The opinion
On Motion for Rehearing.
Immediately upon rendition of judgment by this court affirming, the judgment of the trial court, at our request the appellants filed motion far rehearing of the cause, and we immediately certified the case to the Supreme Court of the state of Texas, in which certificate we submitted two questions, as follows:
(1). Is the deed from S. B. Burnett to the City of Forth Worth ambiguous, so as to let in parol testimony to explain it and aid in construing it ?
(2). If said deed is not ambiguous, then do its terms forbid, by express words or by clear implication, the erection and maintenance by the City of Fort Worth of a public library on the land embraced in the said Burnett Memorial Park?
On March the 18th, A. D. 1938, in an opinion rendered by the Commission of Appeals and adopted by the Supreme Court of Texas, 114 S.W.2d 220 , the first question certified was answered “No,” and the second question was answered “Yes.”
In the original opinion we specially cited and quoted from City of Hopkinsville et al. v. Jarrett et al., 156 Ky. 777 , 162 S.W. 85 , 50 L.R.A.,N.S., 465. We considered the opinion in that case a leading authority, and, being pressed for time, simply stated the fact that such case had been followed and cited a number of times. We now desire to show that such opinion was specifically approved by the Supreme Court of Kentucky in Woman’s Hospital League v. City of Paducah, 188 Ky. 604 , 223 S.W. 159 , Massey v. City of Bowling Green, 206 Ky. 692 , 268 S.W. 348 , and City of Covington v. Union Light, Heat & Power Co., 243 Ky. 591 , 49 S.W.2d 580 ; by the appellate court of California in Hall v. Fairchild-Gilmore-Wilton Co., 66 Cal.App. 615 , 227 P. 649 ; by the Supreme Court of Tennessee in Board of Park Commissioners v. City of Nashville, 134 Tenn. 612 , 185 S.W. 694 ; by the Supreme Court of Michigan in Board of Education v. Gilleland, 191 Mich. 276 , 157 N.W. 609 , L.R.A.1916E, 468; and by the Court of Appeals of New York in Williams v. Gallatin, 229 N.Y. 248 , 128 N.E. *442 121 , 18 A.L.R. 1238 , Campbell v. Town of Hamburg, 156 Misc. 134 , 281 N.Y.S. 753 , and Beth Israel Hospital Ass’n v. Moses, 275 N.Y. 209 , 9 N.E.2d 838 ; and by the federal court in Southern Pacific Co. v. Reno, D.C., 257 F. 450 .
It is suggested in the motion for rehearing that in affirming the judgment of the trial court we have gone too far and that thereby the matter of the discretionary powers of the Fort Worth city council to make any changes in the improvements in the said park have been finally adjudicated by the trial court and by us. The position is untenable. Nothing was before the trial court save the threatened action of the appellants to remove and destroy improvements, now existent in the park, for the purpose of erecting a public library on the premises. The trial court temporarily enjoined such acts and by its order maintained the status quo until the case could be finally determined by the trial court. We affirmed that judgment.
The issue raised in the motion for rehearing was not raised before the trial court, and therefore is not before us.
The motion for rehearing is overruled.