DISSENTING OPINION
OSBORNE, Judge.In 1951, Rose Burke Bisset leased a garage building in Paris, Kentucky, to Briggs Motor Company for a period of eight years. Among other provisions, the lease provided, “all improvements and fixtures made to and located in said building or upon the lot shall become the property of the lessor exclusively.” This lease was assigned to an organization known as Delaney, Inc., in 1955. The plaintiff, Goss, was a part-owner in Delaney. In 1958, Goss bought out the other owners and became the sole proprietor of the business. He continued as tenant under the lease, and, in 1959, a new lease was .made incorporating the above provision. During the course of the lease, the following fixtures accrued in the building: two neon overhead fixtures, one gas stove, one neon hall fixture, one gas heater, one large overhead neon fixture, one gas floor heater, one door mechanism with electric switches, one furnace (Bryant heater) seven neon fixtures, one Yale door hinge, extension cords, two spotlights, five steel work benches, one desk, one air compressor and lines, one Frigidaire water cooler, and one Homart window fan (property of Goss individually).
Upon termination of the lease, Goss made claim to these items and Mrs. Bisset filed an action for claim and delivery. The most able trial Judge heard the matter without a jury, and found as follows:
“In the first place there is a question of punitive damages, but no evidence to support such damages. The proof is that the defendant’s lease expired and that he refused to renew it for reasons of his own.”
“Coming to the real question in the case, there is no substantial or satisfactory proof before the Court that the plaintiff owned any of the property purchased by other people except that property that passed to her by terms of the lease with Mr. Goss, in which it was *56stipulated that all fixtures at the end of the lease would pass with the property. As to other items in question that do not classify as fixtures, there is no proof on the part of the plaintiff that they belong to her. Her former leases might have had the same stipulation in them, but the Goss lease specified that the fixtures purchased by others would be hers at the end of the lease, and, of course, the Court cannot adjudicate any potential claims of the people who bought the property in this suit between Mrs. Bisset and Mr. Goss, who are not before the Court.”
“For the above briefly stated reasons the Court dismisses the petition of the plaintiff with the direction that the property now in her hands and under her control shall remain there for a reasonable length of time, if other claimants appear.”
“As for the counter claim of the defendant, there is no proof as to his ownership of any of the property he took or now claims, except the fan built into a window which passed under the terms of the lease to the plaintiff, Mrs. Bisset.”
“Accordingly, the counter claim of the defendant is also dismissed, and it is further ordered by the Court that the costs in this case be divided equally between the two parties, s/ W. B. Ardery, Judge, Bourbon Circuit Court.”
I am of the opinion that the findings of the trial court should be affirmed. The items enumerated are covered by the lease. Certainly, they did not belong to Goss in any instance. If this case had been tried originally before this court the majority opinion might be justified, but such is not the case. This court only has appellate jurisdiction. Section 110 of the Constitution of Kentucky provides, “The Court of Appeals shall have appellate jurisdiction only, which shall be co-extensive with the State.”
This court interpreting the above provision has held that we are governed by those matters which occur in the trial court. See City of Jackson v. Terry, 302 Ky. 132, 194 S.W.2d 77. General Trial Jurisdiction in this state is invested in the circuit courts. Section 126 of the present Constitution, also article 4, section 17 of the Constitution of 1850. When these courts proceed within their jurisdiction, make proper findings of fact and conclusions of law, their judgments are binding and should not be disturbed by this court unless their actions are clearly erroneous and manifest an injustice. As late as 1952, we were following this principle. See Story v. Brumley, Ky., 253 S.W.2d 24 where Judge Stanley wrote:
“It is a fundamental rule of appellate practice that the finding of fact by a Judge trying a case without a jury is presumptively correct, and, as in other appeals, the appellant has the duty or burden of clearly showing error. Failing in such, the judgment will be affirmed. Citation of authority for this elementary rule is unnecessary.”
For other cases to the same effect, see Creech v. Louisville & N. R. Co., 217 Ky. 301, 289 S.W. 238; Weil v. B. E. Buffaloe & Co., 251 Ky. 673, 65 S.W.2d 704; Preferred Risk Fire Ins. Co. v. Neet, 262 Ky. 257, 90 S.W.2d 39; Cornett-Lewis Coal Co. v. Day, 312 Ky. 221, 226 S.W.2d 951.
The majority opinion in this case pays not the slightest heed to the findings of the trial court and proceeds to dispose of the case as if it had been initially tried before this court. This is an error that any appellate court can easily commit, but it does not persistently happen, in case after case, unless by design. Also in passing, I would like to observe that the majority opinion speaks of Trover and Replevin today under the Civil Rules of Procedure there is only one cause of action and I fail to see how the resurrection of these old ghosts of the past can serve any useful purpose save to he who would open his own graveyard.
For the foregoing reasons, I dissent from the majority opinion.