not deny the title of the city to the lands on which he entered. If the city strikes down as ultra vires the acts of its mayor, it cannot consistently claim any protection thereunder.
As to the argument that appellee White cannot question the title of the city to the crops sued for unless he can show a derivative title from the United States Government as lessee of the lands, two answers thereto immediately appear. In the first place, under the authorities heretofore urged in this brief, it is plain that a landlord, after the execution of a lease, can complain only of injuries or tortious acts done to the freehold, and has no right to sue for injuries done to the possession, the right to recovery therefor being vested solely in the tenant. The removal of a growing crop plainly affects possession only and does not damage, interfere or affect in any way the freehold or reversionary interest of the landlord. Under the cases heretofore cited by us, the rule in Mississippi is that third parties who allegedly commit tortious acts against growing crops are answerable only to the tenant, and not to the landlord unless he has an interest therein by virtue of his lease.
In the second place, the proof shows a title to the crops in appellee White by reason of the permission granted to him by the United States Engineers, at the instance of the mayor, to enter the premises and gather the crops. The government made no objection to the removal of the crops by appellee White but rather its officers gave their consent to and acquiesced in the removal of all of the crops that were taken by him. These agents made not the slightest objection to the picking operations carried on by him.
But as we view this case, it is wholly unnecessary to establish in appellee White a derivative title to the crops by reason of a grant or transfer from the Federal Government. The essential question is whether or not the city has established its title to or right of possession in these crops. The city must necessarily recover on the strength of its own title or right of possession and not on the weakness of the title of appellee White. Unless the city can show where its rights have been invaded, it can have no standing in this court.
Argued orally by D.S. Strauss, for appellants, and by H.P. Farish and W.C. Keady, for appellees.
The question presented here for decision is the ownership of 88 bales of seed cotton and 550 bushels of corn, harvested by the appellee from land which the appellant had recently leased to the federal government as a site for the location and construction of a United States Army Airport without expressly reserving, under the terms of the written lease or otherwise, the growing crops thereon, and which leased premises were then being expeditiously converted to such use.
The material facts are not in dispute. The City Council of Greenville, acting pursuant to legislative authority, purchased certain tracts of Delta farm land located a short distance from the corporate limits of the city, consisting of nearly two thousand acres, to be leased to the United States of America as a military reservation and airport. There was included in the area so purchased a tract of 1,281 acres acquired by warranty deed from George Metcalfe and wife on which this cotton and corn were then being grown in an unmatured state. It is admitted that the title to these crops passed to the City of Greenville under the warranty deed, not having been reserved by the grantors therein. Moreover, the grantors were paid the sum of more than $8,000 as reimbursement to them for expenses incurred in the planting and cultivating of such crops, in addition to the purchase price of approximately $100 per acre for the land. Possession was delivered to the grantee on or about the middle of June, 1941, and the conveyance was executed shortly thereafter.
In the meantime on June 23, 1941, this land was leased to the Federal Government as aforesaid subject to renewal annually for a period of ninety-nine years, "to be used exclusively for a military reservation and airport, United States Army Airport." The lessee forthwith entered into the exclusive possession and occupancy of the leased premises and began cutting down, ploughing under and otherwise destroying growing crops in order to lay out airport runways, establish building sites, and to get the ground fully prepared for the purpose aforesaid. It was evidently contemplated that the lessee should have the right to destroy all of the crops then growing on the leased premises if deemed expedient or desirable in the full use and enjoyment of its rights under the lease to construct and operate such a military enterprise.
At the time of the execution of the lease contract, it appears from the testimony of the mayor, as witness on behalf of the appellant, that he thought the government might need to destroy the crops on the entire field, and not knowing where the construction work would start or over what area it would spread before the completion of the project, nothing was done by the appellant toward cultivating or attempting to preserve any of the crops on the land covered by the lease. No request was made at any time of the government officials in charge for permission on behalf of the lessor to salvage any of the crops, except that the mayor of the city, some thirty days after the cotton-picking season had opened, asked these officials to allow the appellee, W.G. White, to enter upon the premises and gather such of the crops as he should desire, intending that he should do so in his own right and the request being based upon the fact that the said White and his wife had "made definite concessions in establishing the northern boundary line between their property and that of the army air base." And this permission was accordingly granted by the government's agents in charge "so long as it did not interfere with the construction operations." It seems that these army officials were under the erroneous impression that the appellee, White, was to salvage the crops as the agent of the City Council, having overlooked the written suggestion of the mayor that White should be granted the right because of the definite concessions made in regard to his land line, as aforesaid.
At any rate, if it be assumed that the officials of the government, with full authority, granted the mayor permission to enter upon the land on behalf of the City of Greenville and harvest such crops as were not destroyed in the establishment of the airport, although they were not reserved under the lease, the license was never exercised. Apparently the City Council, as a whole, knew nothing about it; nor was there any meeting of the minds of the mayor and the federal authorities on whether the authority to enter upon the land and salvage a portion of the crops was to be granted to the appellee in his own right or as a representative of appellant. The mayor neither made the request nor intended to exercise the license on behalf of the city, but undertook to serve merely as an intercessor between the appellee and these ofcials in order that the appellee might act in his own right. Neither is it claimed that either the mayor or the appellee understood or intended that he was to act as the representative of the City Council in the matter, and, as heretofore stated, the other Councilmen were not advised in the premises.
While the mayor of the municipality was without authority to give away any of its property, it is also true that his action in this instance, together with the failure of the City Council as a whole to take any steps to salvage these crops until after the appellee had harvested them and stored the cotton in the compress, plus the further fact that they permitted such of the matured crops as were not salvaged by the appellee to go to waste and ruin on the land not then being used in the prosecution of the airport construction work, and had not retained or subsequently acquired any rights of ingress and egress in its own behalf for such purpose, clearly discloses a total absence of any intention whatever on the part of the lessor at the time of the execution of the lease to reserve such of the crops as should mature before it would become necessary for the lessee to destroy them in the exercise of its rights under the lease.
In 36 C.J. 106, it is stated that "where no prior tenant has a valid claim to the growing crops as emblements, such crops generally pass to the lessee having the right to immediate possession under his lease." This seems to be the well settled rule in regard to unmatured crops, such as those here involved were at the time of the execution of the lease in question. In the case of Frishkorn v. Ogden, 16 Ala. App. 358, 77 So. 970, 971, the court said: "It is well settled that a lease, like any other conveyance of a present estate in land, transfers to the lessee the right to the unmatured vegetable products growing upon the land at the time, unless they are expressly excepted from its operation. 2 Tiffany, Landlord Tenant, sec. 249; Edwards v. Perkins, 7 Or. 149; Willey v. Conner, 44 Vt. 68; Emery v. Fugina, 68 Wis. 505, 32 N.W. 236. Under the rule the crops passed to the lessee, Ogden." Other decisions are cited to the same effect in the footnote under Section 249 of 2 Tiffany, Landlord and Tenant. Our attention has been called to no cases to the contrary, except that our own investigation discloses that a few courts have upheld an oral reservation of a growing crop under a lease. Such a reservation would involve the application of the parol evidence rule under our decisions as relating to a general warranty, but in the case at bar no oral reservation is claimed. On the other hand, it is contended by the lessor in effect that there was an implied reservation of such crops, if any, that were not destroyed in the exercise of the right granted unto the lessee; that the lease is not a general one, but that the lessee is limited to utilizing the premises for the exclusive purpose of establishing a military reservation and airport; and that it therefore acquired only the right to destroy such portion of the crops as was necessary in the enjoyment of the rights expressly conferred. This argument is not without some force, but we are of the opinion that the limitation as to the purpose for which the premises were to be used is not a limitation as to what property passed under the lease. For instance, the limitation may be invoked to prevent the establishment of an enemy concentration camp thereon or any other project of a different character to that exclusively authorized by the terms thereof, but it should not be construed as a reservation of specific property which would ordinarily pass to the lessee in the absence of a provision to the contrary.
It is next urged that the appellee is not in position to dispute the city's title to the crops after having harvested the same under a license from the mayor, whether the license so to do was valid or not. The answer to this contention is that when the title of the property in controversy is in the government, the alleged tenant or licensee of some one else is not bound by the rule which forbids him to dispute the title of him by whose permission he enters upon the premises, since to so hold would be violative of public policy. Ellis v. Sutton, 126 Miss. 102, 85 So. 519; Welder v. McComb, 10 Tex. Civ. App. 85, 30 S.W. 822.
While the federal authorities who obtained the lease may not have intended to acquire on behalf of the government any beneficial interest in these crops as property of value, but rather the mere right to destroy such of them as were on that portion of the land being actually appropriated to the purpose of the lease, it is equally true that at the time of the execution of the lease the City Council did not intend to reserve the same. It is clearly established by the testimony that when the further cultivation of a crop in the Delta is abandoned at that season of the year one does not expect it to mature; that in the instant case the maturity of this cotton in its abandoned state was most unusual, and therefore not anticipated when the lease was made; that it was due to a rare crop season, followed by an infestation of army worms which enabled the rays of the sun to reach the stalks underneath a mass of tie-vines, cockleburs, coffee weeds, and other extraneous growth; and, wherefore, the appellant manifested no concern about the cotton and corn being salvaged by appellee until he had incurred an expense in excess of $3,500 and completed his harvest. Nor did the appellant make any effort to save such portion of the matured crops as were not gathered by the appellee on the land which had not then been appropriated by the government to the purposes of the lease.
Unless the fact that the lessor is a municipal corporation instead of an individual prevents the application of the rule, the decision of which question is unnecessary here and therefore pretermitted, the appellee would be entitled to hold the crops under the facts of the case on the theory of an abandonment by the appellant; but we prefer to rest the decision on the ground that the unmatured crops pass to the lessee of the land where the same are not reserved; that the right of action for injury to the possession, as distinguished from an injury to the reversionary interest, during the term of the lease belongs exclusively to the lessee; that "the landlord's rights, after the tenant's entry, are confined to the protection of his reversionary interest merely — that is, to the maintenance of actions for such injuries as would, in the ordinary course of things, continue to affect such interest after the determination of the lease — whether the injury is committed by a tenant, an undertenant, or a stranger, and whether the term shall have expired or not." 32 Am. Jur., Sec. 78, p. 91; 35 C.J., Sec. 540, p. 1212; 16 R.C.L., Sec. 106, p. 624, 2 Tiffany, Landlord and Tenant, Sec. 352, and Collins v. Wheeless, 171 Miss. 263, 157 So. 82.
The case of Agnew v. Jones, 74 Miss. 347, 23 So. 25, relied on by appellant, recognizes the right of a landowner, who consents to the construction of a building on his land to be used for a schoolhouse and a place of worship, to maintain an action of trespass against those who enter upon the land and remove the building without the landowner's consent, but the real basis for the recovery of actual damages would be the fact that the trespass resulted in an injury to the reversionary interest, since the building as realty would remain with the freehold in the event it ceased to be used for the purposes specified. Any other damages for the mere trespass alone is recoverable by him who has the possession or right of possession. The decision is not applicable to the case here under consideration, since no trespass involving an injury to the reversionary interest is complained of in the case at bar.
The appellant also invokes the rule that a conveyance by the sovereign must be construed most strongly in its favor, so that nothing will pass to the grantee or lessee except that which is expressly conveyed. But, even so, the sovereign in the lease here involved is the federal government as lessee, not the municipality as lessor.
Finally, it is urged that the appellee is a mere intruder. having acquired no valid title from any source whatsoever to the property in controversy, and that he should not, therefore, be allowed to retain the crop as against the appellant, the owner of the land. This contention, however, overlooks the fact that the burden of proof is upon the City Council as complainant to establish its own title to these crops as a condition precedent to its right to recover the same, or the value thereof, from the defendant White, who harvested the same in good faith and has an interest therein at least to the extent of his expenses, if not the ownership.
The decree of the court below dissolving the injunction against the negotiation of the warehouse receipts and dismissing the bill of complaint must therefore be affirmed.
Affirmed.