Opinion
No. 39999.
March 5, 1956.
1. Appeal — weight and appraisal of testimony — for Chancellor.
It was the province of Chancellor to weigh and appraise the testimony.
2. Dedication — easements — abandonment — generally.
An easement dedicated to the public may be abandoned by unequivocal acts showing a clear intent to abandon, provided such acts show destruction of the easement, that its legitimate use is impossible, or intention to abandon permanently, but mere misuser or nonuser of land dedicated to a public use does not work a reverter thereof or revive rights of dedicator.
3. Dedication — easements — abandonment — nonuser as not constituting — notice — individual adverse continued use — as constituting.
A city, to whose public use property has been dedicated by the owner, should not by nonuser, even if continued for years, be held to have relinquished or abandoned the easement, for to deprive the public of it there must be such open, notorious, and continued individual use of the property to give notice of adverse occupation and use.
4. Dedication — streets — designation on plat — sale of adjoining lots pursuant to — nonuser by city of portion of street — as not constituting abandonment.
Where owners of land adjoining street shown on plat sold and conveyed such lands by lots and blocks as they appear upon plat, street was thereby dedicated to city, and fact that city thereafter used only a portion of the land designated as a street did not deprive city of right to use entire street when necessary for convenience of the public.
5. Dedication — streets — levy and collection of taxes by city — as proof of abandonment.
Levy and collection of taxes on a portion of land dedicated to public use and accepted by city as a street, though a factor to be considered in determining abandonment, did not in itself prove an abandonment of street by city.
6. Dedication — streets — evidence — insufficient to establish abandonment of unused portion of street.
In suit involving title to land constituting a portion of street dedicated to public use, evidence supported finding that city had not abandoned or released its easement for street purposes over and across land constituting portion of dedicated street extending from intersecting street approximately 150 feet to Gulf of Mexico.
ON MOTION TO CORRECT JUDGMENTMarch 26, 1956 86 So.2d 46
7. Appeal — remand for disposition of fund paid into registry of court.
Where Chancery Court made no disposition of fund deposited in registry of court by defendant who was not a party to the appeal, case would be remanded for proper disposition of such fund.
Headnotes as revised by Roberds, P.J.
APPEAL from the Chancery Court of Harrison County; D.M. RUSSELL, Chancellor.
J.D. Stennis, Jr., Biloxi; Morse Morse, Gulfport, for appellant.
I. An application to intervene must be made with due diligence, all of the circumstances considered; and an intervention should not be allowed if it would operate necessarily to seriously retard the principal suit. The petition should not be allowed at all in any case when the decrees, orders or process in the original suit will not cause the proposed intervenor either to gain or to lose by their direct legal operation and effect. Where the city, not named a party to the suit, has not sought to intervene for several years after its officials had knowledge of the suit, and where any decree entered therein could not affect its rights, if any, and its intervention will unnecessarily increase the costs in said proceedings and delay the hearing, a motion to strike said application to intervene should be sustained. Bush v. Quick, 90 Miss. 32, 43 So. 70; Whitney v. Bank of Greenville, 71 Miss. 1009, 15 So. 33; Slattery v. Renoudet Lbr. Co., 125 Miss. 229, 87 So. 888; Skrmetta v. Moore, 202 Miss. 585, 30 So.2d 53; Smith v. Gale, 144 U.S. 509; Leary v. United States, 224 U.S. 567; In re The American Eagle, 28 F.2d 1000; Merriam v. Bryan, 36 F.2d 578; Hibernia Savings L. Soc. v. Churchill, 128 Cal. 633, 61 P. 278; Willet v. Jordan, 1 Cal.2d 461, 35 P.2d 1025; Keller v. Wilson Co., 194 A. 45; Pinkham v. Pinkham, 296 Ill. App. 650, 16 N.E.2d 697; Forsyth v. American Maise Products Co., 59 Ind. App. 634, 108 N.E. 622; Peachout v. Des Moines Broad-Gage St. Co., 75 Iowa 722, 28 N.W. 145; Kassing v. Walter, 65 N.W. 832; Reard v. Freiden, 184 Iowa 823, 129 N.W. 245; First Trust Joint Stock Land Bank v. Cuthbert, 215 Iowa 718, 245 N.W. 810; Gibson v. Ferrell, 77 Kan. 454, 94 P. 783; White v. Pond Coal Co., 201 Ky. 212, 256 S.W. 30; Graves v. Trimble, 10 Ky. P.S. 893; Walker v. Dunbar, 7 Mart N.S. (1a) 586, 18 Am. Dec. 248; Urania Lumber Co. v. Louisiana Tax Comm., 171 La. 973, 132 So. 650; New York Bank Note Co. v. Kidder Pest Mfg. Co., 192 Mass. 391, 70 N.E. 463; Zeitinger v. Hargadidnd-McKittrick Dry Goods Co., 298 Mo. 461, 250 S.W. 913; Hoag v. Rosenwald, 31 N.M. 443, 247 P. 306; MacArdell v. Olcott, 70 N.Y.S. 356, 62 App. Div. 127; Callanan v. Keesville, 95 N.Y.S. 513, 48 Misc. 476; Baker v. Deichman, 185 Okla. 452, 94 P.2d 246; Ponkonogay v. Levin, 106 Pa. Super. 448, 162 A. 315; Beck v. O'Loughlin, 87 Pitts. 150; Wilkerson v. Davis, 264 S.W. 545; Longmire v. Yakima Highlands Irrig. Land Co., 95 Wn. 302, 163 P. 782; Griffith's Miss. Chancery Practice, Secs. 410-11.
II. The fact that the Supreme Court held that since the city was not a party to the litigation, any admissions or concessions made by the parties do not bind the city but may be accepted as binding all the actual parties (there the appellees and the appellant) did not justify the Trial Court interpreting this as a direction by the Supreme Court that upon the return of the case to the Trial Court that the city be made a party, and it was error for the Trial Court to seek to limit the testimony on behalf of the party in actual possession of the property to a denial of the testimony of the city's witnesses. Skrmetta v. Moore, supra.
III. In a case where there are two separate intervenors, one who has put his evidence in chief before the Court before the other intervenes is not restricted to a simple denial of the testimony introduced by the other where the circumstances require proof of what has actually been done in respect to the first intervenor having taken possession of the property in question to the exclusion of all other parties, including the second intervenor. 39 Am. Jur., Sec. 80 p. 952; 53 Am. Jur., Secs. 121-22 pp. 107-08.
IV. While a municipal corporation acquires an easement over streets which are not expressly dedicated as such, when the proprietor of lands within a municipality lays out streets in a subdivision and sells the property therein by lot and block number with reference to said plat, and the municipality opens up said streets and paves them, and they are used by the public for a long number of years, where a part of such street is not susceptible of being used as a street and is not used as such for a period of from twenty to one hundred years, and such part of such street is entered upon by the owner of the property on both sides of such street, and such owner and his lessees made improvements thereon, even to the extent that it might be then used as a street, with such improvements being made with the knowledge and acquiescence of the municipal authorities with said authorities making no claim to said property as a street for more than twenty years, seeing the abutting property owner in possession thereof going to great expense to make said property usable for his private business, and later assessing said property for taxes and collecting taxes thereon, such municipality will be estopped from claiming such land, within the platted portion of such street, but not used as a street, as a part of such street. The easement acquired over the portion of said street, acquired by mere user will be extinguished by mere nonuser. Savannah v. Barnes, 148 Ga. 317, 96 S.E. 625, 9 A.L.R. 419-22; Babcock v. Gregg, 55 Mont. 317, 178 P. 284; Matthews Slate Co. v. Advance Industrial Supply Co., 172 N.Y. Supp. 830; Mark v. West, 151 N.Y. 453, 45 N.E. 842; In re Yonkers, 117 N.Y. 564, 23 N.E. 661; State v. Reybold, 5 Harr (Del.) 484; Grand Trunk Western R. Co. v. City of Flint (Mich.), 55 F.2d 384; Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625; Raritan Water Power Co. v. Veghte, 21 N.J. Eq. 463; Roden v. Capehart, 195 Ala. 29, 70 So. 756; San Francisco v. Calderwood, 31 Cal. 585, 91 Am. Dec. 542; Smith v. Worn, 93 Cal. 206, 28 P. 944; San Francisco v. Main, 23 Cal.App. 86, 137 P. 281; Kuecken v. Voltz, 110 Ill. 264; Illinois Cent. RR. Co. v. Houghton, 126 Ill. 233, 18 N.E. 301, 1 L.R.A. 213, 9 Am. St. 581; Swedish Evangelist Lutheran Church v. Jackson, 229 Ill. 506, 82 N.E. 348; Vanalia R. Co. v. Wheeler, 181 Ind. 424, 103 N.E. 1069; Reed v. Casser, 130 Iowa 87, 106 N.W. 383; Presbyterian Church v. Harken, 177 Iowa 195, 158 N.W. 692; Edgerton v. McMullen, 55 Kan. 90, 39 P. 102; Raedell v. Anderson, 98 Kan. 216, 158 P. 45; Skaggs v. Carr, 178 Ky. 849, 200 S.W. 27; Johnson v. Clark, 22 Ky. L. 418, 57 S.W. 474; Clay v. Kennedy, 24 Ky. L. 2034, 72 S.W. 815; Crigler v. Newman, 29 Ky. L. 27, 91 S.W. 706; Marigny v. Pontchartrain R.C., 15 La. Ann. 427; Adams v. Hodgkins, 109 Maine 361, 84 A. 530, 42 L.R.A. (N.S.) 741; Wooster v. Fiske, 115 Maine 161, 98 A. 378; Canton Co. v. Baltimore, 106 Md. 620, 93 A. 144; Philadelphia B. W.R.C. v. Baltimore, 131 Md. 368, 102 A. 471; White v. Crawford, 10 Mass. 183; Emerson v. Wiley, 10 Pick. 310; Hurd v. Curtis, 11 Cush. 542, Bannon v. Angier, 2 Allen 128; Warshauer v. Randall, 109 Mass. 586; Chandler v. Jamaica Pond Acqueduct Corp.,
125 Mass. 544; Smith v. Langewald, 140 Mass. 205, 4 N.E. 571; King v. Murphy, 140 Mass. 254, 4 N.E. 566; Willette v. Langhaar, 212 Mass. 573, 99 N.E. 466; Hartt v. Rueter, 223 Mass. 207, 111 N.E. 1045; Day v. Walden, 46 Mich. 575, 10 N.W. 26; Lathrop v. Elsner, 93 Mich. 599, 53 N.W. 791; Wilder v. St. Paul, 12 Minn. 192, Gil 116; Hatton v. Kansas City C. S.R. Co., 253 Mo. 660, 162 S.W. 227; Ballinger v. Kinney, 87 Neb. 342, 127 N.W. 239; Perth Amboy Terra Cotta Co. v. Ryan, 68 N.J.L. 474, 53 A. 699; Johnston v. Hyde, 33 N.J. Eq. 632; Dill v. Board of Education, 47 N.J. Eq. 421, 20 A. 739, 10 L.R.A. 276; Mason v. Ross, 75 N.J. Eq. 136, 71 A. 141; Supplee v. Cohen, 80 N.J. Eq. 83, 83 A. 573, 81 N.J. Eq. 500, 86 A. 366; Street v. Griffiths, 50 N.J.L. 656, 14 A. 898; Smylee v. Hastings, 22 N.Y. 217; Woodruff v. Paddock, 130 N.Y. 618, 29 N.E. 1021; Welsh v. Taylor, 134 N.Y. 340, 31 N.E. 896, 18 L.R.A. 535; Rupprecht v. St. Mary's Roman Catholic Church Sec., 198 N.Y. 576, 92 N.E. 1101, 131 App. Div. 564, 115 N Y Supp. 926; Corning v. Gould, 16 Wend. 531; McCullough v. Broad Exch. Co., 101 App. Div. 566, 92 N.Y. Supp. 533, 184 N.Y. 592, 77 N.E. 1191; Andrus v. National Sugar Refining Co., 93 App. Div. 377, 87 N.Y. Supp. 671, 183 N.Y. 580, 76 N.E. 1088; People ex rel. Washburn v. Gloverville, 128 App. Div. 44, 112 N.Y. Supp. 387; Heughes v. Galusha Stove Co., 118 N.Y. Supp. 109; Tyler v. Cooper, 47 Hun. 94, 124 N.Y. 626 26 N.E. 338; Lewisohn v. Lansing Co., 51 Misc. 274, 100 N.Y. Supp. 1073, 119 App. Div. 393, 104 N Y Supp. 543; In re West 214th Street, 106 App. Div. 575, 96 N Y Supp. 557; In re New York, 73 App. Div. 394, 77 N.Y. Supp. 31; Brady v. Brady, 31 Misc. 411, 65 N.Y. Supp. 621; Lambert v. Huber, 22 Misc. 462, 50 N.Y. Supp. 793; Marshall v. Wenninger, 20 Misc. 462, 46 N.Y. Supp. 670; Hoffman v. Doris, 83 Oregon 625, 163 P. 972; Tudor Boiler Mfg. Co. v. I. E. Greenwald Co., 26 Ohio C.C. 356; Yeakle v. Nace, 2 Whart. 123; Erb v. Brown, 69 Pa. 216; Bombaugh v. Miller, 82 Pa. 203; Richmond v. Bennett, 205 Pa. 470, 55 A. 17; In re Greenmount Cemetery Company's Appeal, 1 Sadler 371, 4 A. 528; Citizens Electric Co. v. Davis, 44 Pa. Super. 138; Whitney v. Nelshans, 50 Pa. Super. 422; Nickels v. Hand Cornet Band, 52 Pa. Super. 145; Com. v. Zimmerman, 56 Pa. Super. 11; Weaver v. Getz, 16 Pa. Super. 418; Stuart v. Rosengarten, 23 Pa. Dist. 548; Faulkner v. Rocket, 33 R.I. 152, 80 A. 380; Bentley v. Root, 19 R.I. 205, 32 A. 918; Bowen v. Team, 6 Rich L. 298, 60 Am. Dec. 127; Dupont v. Charleston Bridge Co., 65 S.C. 524, 44 S.E. 86; Boyd v. Hunt, 102 Tenn. 495, 52 S.W. 131; Walton v. Harigel (Tev.), 183 S.W. 785; Watts v. C.I. Johnson B. Real Estate Corp., 105 Va. 519, 54 S.E. 317; McAdam v. Benson Logging Lumbering Co., 57 Wn. 407, 107 P. 187; Woolridge v. Coughlin, 46 W. Va. 345, 33 S.E. 233; Snell v. Levitt, 110 N.Y. 595, 18 N.E. 370, 1 L.R.A. 414; Cox v. Forrest, 60 Md. 74; Goddwin v. Bragaw, 87 Conn. 31, 86 A. 668; Jessop v. Kittanning Greenwald Co., 225 Pa. 589, 74 A. 554; Tudor Boiler Mfg. Co. v. I. E. Greenwald Co., supra; Bentley v. Root, supra; Rouse v. Saucier's Heirs, 166 Miss. 704, 146 So. 291.
V. The Court should not attempt to adjudicate matters not before the Court, and even though an action was pending in the County Court of Harrison County, between the State Highway Commission and all of the parties in this cause, the monies paid for a portion of the land in controversy should have been left in the registry of the County Court until a final determination of this cause by this Court.
VI. When others were litigating about the title to lands which appellant had had possession of for more than twenty years, and he came into Court to prevent his title from becoming further beclouded and to remove clouds which said litigants had placed on his title, whether he succeeded in establishing an absolute title to said property, at least a part of which had been laid out as a street, if he established the fact that he had special rights in said property as the abutting property owner on either side, it was error to tax him with any part of the Court costs. City of Jackson v. Welch, 136 Miss. 223, 101 So. 361.
VII. Municipal authorities will not be permitted to sit idly by and see an abutting property owner, at great expense to himself, make valuable improvements on property which is not susceptible of being used as a street without the expenditure of a large sum of money, to acquiesce in his making said improvements, for a long number of years to consider said property not a part of a street to assess the same for taxes and collect taxes thereon, and to then come in and claim the abutting property owner's improvements at a great loss to him. Mark v. West, supra; In re Yonkers, supra; Snell v. Levitt, supra; Dabney v. City of Portland, 124 Oregon 54, 163 P. 386; 26 C.J.S., Secs. 63, 65 pp. 151-52, 156.
Thos. J. Wiltz, Biloxi, for appellees.
I. There was no abandonment of the portion of the street in controversy, in consideration of the facts adduced and the applicable principles of law involved. Money v. Wood, 152 Miss. 17, 118 So. 357; Rouse v. Saucier's Heirs, 166 Miss. 704, 146 So. 291; Briel v. City of Natchez, 48 Miss. 423; Indianola Light, Ice Coal Co. v. Montgomery, 85 Miss. 304, 37 So. 958; Shoemaker v. Coleman, 94 Miss. 619, 625, 47 So. 649; City of Meridian v. Poole, 88 Miss. 108, 40 So. 548; City of Ellisville v. Webb, 151 Miss. 302, 117 So. 836; 16 Am. Jur., Secs. 65, 86 pp. 412, 423; Vol. XII, McQuillin on Municipal Corporations, Sec. 33.70 p. 766.
II. The decree of the Court below must be affirmed, because the case involved factual issues and conflicting evidence, which were fully resolved against the appellant by the Chancellor in the Court below, the decree clearly being supported by the evidence; and it cannot be said in any event that the findings of the Chancellor were manifestly wrong or erroneous, but were clearly supported by the evidence. Nixon v. Town of Biloxi (Miss.), 5 So. 621; 16 Am. Jur., Sec. 75 p. 418; Griffith's Miss. Chancery Practice, Sec. 674; Vol. XII, McQuillin on Municipial Corporations, Sec. 33.78 p. 789.
The subject of this litigation is the title to a small parcel of land described as that part of Oak Street extending from the south side of East Beach Street (Formerly Front Street) south to the Gulf of Mexico. Oak Street runs north and south and is sixty feet wide. The parcel here involved is the south end of Oak Street extending to the Gulf, apparently a distance of about one hundred and fifty feet. This litigation was begun by a bill in chancery filed by Mrs. L.G. Moore against Lewis E. Curtis undertaking to require Curtis to convey to her title to said lot. Skrmetta intervened in that proceeding, asserting title in himself, and assumed the attitude of complainant therein. When Skrmetta rested his case, the chancellor sustained a motion to exclude the testimony he had offered and dismissed his bill. Skrmetta appealed to this Court. We reversed and remanded the cause for another trial. Skrmetta v. Moore, et al., 201 Miss. 618, 30 So.2d 53. It appeared, in the course of the former trial, that the City of Biloxi might have an easement over said parcel of land for street purposes. When the cause was remanded, the City of Biloxi was permitted to become a party to the litigation. The chancellor, at the close of the second trial, held that said City did have an easement over the parcel of land for street purposes. From that decree Skrmetta appealed to this Court. Neither Mrs. Moore nor Mr. Curtis appealed; therefore, the parties before us now are Skrmetta and the City of Biloxi. The question is whether the chancellor was justified in holding that the City of Biloxi has an easement for street purposes over said strip of land. And that question narrows itself, under the former and the present proceedings, to the question whether said City has abandoned or in any manner released its easement for street purposes over and across said parcel of land. We make this statement because this Court, on the former appeal and as the record then disclosed the facts, found that the owners of the property adjoining on Oak Street, both on the east and the west thereof, had conveyed such adjoining property by reference to Oak Street, as shown on a public plat, and as being bounded on the south by the Mississippi Sound, or the Gulf of Mexico, so as to be a dedication for street purposes of the parcel here in dispute as a part of Oak Street, and that the disclosed facts in said former trial established an acceptance and user by the City of the parcel in dispute as a public street. On retrial the record on the former trial, which this Court on the former appeal thought established an acceptance and user by the City of the easement over the disputed parcel of land, was introduced in evidence. In addition to that other testimony was introduced by the City on the retrial which supported said conclusion and the conclusion of the chancellor on the second trial to the same effect. Therefore, the specific question before us now is whether there is substantial testimony to support the finding of the chancellor that the City had not released or abandoned said easement rights.
(Hn 1) We deem it unnecessary to detail all of the testimony. The record consists of four volumes. There was testimony to the effect that the adjoining property owners recognized the street easement rights of the City in the property; that for thirty-two years the City had charge of the street; that the south end of the street was usable, and was used, as such; that the City built up the street by placing shells thereon, repairing and draining it; that the public generally had traveled and used this parcel of ground as a street, especially in going to and from the water front of the Gulf; that no one interfered, or undertook to stop, such use; that the property was never assessed for taxes until a short time before the beginning of this litigation, and then it was assessed through error. Mr. Elmer Williams, a witness for Skrmetta, testified that Oak Street extended south to the edge of the waters of the Gulf of Mexico. There is no official record of the City indicating an abandonment of the south end of Oak Street. Mr. Skrmetta never paid any city taxes on the property until after this litigation was instituted. Mr. Tucei testified that he was employed by the City in the Street Department and that the City worked, drained, and kept Oak Street in repair, including the part thereof in controversy; that he knows this continued for twenty years and up to the time he ceased to be superintendent of streets some four years before he testified. A city sewer was laid under and across the property. Mr. Collins, a civil engineer, testified that Oak Street extends south of East Beach Street. There was testimony that Skrmetta, in the course of time, made some improvements on the property, but this, as appears from other testimony, was to serve his private purpose of ingress and egress to and from his nearby industrial plant. Some of the foregoing testimony was contradicted by other testimony, but it was the province of the chancellor to weigh and appraise the testimony.
(Hn 2) "An easement dedicated to the public may be abandoned by unequivocal acts showing a clear intent to abandon. But the acts must show destruction of the easement, that its legitimate use is impossible by an act of the owner, or an intention to abandon permanently * * *". 16 Am. Jur., Section 65, p. 412. "It is well settled that a mere misuser or nonuser of land dedicated to a public use does not work a reverter thereof and cause the rights of the dedicator to revive." 16 Am. Jur., supra. The syllabus in Briel v. City of Natchez, 48 Miss. 423, deduces this as the rule: (Hn 3) "A City, to whose public use property has been devoted by the owner, should not by nonuser, even if continued for years, be held to have relinquished or abandoned the easement. To deprive the public of it there must be such open, notorious and continued individual use of the property to give notice of adverse occupation and use."
(Hn 4) The property in controversy is a part of a plat of the subdivision of Summerville in Biloxi. Owners of land adjoining Oak Street have sold and deeded their lands by lots and blocks as they appear upon that plat and have thereby dedicated Oak Street to the City. "Where the owner impliedly dedicated a strip of land for a street by platting his land into lots and streets, making a map thereof and selling the lots as laid out on the map, the fact that the municipality, for more than ten years thereafter, used only a portion of the land designated as a street, did not deprive it of the right to use the entire strip for a street when necessary for the convenience of the public." Syllabus in Indianola Light, Ice and Coal Co., et al. v. Montgomery, et al., 85 Miss. 304.
The land in controversy here is the south end of Oak Street bordering on the water front. In the Indianola case, supra, the property in controversy was what would be included within the street if extended across a bayou, access to which was by a bridge across the bayou. In other words, the part of the street across the bayou had not been used by the public nearly so much as that part of the street approaching the bayou. That appears to be similar to the situation here. That part of Oak Street north of East Beach Street has been used by the public much more than has the part of Oak Street south of East Beach Street to the Gulf. The claim was made in the Indianola case that the part of the street across the bayou which had to be reached by the narrow bridge had been abandoned as a public street, but the lower court held, and this Court affirmed, that there had been no abandonment of the part of the street used less by the public than the remainder of the street.
(Hn 5) Skrmetta said he paid taxes on the parcel in question. That was done under the conditions as heretofore stated. However, this does not prove an abandonment of the street by the municipality. "If there has been a dedication and acceptance, the dedication cannot be vacated by the mere levy and collection of taxes on property as on private property." 16 Am. Jur., Section 96, p. 423. Such payment is only one factor to be considered by the trial court in determing whether, in fact, there has been an abandonment. 16 Am. Jur., Section 86, p. 423.
(Hn 6) Without prolonging the discussion, we think the chancellor had ample testimony to support his conclusion that the City of Biloxi had an easement for street purposes over and across the parcel of land in controversy.
Skrmetta has argued a number of other questions, but none constitute reversible error, if error at all.
Affirmed.
Hall, Kyle, Holmes and Gillespie, JJ., concur.
(Hn 7) We treat the instrument which Mrs. L.G. Moore has filed and designated as a suggestion of error as a motion to correct judgment, and it appears that the lower court did not dispose of all issues before it in that it made no disposition of the sum of $470.00 deposited in the registry of the court by Lewis E. Curtis. Under the circumstances, the case should be remanded to the lower court for proper disposition of the fund. To that extent we sustain the motion to correct judgment and modify in our former opinion.
MOTION SUSTAINED IN PART.
Roberds, P.J., and Hall, Lee and Holmes, JJ., concur.