author: Lyle Bbown, Justice. JohN A. FoglemaN, Justice,

text:
    R. T. Ueltzen et al v. Billy Roe and Neva Roe Sowl
    5-4121
    411 S. W. 2d 894
    Opinion delivered February 27, 1967

      David 0. Partain, for appellant.

      Batchelor & Batchelor, for appellee.
   Lyle Bbown, Justice.

This is a suit to quiet title "brought by plaintiffs-appellees, Billy Roe and Neva Roe Sowl, brother and sister. They brought suit against the six brothers and sisters of their mother, Maude Roe. Basing his findings on adverse possession, estoppel, and laches, the trial court vested title in appellees. Appellants contend, first, that the Roe family failed to establish hostile possession, and, second, that no notice of adverse claim was ever brought home to appellants..

Here is the opinion of the trial court. It sets out the issues with clarity and of course states the factual conclusions, together with the law found to be applicable:

OPINION

The land in controversy, a farm of about 277 acres lying southeast of the town of Graphic in Crawford County, Arkansas, was owned by Laura and R. R. Uelt-zen, wife and husband, prior to 1900. To this union six children were born, namely, Maude Roe, plaintiffs’ mother, R. T. Ueltzen, Onenta Ward, W. R. Ueltzen, Chloe Durham, and Mae Henzig. Defendant, Emma Cash, is a daughter of R. R. Ueltzen by a former marriage.

This family lived on the property until about 1913 or 1914, when B. B. Ueltzen sold all his personal property and moved to Oklahoma with his family. What happened to the property from then until Maude Boe took possession and raised her family there is not clear. B. B. Ueltzen died, seized and possessed of this land about 1925 or 1926; and his wife, Laura, continued to live in Oklahoma. In 1929 this property went delinquent and was sold for nonpayment of real estate taxes. At this time, plaintiffs and their mother- were living on ‘ ‘ Grant Farm” on Highway 64 east of Mulberry. During the time the property was in possession of persons under the tax forfeiture, all improvements were destroyed.

On April 3, 1934, Maude Boe obtained a Bedemption Deed from the State of Arkansas to this property and apparently went into possession. Here the testimony is in conflict. Plaintiffs testified that Mrs. Boe contacted her mother, Laura, and her brothers and sisters in Oklahoma, requesting them to contribute to the amount of money necessary to redeem the land; but they refused and agreed with their mother, Maude Boe, that if she would redeem the property herself, she could have it as her own property. To corroborate this testimony, Amos Watkins testified that he was an old friend of the family and about two or three years ago he met Billy Boe and B. T. Ueltzen at the store at G-raphie and in the conversation asked B.' T. Ueltzen what had happened to the old home place, and he stated to him [Watkins] that he and his brothers and sisters had given the property to their sister, Maude Boe. This is denied by the defendant, B. T. Ueltzen, and by Mae Henzig, who testified that they had not given the property to Maude Boe, but had agreed that Mrs. Boe put up the money and redeem the property in lieu of' rent.

Laura Ueltzen died intestate in Oklahoma about 1936 or 1937.

Maude Boe and her husband, shortly after 1934, moved into an old log cabin on the place, danbed the cracks with clay, and raised their family there.

Between 1934 and 1940, plaintiffs ’ father built a log share cropper’s house some distance west of the log cabin where they lived. Plaintiff Sowl later lived in this house.

About 1942, plaintiffs and their parents built a frame farm home upon this land, which was still farther west of the old log home and on the county road. They also built a barn.

From April 1934 to about 1947, the year plaintiffs’ father died, the Roes had cut from this land all merchantable timber, farmed the land for their living, keeping and using all benefits from the land.

About 1947, plaintiff Billy Boe built a two-room home on the land in controversy.

Plaintiffs testified, and the defendants did not deny, that they visited from time to time in all of these homes, spent nights there, and knew of the making of all improvements to which they did not contribute anything or claim any benefits from the farm.

On June 15, 1956, plaintiffs’ mother, Maude Roe, executed and delivered to Billy Roe and Neva Roe Sowl a warranty deed to all of said property, which deed was duly recorded shortly thereafter. About two years later, Maude Roe died, intestate.

In the latter part of 1957, Billy Roe constructed a new frame farm home on the land, where he now lives.

Plaintiffs’ mother, Maude Roe, paid all taxes upon the land in controversy for the years 1933 to 1955, inclusive, and plaintiffs have paid the taxes for the years 1956 through 1964.

Plaintiffs and defendants are tenants in common. Plaintiffs claim title to the entire tract by adverse possession. It mnst be remembered at tbe outset that the possession of one tenant in common is the possession of all tenants. Franklin v. Hempstead County Hunting Club, 216 Ark. 927, 228 S. W. 2d 65 ; Ashley v. Garrett, 218 Ark. 126, 234 S. W. 2d 513 ; Woolfolk v. McDonnell, 215 Ark. 34, 219 S. W. 2d 223 ; Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690. And, further, in view of the family relation stronger evidence of adverse possession is required than in the case where no snch relation exists. McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 ; Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 ; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640.

It is also well established that in order for the possession of a tenant in common to be adverse it is incumbent upon him to bring home to his coternants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. McGuire v. Wallis, supra ; Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353 ; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.

The court is faced with a difficult problem indeed. For as the court said in Linebarger v. Late, 214 Ark. 278, at p. 282, 216 S. W. 2d 56 :

“Where property is held in joint tenancy, the possession of one is deemed to be conjunctive with others, hence there is mutuality of seisin; and this status presumptively continues until some affirmative act by the joint tenant who holds for all is of such a nature as to warn other proprietors that the status has shifted from mutuality to hostility. This may be done in so many ways that judges and text writers have not undertaken an enumeration. What in one case would be sufficient as a warning might not be enough in another. Relationship of the parties, their reasonable access to the property and opportunity or necessity for dealing with it, their right to rely upon conduct and, assurances of the tenant in possession, kinship, business transactions directly or incidentally touching the primary subject matter, silence when one should have spoken, natural inferences arising from indifference — these and other means of conveying or concealing intent may be important in a particular case, but not controlling in another; for after all what a designated plaintiff or defendant had in mind when he or she consummated an act or engaged in a course of conduct often depends upon the personal equation and the individual’s method of expression. There can, therefore, be no ‘open and shut’ rule by which purpose can be measured.”

In order to arrive at a correct solution, it is necessary to look at the evidence as a whole using as a yardstick the rules above set forth.

In the cited case of Linebarger v. Late, decided in 1948, the court took' judicial knowledge that 1930 and the years immediately following were periods of economic stress when property values generally were adversely affected. The testimony that Maude Roe tried unsuccessfully to get her mother, brothers., and sisters to contribute to the fund necessary to redeem this land, coupled with the testimony of Amos Watkins to the effect that R. T. Ueltzen told him that he and his brothers and sisters had given the old home place to Maude Roe, compels the court to consider this as a circumstance in the chain of events creating a natural inference of indifference on their part. In 1934 money was scarce and it is unbelievable that Maude Roe would have raised the money alone to redeem this land for the meager future rent from a farm unimproved and at a time when there was no market for products from the operation of such a farm.

The tax deed was. recorded. It is fair to say that the defendants knew of the éxecution and recording of this deed. To establish adverse possession against his cotenants the plaintiffs have the burden of proving either that they brought notice home to them or that their conduct was so open and unequivocal that they should have known of the hostile claim. There is no testimony that the plaintiff did in so many words say to the defendants, “We are claiming this land as our own,” but the rule is in the conjunctive. So far, learned counsel for the parties have failed in their excellent briefs to cite a decision or text that defines “Such acts or conduct so unequivocal and notorious in character that notice will be presumed,” and the court has found none. Possession alone is insufficient. Payment of taxes, while strong evidence of a claim of title, it alone is insufficient. So, as said before, the evidence as a whole must be examined and each case stands on its own bottom.

Significant in this case, Maude Roe, in 1956, executed a warranty deed to all of the land to plaintiffs, which deed was duly recorded. Up to this time fairly substantial improvements had been made on the land and after this deed, and more than seven years before the commencement of this action, Billy Roe built his own substantial frame home upon this property. The defendants visited in this home and the other homes and knew of these improvements.* * * *

After the entry of Billy Roe under the deed from his mother and more than seven years from that date, some oil company was about to drill for oil and gas under a lease from plaintiffs. An examiner of the abstract of title made a requirement of protective leases from the defendants. For the first time in thirty years the defendants made claim to an interest in this land.

Our courts have ordinarily held that to constitute estoppel, adverse possession or laches with reference to a cotenant, that no one or two specific acts, and sometime even more, necessarily, of themselves amount to a disseisin, but the following each are items to be considered in determining whether the possession is adverse, or the individual is estopped or guilty of laches and they include such acts as (1) possession of the property; (2) payment of taxes; (3) enjoyment of rents and profits; (4) making of improvements (particularly of a substantial nature) ; (5) payments of insurance made payable to himself; (6) holding possession of lands for a long period of time, such as 30 years; (7) treating property as one’s own; (8) selling timber; (9) executing leases; (10) assessment of property in one’s own name; (11) selling crops; (12) the execution, delivery, and recording of a deed by oiie cotenant which purports to convey the entire property; and (13) generally treating propertv as his own. Jones et al v. Morgan et al, 196 Ark. 1153, 121 S. W. 2d 96 (1938) ; Hildreth et al v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353 (1946) ; Linebarger v. Late, supra ; Ulrich v. Coleman et al, 218 Ark. 236, 235 S. W. 2d 868 (1951) ; Johnson et al v. James, 237 Ark. 900, 377 S. W. 2d 44 (1964).

Laches or estoppel, is not brought into being merely by delay-, but by delay that works a • disadvantage to another. So long as the parties are in the same condition, ■it matters little whether one presses a right promptly or slowly within limits allowed by law. But where, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith become so changed that he cannot be restored to his former state, if' the right be enforced, delay becomes inequitable, and- operates as estoppel against the asserted right. This disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes, the malting of substantial improvements to the land, and other causes, for where the court sees negligence on one side and injury therefrom on the other,' it is a ground for denial of relief.

Put in other terms, estoppel is merely the mánner, in courts of equity, and sometimes even in courts of law, where when one party, or one group of parties sit idly by and do not,.speak when, in good conscience, they should speak, they will not later be heard to speak when they should in good conscience, remain silent. Steele v. Jackson, 194 Ark. 1060, 110 S. W. 2d 1 (1937) ; Linebarger v. Late, supra.

Plaintiffs and their mother and father have had the exclusive and complete use, control, and possession of all of the land for more than thirty consecutive years prior to the commencement of this action. None of the defendants has been in possession of, or attempted, in any wise to exercise any dominion over, or possession of, the property during all of this time. There were no buildings or improvements on this property when it was redeemed in 1934. All improvements were made more than seven years before the commencement of this action and with full knowledge of defendants.

Plaintiffs’ mother paid all taxes in her own name, in addition to the redemption, for the years 1933 to 1955, inclusive, and plaintiffs have paid taxes in their own names for the years 1956 to 1964, inclusive. Plaintiffs executed an oil and gas lease in their own names. Plaintiffs cut and sold- all merchantable timber.

For all of these thirty years the defendants, while visiting and knowing that plaintiffs were making permanent and valuable improvements and doing other acts, sat idly by and made no claim until aroused by possible enrichment from the drilling of a gas well. Individuals do not slumber on their property rights for thirty years, under circumstances like this.

Considering all of these factors in the aggregate, the court is convinced that plaintiffs are entitled to have their title to said property quieted in them by reason of adverse possession, estoppel, and laches.

The testimony recited by the chancellor, supplemented by a study of the entire record, reveals only one important factual issue in controversy. This, concerns the circumstances surrounding entry upon the lands by Maude Roe, that is, -whether she ente'red on the basis of an agreement with the other heirs that the place would be hers if she would redeem it. On this point the chancellor, who had the advantage of seeing and hearing the witnesses, ruled in favor of appellees, and we certainly cannot say his findings were contrary to a preponderance of the evidence. The circumstances of the entry as found by the trial court, the silence of the aunts and uncles for three decades, together with the multitudinous acts of ownership recited in the record and undisputed, justify the factual conclusions of the chancellor.

Affirmed.

FoglemaN and Byrd, JJ., dissent.

JohN A. FoglemaN, Justice,

dissenting. The learned trial judge’s opinion contains a thorough and concise statement of the facts disclosed by this record and excellent statements of legal principles. My disagreement with him and the majority lies in what I take to be misapplication of law to the facts and their overlooking certain applicable legal and equitable principles. I am unable to distinguish this case from other decisions of this court which reached a contrary result.

The fundamental basis of appellees’ claim is an alleged parol gift of the land. This is clearly alleged in the complaint and the appellees attempted to make a showing that their mother obtained a redemption deed from a tax forfeiture to the state based upon an agreement with her brothers and sisters that if she would redeem the land it would be hers. Some of appellants concede that there was an agreement but they say that it was that she could live on, use and occupy the property without payment of rent if she would pay the taxes.

Here the appellees are confronted with the requirement that they show the parol gift, not by a mere preponderance of the evidence, but by evidence that is clear, convincing and satisfactory, or, as sometimes stated, by evidence that is clear and unequivocal. Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690. Not only is this parol gift the fundamental basis of appellees ’ claim, but it is also the foundation stone of the opinion of both the trial court and the majority that the possession of appellees was adverse and hostile to appellants.

My examination of the testimony in support of the parol gift discloses that the evidence supporting it is far from clear, convincing or satisfactory. No one testified about the gift except appellees. Appellee Roe was about 7 or 8 years old when his mother moved on the property, so he does not attempt to tell very much about the parol gift. He first said that none of his aunts and uncle?, ever said anything about the ownership of the property except his Uncle- Will (W. R. Ueltzen). He then related that his Uncle Will had, about six or seven years ago, advised him to go ahead and divide the property with his sister, appellee Sowl; that they (the other Ueltzen heirs) had tried to get it and couldn’t; and that they didn’t want it. When asked, he first said that there was nothing said by any of his other aunts and uncles with reference to the ownership of t he property until his memory was refreshed by his attorney. Then he told of an occasion at a store at Graphic when one Amos Watkins asked his Uncle Bob (R. T. Ueltzen) what they had ever done about the old home place and Uncle Bob replied that he had given it to Roe’s mother years ago. In this, Roe was corroborated by Amos Watkins. Although R. T. Ueltzen denied the conversation, he remembers going with Roe to the store.

In spite of appellee Roe’s testimony that there were no statements by his aunts and uncles relating to the ownership of the property, when later asked if there was any discussion as to who owned the property during his mother’s lifetime, he undertook to tell of a conversation among his mother, his Aunt May and his Aunt Chloe in which each of the aunts said that his mother could have her part of the place. He does not fix the time of these conversations in any way.

Appellee Sow-1’s testimony is most unsatisfactory. She said that she and her brother were just little kids when her mother redeemed the property, but she could remember her mother discussing the matter with her brothers and sisters before she redeemed it and that they said as far as they were concerned it was hers. She claimed to have heard her aunts and uncles say at different times that the property was her mother’s, but she never identified a time or place or person. In face of the denial of appellants, this is certainly equivocal, unclear, unconvincing and unsatisfactory. No parol gift can be sustained on any such testimony as this. The fact that Maude Roe obtained a redemption deed from the State of Arkansas is much more consistent with the position of appellants that she was to pay the taxes and occupy the property without payment of rent than with the contention of appellees. A redemption deed from the State, of course, is in effect a mere payment of taxes and does not purport to convey any title. Mabrey v. Millman, 208 Ark. 289, 186 S. W. 2d 28 ; Gott v. Moore, 218 Ark. 800, 238 S. W. 2d 754.

We should not overlook the fact that this is a case where tenants in common are claiming adversely to other tenants in common. The trial court and the majority of this court recognized that the possession of one such tenant is the possession of all; that much stronger evidence of adverse possession is required where the tenants are related than would otherwise be the case; and that it is incumbent upon one claiming adversely to a tenant in common to unequivocally bring home to the latter knowledge of his adverse claim.

Failure of proof on the parol gift leads only to the conclusion that the original possession of Mrs. Roe was permissive. Having been permissive, it is presumed to have continued to be so and could never be anything else regardless of duration in the absence of an explicit disclaimer. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 ; Dial v. Armstrong, 195 Ark. 621, 113 S. W. 2d 503 ; Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690.

Where one of the parties in a claim of adverse holdings entered permissively, the statutory period Will not begin to run until an adverse holding is declared and notice of such change is brought to the knowledge, of an owner. Bailey v. Martin, 218 Ark. 513, 237 S. W. 2d 16 ; Still v. Still, 239 Ark. 865, 394 S. W. 2d 733.

When a tenant in common seeks to oust or dispossess the other tenants and turn his occupancy into an adverse possession and acquire the entire estate by lapse of time under the statute of limitations, he must show when knowledge of such adverse claim, or of his intention to so hold was brought home to them, for it is only from that time that his holding will be adverse. Singer v. Naron, 99 Ark. 446, 138 S. W. 958 ; Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690. Just last May this court held that a cotenant must prove that he asserted a hostile claim and that notice thereof was brought home to his co-owners. Palmer v. Sanders, 240 Ark. 859, 342 S. W. 2d 300.

Roe admits that he never told his aunts and uncles that he was claiming the property adversely. Mrs.. Sowl seems to claim to have told them, but her testimony is so unsatisfactory that it is inconclusive and of no value whatever. This is her testimony on that subject:

“Q. And since you and Billy have gotten the deed did you ever notify these folks that you were claiming to own the property!
A. I think they knew.
Q. I don’t know whether they knew or not. I am asking if you personally over did!
A. Yes.
Q. When and where did that happen!
A. I couldn’t pin it down to the exact date.
Q. Where did this conversation take place!
A. I think it was around the time of Mother’s funeral.
Q. They were back at that time?
A. Yes, they were all back except Ontie.
Q. Did you notify them at that time you had a deed to the property?
A. There was, so much going on we didn’t sit down and say we owned this, there is the deed.
Q. Are you saying that you told them at that time that your mother had made a deed to the property to you?
A., We have the deed, yes.
Q. I know you have it. I am asking if you told them that you had it?
A. Yes.
Q. Who did you tell?
A. Different ones of them at different times.
Q. Did you just volunteer the information that you had a deed?
A. It is just a course of conversation when you talk to relatives.
Q. Now, of these people here, which one' did you?
A. Different ones.
Q. That hasn’t been so long ago. Just which one?
A. Uncle Bob, and I know Uncle Will knew about it.
Q. Did you tell him about it?
A. We talked about it.
Q. You and Uncle Will talked about it?
A. With Billy.
Q. What did they say when you told them you had a deed?
A. They didn’t say anything. They didn’t say they opposed it, or anything.”

Appellees rely on the building of improvements, the payment of taxes, the retention of rents and profits, the selling of timber, and the failure of appellants to claim benefits or make contributions, along with a deed from their mother, to. overcome the presumptions and establish their disclaimer.

The conveyance cannot be relied on to establish a disclaimer. As was said of a mortgage in Tennison v. Carroll, 219 Ark. 658, 243 S. W. 2d 944, a cotenant should not be expected to check a record constantly to determine whether such instruments have been executed. A brother’s joint occupancy of a farm with his mother, who was entitled to homestead and unassigned dower, was held insufficient to support a claim of adverse possession against his brothers, even though the mother had conveyed her interest to the former by deed of which the latter had no knowledge. McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714. Nor were they, in that case, charged with notice of a deed of their brother to his son when they had no knowledge of the deed and it was not followed by any visible change in the possession of the property.

In the case last above cited, this court reversed a decree of the Hot Spring Chancery Court sustaining a claim of adverse possession even though the occupying brother lived in a house that was on the land, built and occupied a house thereon, was in charge of the farm, managing it for his own benefit, paying taxes and paying installments upon a mortgage debt. In addition, the construction of two barns, drilling of a well and putting in a stock pond by this brother’s son were not sufficient to persuade this court that this would satisfy the requirement of notorious, unequivocal action necessary.

Living on the property, improving it, paying taxes and collecting rents were held insufficient to overcome the presumption accompanying a permissive entry in Flunder v. Childs, 238 Ark. 523, 382 S. W. 2d 881, reversing the lower court.

The fact that cotenant’s brother paid no taxes, collected no rents or profits, exerted no control and contributed to no improvements while off the land for 18 years was held insufficient to constitute notice that his sister was claiming adversely to him in an action against his sister’s grantee. Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640.

Continued review of cases would only extend this opinion. I find it impossible to distinguish this case from Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690, applying almost every principle involved here. There a parol gift from the cotenant was claimed. The claimant also asserted adverse possession evidenced by physical possession, enjoying profits, cutting timber, paying taxes, and making improvements. There the cotenant, claiming adverse possession, wrote one of the heirs of his cotenant seeking to purchase whatever interest the heirs might have. The similarity even goes to the extent that interest was activated in that ease by an attempted sale of fee simple title to a stranger to the tenancy and here hv an oil lease. It cannot be said that the difference lies in the decree of the chancellor having been favorable to the absent cotenants in the Gibbs case and unfavorable in the present case. It is clearly stated in the opinion in the former case that the cause was tried do novo and nowhere is there any mention of any weight being given the lower court’s decree.

I am willing to concede that there is a basis for sustaining the trial court’s findings as to W. R. (Will) Ueltzen and R. T. (Bob) Ueltzen by estoppel.

Proof of a transaction constituting an estoppel must also be clear and convincing. There must be cea*-tainty to every intent and the party setting it np must prove it strictly. Arkansas National Bank v. Boles, 97 Ark. 43, 133 S. W. 195 ; James Talcott, Inc., v. Associates Discount Corp., 302 F. 2d 443 (1962).

I think that proof is satisfactorily clear to sustain the lower court’s holding that they are estopped from any claim in this land by failure to speak when they should have spoken. Billy Roe’s testimony about his Uncle Will’s advice concerning division of the property was positive and unequivocal. Roe said he once suggested a place for a division line. He further stated that Will Ueltzen did not claim any interest when Roe advised him of the oil lease. Will Ueltzen’s denials are at least tempered by tacit admissions on cross-examination. He could have at least advised the attorney for Roe about his claim when the lease came up, but excused himself by saying, “I didn’t know you wanted to know.” Roe also testified that W. R. Ueltzen said that he would sign a quitclaim deed when the matter of the oil lease first came up.

The evidence as to estoppel of R. T. Ueltzen is even more convincing, in view of Amos Watkins’ testimony about the conversation at the store at Graphic.

It must be remembered that the other heirs of R. R. and Laura Ueltzen were living out of the state and quite a distance from the property. They are not bound by any statements of their tenants in common. 31A C. J. S., 814, Evidence, § 318. Nor do I see any inconsistency in their being agreeable to having the property occupied and used by the children of their sister, Maude, but not being willing for them to sell, lease, or convey the property or interests therein to outsiders. Undivided absentee ownership of property presents many practical difficulties in management which does make the position of these heirs reasonable and tenable.

I would affirm the chancery court’s decree as to W. R. and R. T. Ueltzen but reverse it as to the other heirs of R. R. and Laura Ueltzem. I fear the result reached by the majority is an erosion of rules of property by improper application.

I am authorized to state that Byrd, J., joins in. this dissent.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Julian Miller and Nedra Miller, d/b/a Home Finance Company v. Pat Ballentine
    5-4125
    411 S. W. 2d 655
    Opinion delivered February 27, 1967

      William I. Prewett, for appellant.

      Clint Huey, for appellee.
   Lyle Brown, Justice.

Julian and Nedra Miller d/b/a Home Finance Company, brought this action to recover under a conditional sale contract. Defendant, Pat Ballentine, executed the contract in favor of Nevels Furniture Company and the latter in turn assigned and sold the contract to Home Finance Company. On its face the instrument appeared in proper form, containing a list of furniture, the time price, monthly payments., etc., payable at the office of Home Finance Company. Ballentine defended on the ground that he received no merchandise or money in consideration of his executing the contract, and that he executed it in blank as an accommodation to permit Nevels to raise some needed cash. He further alleged that Nevels was at all times an agent for Home Finance. Trial resulted in a verdict discharging Ballentine from liability.

Pat Ballentine began buying furniture on credit from Nevels in 1962. At that time Nevels was using Home Finance Company to finance credit purchases. He had been furnished Home Finance’s printed forms. During 1962, Ballentine made three separate purchases and in each instance he executed a conditional sale contract, each of which was processed through Home Finance. The third contract was for a total of $1,197.60. Instead of sending his monthly payments direct to Home Finance in El Dorado, Ballentine made his payments at Nevels Furniture Company in Warren. Apparently Bal-lentine paid out this contract because he obtained a receipt, and later' an affidavit, from Nevels to that effect. On these latter instruments Nevels further certified that he was agent for Home Finance Company. Nevels also testified that Ballentine paid his account in full.

The contract sued on is dated January 15, 1964. Home Finance claims it never received all the payments under the last 1962 contract, that Ballentine apparently bought some additional items in 1964, and the 1964 contract represented the balance of the 1962 note, along with the cost of the additional purchases.

Ballentine’s explanation of the 1964 contract is entirely different from the claim of Home Finance. Briefly it is this; his friend Nevels approached him for an accommodation; Nevels needed to raise some money— “two or three hundred dollars” — and asked Ballentine to sign a conditional sale contract for that purpose; he signed it in blank; Ballentine was aware that Nevels would fill in the contract, showing the purchase of furniture and the consideration, and Nevels would in turn sell the contract to Home Finance Company.

Under the evidence recited, together with other proof and circumstances in evidence, the jury could have found in favor of Home Finance under the theory that Ballentine became an accommodation endorser on the instrument, well knowing that Nevels would deliver it to Home Finance, which in turn would pay out the money; that Nevels was not Home’s agent hut one of many merchants who used its financing services. On the other hand, if the jury believed that Nevels was an agent and employee of Home Finance, with authority to execute contracts in its behalf, handle the collections in the Warren area, etc., and so closely connected with Home Finance that the latter was chargeable with the knowledge' of the acts of its agent, then a verdict for Ballentine might be justified.

Keeping in mind the respective theories of the litigants and the possibility of a recovery for either, we examine certain instructions to which proper objection was made. Instruction No. 9 reads as follows:

‘ ‘ If you find from a preponderance of the evidence that the defendant, Pat Ballentine, did not receive the items of furniture as set out in the conditional sales contract, then, you are instructed there was a failure of consideration and the contract is not enforceable against the defendant, Pat Ballentine.”

This is, cledrly a binding instruction. It makes no mention of the theory under which Home Finance could recover, even though. Ballentine did not receive the furniture. It is not unreasonable to believe that the jury gave considerable weight to this instruction. During its deliberations the foreman returned to the courtroom and requested a copy of court’s instruction number 9, whereupon all the instructions were turned over to the jury.

It is inherently wrong to give an instruction which ignores a material issue in the case and allows the jury to find a verdict Without considering the omitted issue. Such error cannot be cured by correct instructions separately given. Davis v. Self, 220 Ark. 129, 246 S. W. 2d 426 (1952).

Because of what we have held with regard to instruction number 9, we feel the trial court, in the event of retrial, will re-evaluate instructions numbered 6 and 7 in the same light.

Under instruction number 8 the court purports to tell the jury that under certain conditions a unilateral contract cannot be enforced. We discern no connection between a unilateral contract and the facts of this case.

An examination of the record reveals a very unusual situation in that trial counsel for Home Finance (not the same counsel on this appeal) offered no instructions. This fact could well have contributed to cause the trial court to be led into error in the instructions given.

Reversed and remanded.


author: J. Fred Jones/ Justice.

text:
    Dan Cummings and Bessie Cummings v. Jim O. Boyles, Paul Rogers and Mettie Rogers
    5-4113
    411 S. W. 2d 665
    Opinion delivered February 27, 1967

      Rose, Meek, House, Rarron, Nash & Williamson for appellant.

      Moses, McClellan, Arnold,, Owen & McDermott; By: James R. Rhodes for appellee.
   J. Fred Jones/ Justice.

This case involves title to a part of what is known as “Beaver Dam Island” in the Arkansas River.

The appellants Dan and Bessie Cummings, own section 32 and the Sy2 of the NW%; the NEy4 of the SW %; the NWy4 of the SW% and the NW% of the SE% of Section 33, Township 4, North, Range 14 West in Pulaski County, Arkansas, and all accretions thereto. They deraign their title through mesne conveyances from the United States Government. Most of the evidence at the trial of this ease concerned the lands described in section 33.

All of appellants’ land lies south of the main channel of the Arkansas River and the east and west boundary lines of appellants’ land in section 33 if extended north, would cross Beaver Dam Island and the Arkansas River. The north boundary line of the S % of the NW % of section 33, passes through, or crosses, the south portion, or side, of Beaver Dam Island. The Arkansas River flows from west to east in the area of appellants’ land and a part of it crosses the S % of the NW % of section 33, on the south side of Beaver Dam Island. Another portion of the river, now constituting the main channel, flows from west to east along the north side of Beaver Dam Island, and that portion of the river on the south side of the island is called a “chute” which is almost dry when the river is at low stage and is never as deep as the main channel of the river.

Appellants claim title to all of Beaver Dam Island within their east and west boundary lines extended north to the main channel of the Arkansas River. They base their claim on the contention that Beaver Dam Island was completely washed away in 1927 and that a sand bar gradually built out into the river north from their property, and that by slow accretion the land now constituting Beaver Dam Island built out north from the main body of their land and slowly crowded the main channel of the river north to its present location. They contend that in about 1957 the river again reached flood stage and that when the water had receded, a “chute” was formed in its present location across their accreted land, and thus the present Beaver Dam Island, if it can correctly be classified as an island, was formed.

Appellants allege, in their complaint, that appellees have wrongfully and without right, gone into possession of a portion of their property under claim of interest, the nature of which is unknown to appellants, and have cut and sold timber therefrom of the value of $1,000.00. Appellants pray treble damages in the amount of $3,-000.00 for the timber cut; for possession of the property and for a restraining order against appellees to prevent further trespass.

Appellees answered by general denial and alleged adverse possession for more than seven years as an affirmative defense.

The trial court held that Beaver Dam Island did not form within the boundaries of the property owned by the appellants, either by accretions or avulsion occurring since 1927, and that appellants, had proven no adverse possession to any of the lands in dispute, and appellants’ complaint was dismissed.

We find that the greater weight of the evidence does not bear out appellants’ contention as to the manner in which Beaver Dam Island was formed since 1927, and we find that there was ample evidence to support the chancellor’s findings, as far as they went in this case, but on the trial of this case de novo, we go a little further than the chancellor did.

Ark. Stat. Ann. § 10-202 (Repl. 1956) reads as follows:

“All land which has formed or may hereafter form, in the navigable waters of this State, and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.”

We are of the opinion that this statute applies to the facts in the case at bar, and that the portion of Beaver Dam Island lying north of the north boundary line of appellants’ S% of the NW% of section 33 never was an accretion to appellants’ original tract.

The ancient U. S. engineer’s map on field work done in 1870, (Ex. 2) although not showing section, township and range boundary lines, does clearly show “Beaver Dam Reefe” and an island in the river near the reef, and we are convinced from this map and the other exhibits, as. well as from the testimony adduced at the trial, that this Beaver Dam Island, has existed as such, for at least the past ninety-seven years.

Much of the testimony of witnesses at the trial of this case, was directed at the meandering of the main channel of the Arkansas River through, and adjacent to, the land involved in this case. When that portion of the river considered to be the main channel, was on the south side of Beaver Dam Island, the portion of the river remaining on the north side of the island was called a “chute”, and when the main channel moved to the north side of the island, the part remaining on the south side was called the “chute.” These chutes would carry more water when the river was high and less water when the river was low. The? main channel of the river is now located on the north side of Beaver Dam Island, and a “chute” is located on the south side. Apparently the Army engineers are in the process of confining the Arkansas River to its present main channel on the north side of Beaver Dam Island and closing or eliminating the “chute” on the south side'of the island.

We find little evidence that accretions have affected the rights of the parties here involved, and we find no actual problem brought about by accretions or avul-sions in this case.

By reducing chains to feet in the metes and hounds description in the Circuit Court order of March 10, 1923, referred to in appellants’ brief, and marked as “Exhibit 12” in the transcript, we find that only % mile east of appellants ’ east boundary line, the distance from the southeast corner of section 33 north to the south bank of Beaver Dam Island was 2,762.10 feet, and the distance on to the south bank of the Arkansas River, was an additional 785.40 feet. In 1950, by simple calculation from the metes and bounds description in the tax deed to appelle?es, (Ex. 9), it is found that the distance along appellants’ east boundary line from the southboundary line of section 33 to the south bank of the Arkansas River is 3,196.52 feet, then another 924 feet across the “chute” to the south side of Beaver Dam Island. This description varies from the survey plat appearing as exhibit 6 in the transcript, and would indicate accretions from the island south toward the mainland, rather than from the mainland north toward the island. In the case Nix v. Pfeifer, 73 Ark. 199, at page 203 this court said:

“When the formation begins with a bar or an island detached and away from the shore, and by gradual filling in by deposit, or by gradual recession of the water, the space between bar or island and mainland is joined together, it is not an accretion to the mainland in a legal sense, and does not thereby become the property of the owner of the mainland.” Citing, Holman v. Hodges, 112 Ia. 714, s. c. 84 N. W. 950 ; Perkins v. Adams, 33 S. W. 778 ; Victoria v. Schoot, 29 S. W. 681 ; People v. Warner, 74 N. W. 705 ; Cooley v. Golden, 23 S. W. 100 ; Buse v. Russell, 86 Mo. 211.

So it appears from the preponderance of all the evidence in this case, that there has been little change in the property here involved, either by accretion or avulsion through the years, and we conclude that appellants still own all the land embraced within the description of their deeds, together with whatever accretions that may have occurred within the north, south, east and west boundary lines of their land. That is to say, whatever accretions that may have occurred south from their true north boundary line on Beaver Dam Island and within their east and west boundary lines, together with whatever accretions that may have occurred north from the main body of their land extending into the ‘ ‘ chute ’ ’ toward Beaver Dam Island belong to the appellants.

The record before us is not clear as to where on Beaver Dam Island the appellees cut and removed timber. If appellees cut and removed timber from appellants above described land, appellants would be? entitled to damages for same; the measure of such damages, and the amount thereof to be determined by the chancellor from the evidence presented.

The findings of the chancellor are affirmed, but this cause is remanded for a determination of damages, if any, for any timber cut on the land of appellants, as herein defined, and for entry of a decree not inconsistent with this opinion.

Affirmed and remanded.

Harris, C. J., and George Rose Smith, J., concur.

Byrd, J., not participating


author: OoNley Byrd, Justice. John A. Fogleman, Justice,

text:
    Wilburn Davis v. State of Arkansas
    5196
    411 S. W. 2d 531
    Opinion delivered February 27, 1967
    [Supplemental opinion on rehearing.]
    [Original opinion delivered Dec. 12, 1966, 241 Ark. 646.]

      8am Montgomery, for appellant.

      Bruce Bennett, Attorney General; H. Clay Robinson, Asst. Atty. Gen., for appellee.
   OoNley Byrd, Justice.

The appellant, Wilburn Davis, was convicted by a jury of the crime of false pretense, Ark. Stat. Ann. § 41-1901 (Repl. 1964). The judgment was affirmed by this court on December 12, 1966, Davis v. State, 241 Ark. 646. On this rehearing, we deal only with the reprimand given by the trial court to appellant’s attorney before the jury for having talked with the prosecuting witness during the noon hour.

The record shows that Mr. Sam Montgomery, attorney for appellant, had talked to Mrs. Scott-Tucker during a noon recess of the trial, and on cross-examination he was asking her about the conversation when the presiding judge, on his own motion, said:

“I don’t know what you were doing talking to the State’s witness, during the noon hour. Did you have' Mr. Coxey’s permission — .* * * You are supposed to ask the other side’s permission. You should tell the other side if you are going to talk to their witnesses.
“MR. MONTGOMERY: I presumed he saw me there and I didn’t know there was any rules.
“THE COURT: I don’t know anything about this procedure, but that is the customary procedure in this area. If you are going to talk to their witnesses and they don’t object, why, you can go ahead.
“MR. MONTGOMERY: I think you can talk to any witness if you can get the truth of the matter.
“THE COURT: I will see about that. Go ahead. You’ve got to have some regulations.”

In this, the court wás in error. Section 39 of the Canons of Professional Ethics, adopted by this court, provides as follows:

“A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. In doing so, however, he should scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.”

We had before us, in McAlister v. State, 206 Ark. 998, 178 S. W. 2d 67 (1944), an unmerited rebuke of counsel in the presence of a jury, and we there held that remarks of the trial court which could be construed as a reflection upon counsel’s knowledge and skill as a lawyer and as a suggestion that counsel was guilty of improper conduct constituted prejudicial error. In so holding, we said:

“Although it may be assumed that the trial judge did not intend that his remarks should in any way prejudice the rights of appellant, or influence the jury, still his choice of words was unfortunate. The words to grant your motion ‘would just be silly’ doubtless was construed by the jury to mean that the motion itself was silly, and they could have gathered the impression that the court was intentionally belittling it, and holding counsel up to ridicule for having made it. Viewed in this light, the court’s remarks could have been construed as a reflection upon counsel’s knowledge and skill as a lawyer, and, perhaps,^ even as a suggestion that counsel was guilty of improper conduct. Not only this, but when counsel objected to the remarks of the court, which he unquestionably had a right to do, he was informed that the court would not ‘put up with any more of this foolishness.’ This constituted an unmerited reprimand and prejudicial error calling for reversal. In the case of Adams v. Fisher, 83 Neb. 686, 120 N. W. 194, it was held that it is prejudicial error for the court to reprimand counsel for interposing a proper objection.”

When we consider that justice ought not only to be fair, but appear to be fair, we find that the rebuke given to counsel here is prejudicial error. To the same effect see Jones v. State, 166 Ark. 290, 265 S. W. 974 (1924).

Nothing said herein is intended to any way limit the right of a trial court to discipline lawyers or witnesses. However, it would appear that in most instances the better practice, except in extreme cases, would require the trial court to do so out of the presence of the jury.

Reversed and remanded.

Harris, C. J. and FoglemaN., J., dissent.

John A. Fogleman, Justice,

dissenting. The majority reverse this case upon a ground which I deem to be inappropriate. It is for actions of the trial judge which were in nowise prejudicial. I hope that we do not, by practice, adopt a rule that judgments may be reversed on non-prejudicial error. I see no rebuke or reprimand in the language addressed to appellant’s attorney. While the court was in error as to his statements about interviewing witnesses, the trial judge admitted that he might be when he said to the attorney: “I will see about that. Gro ahead, you’ve got to have some regulations.” The judge did not discipline the attorney in any way and did not prohibit any action the attorney sought to take. After the trial judge told him to go ahead, the attorney followed up his previous examination and inquired of the witness about their noon recess conversation, without any objection, interruption or limitation. The judge’s statement was a far cry from saying that he would not put up with any more of counsel’s foolishness, from reprimand for interposing a proper objection, from re-fleeting upon counsel’s knowledge and skill, or that he was “facilitating a trial like a crawfish does backward”,, as occurred in the cases cited as authority by the majority.

I am authorized to state that Harris, C. J., joins .in this dissent.


author: Conley Byrd, ^.Justice.

text:
    Essie Alston v. Mrs. A. H. Kahn Sr. et al
    5-4138
    411 S. W. 2d 659
    Opinion delivered February 27, 1967

      Loftin, Herrod & Cole, for appellant.

      Wright, Lindsey & Jennings; By: William R. Over-ton, for appellee.
   Conley Byrd, ^.Justice.

This is a suit by a tenant’s guest against the landlord and the landlord’s agent for injuries sustained in a fall through a rotten board on a porch. Appellant Essie Alston was the guest. Hattie Lewis was the tenant, and appellee Mrs. A. H. Kahn was the landlord. Appellee United Corporation was. the landlord’s agent. At the conclusion of appellant’s testimony the trial court directed a verdict in favor of the landlord and her agent.

Appellant states that the sole question on this appeal is, “Did the landlord (or his agent) in making repairs (prior to the accident), make them in a careful and diligent manner?” In making this contention, appellant relies upon Sparks v. Murray, 120 Ark. 17, 178 S. W. 909 (1915), where we stated:

“(2) The law appears to be settled that notwithstanding the landlord is under no implied obligation to make repairs or improvements upon leased premises, in the ábsence of a covenant or agreement to do so, still if he undertakes to make such improvement or repairs and makes them in such a negligent and careless manner, as to injure the tenant, the tenant may recover damages therefor.
“ ‘Where the landlord undertakes, to make repairs upon the demised premises, he is liable for injuries resulting from the negligence of himself or his servants in making such repairs, and this is. true even where the landlord is under no obligation to make such repairs, but undertakes to make them gratuitously.’ ”

The testimony, when viewed in the light most favorable to appellant, shows that Mrs. Hattie Lewis has been renting the premises for approximately twenty-five years. The rental value since 1952 has been $20 per month. Mrs. Lewis, stated that approximately three years ago, United Corporation repaired the front steps leading to the porch, and also repaired some boards on the south end of the porch. No repairs were made at that time to the north end of the porch between the steps and the door, where this accident occurred. On cross-examination, Mrs. Lewis was not definite as to the time when the repairs were made, but was quite certain that the boards repaired at that time had already decayed at the time of the accident. In response to questions on cross-examination, Mrs. Lewis stated that yon couldn’t tell that the board through which appellant fell was rotten or decaying, and that she used the front porch every day — on the surface it looked just fine.

Appellant, Mrs. Alston, testified that she had been across this porch several times and that the rotten condition of the porch was not obvious.

In the light of the foregoing testimony, the repairs made by the landlord had themselves decayed at the time appellant fell through the porch. We can find no evidence indicating that either the landlord or her agent was negligent in the manner in which the porch was repaired. There is absolutely no testimony showing that at the time the landlord made the repairs she either knew or should have known that the board through which the appellant fell had deteriorated to the point that it needed replacement.

Therefore, we hold that the trial court correctly directed a verdict in favor of the landlord and her agent.

Affirmed.


author: Carletok Harris, Chief Justice.

text:
    Tucker Paving Corporation and Maryland Casualty Company v. Armco Steel Corporation
    5-4115
    411 S. W. 2d 888
    Opinion delivered March 6, 1967

      Smith, Williams, Friday & Bowen, for appellants.

      James M. McHcmey of Owens, McHaney & McHaney, for appellee.
   Carletok Harris, Chief Justice.

Appellants, Tucker Paving Corporation (hereafter called Tucker), and Maryland Casualty Company, have appealed from a .summary judgment in favor of appellee, Armco Steel Corporation (hereafter called Armco), an Ohio corporation authorized to do business in Arkansas. Tucker was principal and Maryland Casualty, surety, under two performance and payment bonds which were furnished in connection with two contracts, entered into by Tucker with the Metropolitan Trust Company for certain grading, drainage and paving improvements in North Little Eock and Sherwood. Tucker subcontracted with D. H. Garner and Company for work on both jobs, and appel-lee sold Garner corrugated steel pipe, which was used in performing the contracts. Armco was unsuccessful in collecting its account from Garner, and accordingly, on August 2o, 1965, brought action under the bonds given by Tucker, the condition (in such bonds) being that Tucker would, pay all indebtedness for labor or material furnished. Armco filed a motion for summary judgment, supporting same with affidavits, of Justin Matthews III, an officer of Metropolitan Trust Company and J. P. Parr, Credit Adviser, Metal Products Division of Armco. Tucker and Maryland responded to this motion by filing the affidavits of Hartley Tucker, President of Tucker Paving Corporation, and Max A. Mehlburger and Charles. E. Deitz, registered professional engineers. After briefs were submitted, the court entered its judgment in favor of appellee in the amount of $7,827.13, together with costs and interest at the rate of 6% per .annum from October 1, 1964. Armco was further given judgment agninst Maryland Casualty Company in the .additional amount of $1,023.72 as penalty, and $1,750.00 for attorney’s fee. From this judgment appellants bring this appeal. For reversal, it is simply urged that the court erred in granting the motion for summary judgment, because the affidavits, presented a question of fact.

Ark. Stat. Ann. § 51-636 Supp. (1965) provides, with reference to the type of bond herein used:

“All persons, firms, associations and corporations who have valid claims against the bond may bring an action thereon against the corporate surety, provided that no action shall be brought on said bond after six [6] months from the date final payment is made on the contract, nor outside the State of Arkansas.”

The bonds themselves likewise provide that actions (except by the owner) shall not be brought on the bonds ‘ ‘ after six months from the date final payment is made on the contract.* * *” It is the statute and bond provisions just quoted that occasion this litigation. Appellants contend that appellee’s suit was not instituted within six months from the date of final payment, and is thus barred.

The affidavits offered by appellees, related the following facts:

J. P. Parr simply stated that corrugated steel pipe had been sold to Garner, subcontractor for Tucker, to be used on what we term the North Little Bock and Sherwood jobs; his company was due the sum of $7,-827.13, and written demand had been made upon appellants for payment, but payment had been denied. Justin Matthews III, Vice-President and Treasurer of Metropolitan Trust Company, stated that the company had entered into a contract with Tucker for grading, drainage and paving improvements on the two projects heretofore mentioned, and he stated that the North Little Rock job was completed on February 8, 1965; that on the following day his company paid to Tucker a sum of money which, together with previous payments, represented 95% of the contract price. The affiant further stated that his company, on June 7, 1965, paid to Tucker the 5% retainage which it had held back on February 9. As to the Sherwood job, Matthews stated that on January 5, 1965, all work was completed, and on January 11, 1965, his company paid Tucker a sum of money which, together with previous payments to that company, totaled 95% of the contract price. Five percent was retained by Metropolitan until April 8, 1965, at which time this money was paid over to that appellant.

Hartley Tucker stated that the payment made to his company on the North Little Rock job on February 9, 1965, under customary procedure in the construction industry, was considered a final payment; the same was also true of the January 5 payment, received on the Sherwood job.

From his affidavit:

“* * * In the industry, retainages after final payment are considered necessary merely for the protection of the owner to take care of minor claims and any differences as to final amounts that might arise between the contractor and the owner. However, as previously stated, it is customary in the industry to consider the payments received on January 5 and February 9, 1965, respectively, as final payments because the jobs were accepted by the owner at that time as being completed.
“Further, it is understood by Registered Engineers and Architects in the construction industry that final payment means the date the job is accepted by the owner and the final estimate is paid. The retainage of a certain percentage thereafter is merely a safeguard to the owner, hut after the final payment is made on the job accepted, no additional work is customarily performed.”

The affidavits of Max A. Mehlburger and Charles E. Dietz (taken in question and answer form) were to the same effect. In other words, it is the contention of appellants that a fact question has been presented as to the meaning of the term, “final payment,” it being the view of appellants that this term actually means, “final estimate.” It is pointed out that the 5% was retained solely for the purpose of being used for any possible minor claims of the owner or the repair of defects which the contractor had not remedied after due notice from the owner; that this money actually belonged to the contractor, though it was not received until several months later. Appellant cites two cases from other jurisdictions, one dealing with the interpretation of the words, “final settlement,” appearing in a public contractor’s payment bond, and the other dealing with an interpretation of the words, “final acceptance.” Appellant argues that a genuine question of fact exists, in the instant litigation as to the meaning of the phrase, ‘ ‘ final payment.” We do not agree. To say that the February and January payments on the two jobs (wherein Tucker received 95% of the contract price) constituted final payments is, to us, simply to say that “black” is the same as “white.” Admittedly, these did not actually constitute final payments, for Tucker was subsequently paid (in April, 1965, and June, 1965) the 5% that had been withheld. We daresay that if Metropolitan had subsequently refused to pay the amounts represented by the 5%, and which had been withheld, Tucker would have instituted suit, alleging that it had not been fully paid. In the generally accepted use of the word, “final,” the- meaning is simply “last” — “nothing remains to be done”— “the matter is concluded.” We think that the adoption of appellants ’ argument would do violence to our statute, and that such a holding would create uncertainty as to the beginning of the period of limitations where it presently appears to he quite clear.

Authorities are cited by appellee construing the term, “final payment,” and the constructions are entirely in line with our own interpretation. For instance, 16A Words & Phrases, “Final Payment,” Page 690, states that “A final payment is the last payment.”

Likewise, in National Tea Company v. Patrick J. McDonough et al, 178 Minn. 388, 227 N. W. 205, the court held that the last payment made is. the final payment.

We are of the opinion that no genuine question of fact existed as to the meaning of the term, “final payment;” that it simply means the last payment, and the suit was therefore commenced within the period of limitations. It follows, that there was no error in granting the summary judgment.

Affirmed.

Byrd, J., disqualified and not participating.

       Section 51-635 provides for a surety bond which “shall be conditioned that the contractor shall faithfully perform his contract, and shall pay all indebtedness for labor and materials furnished or performed in the repair, alteration or erection.”


author: CarletoN . Harris, Chief Justice. JohN A. Foglemak, Justice,

text:
    Green Star Supermarket, Inc. v. Harry Stacy Jr., A. B. Corder and J. T. McKinnon
    5-4122
    411 S. W. 2d 871
    Opinion delivered March 6, 1967

      Henslee & Patty; By: William E. Henslee,, for appellant.

      Warren & Bullion, for appellees.
   CarletoN . Harris, Chief Justice.

Appellant, Green Star Supermarket, Inc., operates retail grocery stores in the city of Little Bock. Appellees are three citizens of Pulaski County who instituted suit under Little Bock Municipal Ordinance No. 11-198, as amended, same being Section 25-115.1 of the City Code, to enjoin appellant from violating this ordinance, and from selling or offering for sale any of the articles prohibited under the provisions of the ordinance. Appellant filed a demurrer to the complaint, which was overruled by the Chancellor, and Green Star Supermarket electing to stand on its demurrer, the court entered a decree whereby the appellant, “is hereby restrained and enjoined from violating the provisions of City Ordinance 11-198 same being Section 25-115.1 of the Code of the City of Little Rock, more popularly known as the Sunday Closing Ordinance and the defendant, its agents., servants and employees are restrained and enjoined from offering for sale or selling on Sunday any of the articles prohibited by said Sunday Closing Ordinance hereinabove stated.”

From the decree so entered, comes, this appeal. For reversal, four points are relied upon, vis, the ordinance is. invalid because it is arbitrary and unreasonable, prohibits instead of regulates, and thereby exceeds a municipal corporation’s statutory authority to regulate; second, the ordinance is invalid because it declares something to be a nuisance which is actually not a nuisance; third, the Chancery Court is without jurisdiction to enjoin the commission of a criminal offense when the complaining parties do not allege any injury, and fourth, the ordinance is void because it is too vague and uncertain to be effective. We proceed to a discussion of these points in the order listed.

Appellant argues that the classification of items, permitting some to be sold and prohibiting all others from being sold, is unreasonable and arbitrary; that there is no reasonable relationship between proper regulation of the operation of Sunday business and the arbitrary and unreasonable classification of the items permitted, and prohibited, for sale on Sunday. Without setting out the items, we deem it sufficient to state that this argument was fully considered in the case of McGowan v. Maryland, 336 U. S. 420, 6 L. Ed. 2d 393. This case involved the constitutionality of the Maryland Sunday Closing Laws. There, the appellants were indicted for selling a three-ring, loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md. Ann. Code, Art. 27, § 521. That section, like the ordinance involved in the present litigation, in general, prohibited the Sunday sale of merchandise, but excepted numerous specific items which could be sold. Appellants contended, inter alia, that the Maryland statutes, under which they were convicted, were contrary to the Fourteenth Amendment, hut our highest court, in affirming the Maryland court, disagreed, stating:

“ Appellants argue that the Maryland statutes violate the ‘Equal Protection’ Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation. Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday.
“The standards under which this proposition is, to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits. the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended onl/ if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result .in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. (Citing cases)
“It would s,eem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day — that a family which takes a Sunday ride into .the country will need gasoline for the automobile and may find pleasant a soft drink or fresh, fruit; that those who go to the beach may wish ice cream or some other item normally sold there; * * *
‘ ‘ The record is barren of .any indication that this apparently reasonable basis does, not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. ’ ’

We think this case completely answers the contention made.

It is further asserted that, while the city may have authority to properly regulate the operation of businesses on Sunday within the city limits, the complete prohibition of sales of all but certain items on this day of the week does not constitute regulation, but ¿ctually constitutes prohibition. We disagree, and here again, the contention is rejected in McGowan. Ark. Stat. Ann. § 19-2335 (Supp. 1965) provides:

“Hereafter, city council or bo^rd of managers of any city or incorporated town in this State shall have the authority, by ordinance, to regulate the operation of businesses within such cities or towns on Sunday.”

We consider this statute as sufficiently broad and definite to grant the municipality full and complete authority to enact the present ordinance, and we might also call attention to Ark. Stat. Ann § 41-3812 — 41-3823 (Supp. 1965), which is Chapter 38, entitled, “Sunday Laws,” (Act 135 of 1965). This act reaffirms the power given a municipality to enact ordinances prohibiting sales., and the statute itself prohibits the sale of certain specified items. There is no merit in this contention.

As to the second contention, the answer is simply that the ordinance in question declares a violation of same to be a public nuisance; state statutes also declare illegal sales on Sunday to be a public nuisance. Ark. Stat. Ann. § 41-3818 (Supp. 1965). In Dardanelle v. Gillespie, 116 Ark. 390, 172 S. W. 1036, this court pointed out that a city or town has no authority. to declare something a nuisance, which is not a nuisance per se, unless that authority was conferred by express legislative enactment. Here, that authority has, been conferred, and we accordingly find no merit in this, contention.

It is next asserted that the Chancery Court is without jurisdiction to enjoin the commission of a criminal offense when the complaining parties do not allege any injury. We do not agree with that argument. It has already been pointed out that this, ordinance was properly authorized, and the city statute does not go beyond the authority bestowed by the General Assembly. Subsection (c) declares, that the sale of any prohibited article “is declared to be a public nuisance, and any store or other establishment wherein such sales or offers of sales are made in violation of this section is hereby declared to be a public nuisance, and any citizen (our emphasis) of this city may enjoin said nuisance in the Chancery Court of this district. The issuance of an injunction shall not relieve a. person from criminal prosecution for violation of the provisions of this section, but such remedy of injunction shall be in addition to liability to criminal prosecution.” We have held on several occasions that the fact that the violation of an act constitutes a criminal offense does not affect the power of a court of equity to grant injunctive relief. In Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, we said:

“The action is not one to enjoin the commission of a crime, as. such. Its purpose, primarily, is to prevent the illegal practice of optometry, rather than to penalize the practitioner. If the latter alone were the object, Chancery would be without jurisdiction. The rule, as stated in 28 American Jurisprudence, Injunctions, § 148 at page 338, is that acts amounting to a public nuisance will be restrained if they affect the civil or property rights or privileges, of the public, or endanger tbe public health, regardless of-whether such acts are denounced as crimes.”

Also, in James v. James, 237 Ark. 764, 375 S. W. 2d 793:

“The fact that an act enjoined also happens to be a criminal offense does-not affect the power of a court of equity to enforce its order and the criminal aspects of an act neither give nor oust equity of jurisdiction. Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4 ; Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. If it should be held that the imposition of a criminal penalty for violation of a law" would deprive a court of equity of jurisdiction to enforce’ its orders than a' person desiring to proceed or continue in violation of the law might be able to pay a maximum fine and, thus, make himself immune from a valid chancery court injunction. This is not and should not be the law.”

Finally, it is urged that the ordinance is void because it is too vague and uncertain to be effective. Here again, the contention is contrary to the holding in McGowan v. Maryland, supra, where the United States Supreme Court stated:

“Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of ‘merchandise essential to, or customarily sold at, or incidental to, the operation of’ bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants ’ employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge of by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county.”

Actually, tlie ordinance involved is not nearly so indefinite as that in McGowan, for Section 25-115.1 of the Code of the City of Little Rock lists rather specifically many items that may be sold; for instance, we find “milk, bread, cakes, pastries, fresh fruits, bacon, eggs,” etc. Those mentioned only in general terms, we think, would be 'understood by anyone with, as stated in McGowan, “ordinary commercial knowledge.” Examples are “drugs and medical supplies, and all other such items as. are customarily used for the relief of pain * * * baby foods; school supplies * * * Gasoline, oil, greases, and motor vehicle parts or equipment necessary to the operation of a motor vehicle * * *” etc.

Finding no merit in any of the points raised by appellant, the decree entered by the Chancery Court is herewith affirmed.

FoglemaN, J., dissents.

JohN A. Foglemak, Justice,

dissenting. I am compelled to disagree with my brethren of the majority. In the first place, I can find absolutely no authority for appellees to bring this action, even if it be conceded that injunction is an appropriate remedy in a case of this sort, which I do not. The majority find authority for appellees to seek equitable relief in their status as citizens only in, of all places, a city ordinance. This is a new departure for it has always, been considered that a city ordinance could not confer a right of action on anyone.

We must not lose sight of the .limitation on the powers and authority of municipalities. They have no inherent powers and can exercise only (1) those expressly given them by the State through the constitution or by legislative grant, (2) those necessarily implied for the purpose of, .or incident to, these, express powers and (3) those indispensable (not merely convenient) to their objects, and purposes. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486, and cases cited therein. Nor can we? forget that any fair, reasonable and substantial donbt about the existence of a power in a municipal corporation must be resolved against it. City of Piggott v. Eblen, 236 Ark. 390, 366 S. W. 2d 192 ; City of Little Pock v. Raines, supra.

It seems to be settled law that a city has no general, special or implied powers, to create any right of action between third persons. Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843 ; McQuillin, Municipal Corporations, 3rd Ed., § 22.01. Possibly that power could he conferred upon cities by the State, but I cannot find where this has. been done. It is nowhere mentioned in Act 135 of 1965 [Ark. Stat. Ann. §§ 41-3812— 41-3823 (Supp. 1965)]. If we are to permit this to be done we are imposing an impossible burden on the judicial department.

The majority opinion itself, in quoting from Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, recognizes the rule that acts amounting to a public nuisance will be restrained if they affect the civil or property rights or privileges of the public, or endanger the public health, regardless of whether such acts are denounced as crimes. See, also, Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30. I have been unable to. find where appellees even claim that any of the civil or property rights or privileges of the public are affected or the public health endangered, .even if the acts complained of - constitute a public nuisance. So this, is different from the Hickinbotham case.

A court of equity will not abate a public nuisance at the suit of a private party unless he shows that he has sustained and will sustain individual damage. Ward v. City of Little Rock, 41 Ark. 526. The impropriety of in-junctive relief against an illegal act in the absence of allegations of injury and damage to the petitioner was again declared in Arkansas State Board of Architects v. Clark, 226 Ark. 548, 291 S. W. 2d 262. The court there cited what it called the well' considered case of Smith v. Hamm, 207 Ark. 507, 181 S. W. 2d 475, wherein it was held that even if a -criminal act were of a character to constitute a nuisance, one seeking an injunction must clearly show facts and circumstances to justify the court in granting him relief for injury to property or pecuniary rights. Even though appellees alleged that the acts of appellant were in flagrant disregard of the personal or property rights of appellees, they did not allege what personal or property rights were disregarded, or the manner in ¿which they were injured or damaged. The statements of appellees are not statements of fact hut are general allegations and conclusions of the pleader. As such they are not admitted by appellant’s demurrer. Herndon v. Gregory, 190 Ark. 702, 81 S. W. 2d 849 ; Ready v. Ozan Inv. Co., 190 Ark. 506, 79 S. W. 2d 433 ; Wood v. Drainage Dist. No. 2 of Conway County, 110 Ark. 416, 161 S. W. 1057 ; Self v. Road Improvement Dist. No. 1 of Greene County, 145 Ark. 87, 223 S. W. 402 ; Purtle v. Wilcox, 239 Ark. 988, 395 S. W. 2d 758. I do not see how any argument could be advanced that appellees’ allegations in this regard are more than conclusions. A general' allegation of fraud without a statement of facts upon which the allegation was based has been held insufficient as a statement of a legal conclusion. Ready v. Ozan Inv. Co., supra ; Finch v. Watson Inv. Co., 184 Ark. 312, 42 S. W. 2d 214 ; Sibley v. Manufacturers’ Furniture Co., 220 Ark. 234, 247 S. W. 2d 20. An allegation that goods were exempt in an action in replevin to recover goods levied upon under execution was. held to be the statement of a conclusion of law, Donnelly v. Wheeler, 34 Ark. 111. A complaint alleging that a telephone company had discriminated against a defendant without stating the facts constituting the discrimination states merely a conclusion of law and is demurrable. Phillips v. Southwestern Telegraph & Telephone Co., 72 Ark. 478, 81 S. W. 605. Allegations that a debtor’s conveyance was made with the purpose and. intent to hinder, delay and defraud creditors were held to be conclusions. Finch v. Watson Inv. Co., 184 Ark. 312, 42 S. W. 2d 214. An allegation that plaintiff’s land received ino benefit was said to be too general and a mere conclusion. Higginbotham v. Road Improvement Dist. No. 3 of Lonoke Co., 154 Ark. 112, 241 S. W. 866. An allegation that assessments of benefits, were arbitrary and unreasonable was a mere conclusion. Henderson v. Road Improvement Dist. No. 1 of Hot Spring Co., 171 Ark. 8, 283 S. W. 39. Many other examples, could be cited but these should be sufficient to illustrate that ap-pellees’ allegations are conclusions merely.

I would reverse this case for want of any cause of action by appellees.

Furthermore, insofar as the' ordinance declares the acts therein prohibited to be a public nuisance, it. is. invalid because it is in excess of the powers of the municipality. It has long been settled in Arkansas, that a city has the power to declare to be public nuisances only those things which constitute nuisances, per se. The nearest to sources of authority in a city to declare acts to be a public nuisance are Ark. Stat. A.nn. §§ 19:2303— 04 (Repl. 1956). The former gives municipal corporations. the power to prevent injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy and to cause any nuisance to' be abated within the jurisdiction given the Board of Health. It has been a part of our statutory law since 1875, insofar as. this language is concerned. The following section was enacted in 1885 and authorizes cities of the? first class to prevent, abate, or remove nuisances of every kind, and to declare what are such and punish authors and continuers thereof by fine or imprisonment. It' also provides that no previous declaration shall be necessary as to any matter, act or thing that would have been a nuisance at common law and that all nuisances may be proceeded against either by order of the city council or prosecution- in tlie Police- Court. In spite of these statutes, this court has steadfastly held that the city’s powers to declare nuisances are limited to nuisances per se. This rule has been invoked by o this court to strike down many ordinances. Some of them declared the following to he public nuisances:

The working of convicts upon its streets, Ward v. City of Little Rock, 41 Ark. 526 ; owning, keeping or raising bees, City of Arkadelphia v. Clark, 52 Ark. 23, 11 S. W. 957 ; pool halls in which gambling was not permitted, Town of Dardanelle v. Gillespie, 116 Ark. 390, 172 S. W. 1036 ; the business of soliciting orders for photographs by door to door canvass, Wilkins v. City of Harrison, 218 Ark. 316, 236 S. W. 2d 82 ; the keeping of chickens, City of Springdale v. Chandler, 222 Ark. 167, 257 S. W. 2d 934 ; the construction of a building without connecting with the sanitary sewer system, Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186 ; use of pinball machines by minors, City of Piggott v. Eblen, 236 Ark. 390, 366 S. W. 2d 192.

I do not believe that the majority intends to say that the sale of the articles specified by the ordinance on Sunday constitutes a public nuisance per se.

The opinion of the majority may intend to imply that Act 135 of 1965 [Ark. Stat. Ann. § 41-3812 to § 41-3823 (Supp. 1965)] gives the city some additional power to declare Sunday sales of specific articles to be a public nuisance, for there it is said that this statute is sufficiently broad to give the city full and complete authority to enact the questioned ordinance. A careful review of the'Act nowhere reveals such a grant, whether or not we construe the grant strictly against the city, as we should. The only language from which any grant might, under the most liberal construction, be inferred is. in § 11 [Ark. Stat. Ann. § 41-3822 (Supp. 1965)] which reads:

“The offenses and penalties herein provided shall be in addition to those provided by previously existing municipal and state laws, and nothing contained- in this Act shall be construed to prohibit the city council or' the board of managers of any city or "town from enacting an ordinance or ordinances implementing or expanding the provisions of this Act in its. application to businesses or occupations within the limits of such city or town, provided such ordinance or ordinances do not permit the sale of any articles on Sunday prohibited by this Act and are not otherwise in conflict herewith.”

This, section does nothing more than leave the city with whatever powers it had prior to enactment of Act 135 of 1965. Saying that a city is not prohibited by the Act from doing something is a far cry from a grant of authority which the city did not previously have. Even if this language could be construed to be a grant of power, nothing in it implies any power to declare something to be a public nuisance which is not a nuisance per se.

Nor is it sufficient thát the Act declares the sale of any articles prohibited by “this Act” a public nuisance because the city ordinance prohibits the sale of many articles not prohibited by “this Act”. [Italics ours]

I would also reverse on the merits on the basis that the portions of the ordinance declaring a public nuisance are invalid.


author: G-eorge Rose Smith, Justice. JohN A. FoglemaN, Justice,

text:
    Benton County Water Company, Inc. v. Maupin Cummings, Judge
    5-4130
    411 S. W. 2d 890
    Opinion delivered March 6, 1967

      Wade & McAllister, for appellant.

      Little & Enfield, for appellee.
   G-eorge Rose Smith, Justice.

The city of Sulphur Springs filed its complaint in the Benton Circuit Court, seeking to acquire by condemnation the waterworks system of the petitioner, Benton County Water Company, Inc., which was serving the city.- By demurrer the water company questioned the court’s jurisdiction. The court overruled the demurrer. The petitioner then filed the present application for a writ of prohibition, contending that the only way for a city to condemn an existing waterworks system is. to proceed before the Public Service Commission pursuant to Act 324 of 1935. Ark. Stat. Ann. § 73-247 (Repl. 1957).

Several statutes are pertinent to the question presented. Section 1 of Act 131 of 1933 declared that “any city . .. may purchase or construct a waterworks system. . . . as in this act provided.” Ark. Stat. Ann. § 19-4201 (Repl. 1956). Section 9 of that act vested in municipalities the power of eminent domain ‘ ‘ [f] or the purpose of acquiring any waterworks system under the provisions of this act.” Before the wording of Section 9 was changed by amendment we held that the city, in acquiring an existing waterworks system, might proceed either in the circuit court or before the Department of Public Utilities (now the Public Service Commission). City of Helena v. Ark. Utilities Co., 208 Ark. 442, 186 S. W. 2d 783 (1945).

Ten years after the decision in the Helena case the legislature changed the first sentence of Section 9 of the 1933 act to read as follows: “For the purpose of acquiring any lands or property for the operation of the municipal waterworks system authorized by law, a municipality shall have the right of eminent domain as provided in Act 53 of the Acts of the General Assembly of the State of Arkansas for the year 1955.” Act. 321 of 1955 ; Ark. Stat. Ann. § 19-4209. See also Act 269 of 1957 ; Ark. Stat. Ann. §§ 35-908 et seq. (Repl. 1962). The petitioner now contends that the' 1955 amendment was intended to take from municipalities the power to condemn an existing waterworks system by a -proceeding-in the circuit court, leaving only the authority to proceed before the Public Service Commission.

Even if the petitioner is correct in its interpretation of Act 321 of 195, there is other statutory authority for the present circuit court proceeding. Act 1 of 1875, a comprehensive statute governing municipalities, conferred upon municipal corporations the power of eminent domain for the construction of certain improvements and for the present circuit court proceeding. Act lof 1875, a comprehensive statute governing municipalities, • conferred upon municipal corporations the power of eminent domain for the construction of certain improvements and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes. The term, or other lawful purposes, as used in this ■ section, shall include a waterworks system in its entirety, or any integral part thereof, or any extension, addition, betterment, or improvement to an existing waterworks system operated by such municipal corporation.” Act 155 of 1935 ; Ark. Stat. Ann. § 35-902.

The petitioner argues that the language just quoted is limited to the taking of private property “for the construction” of the enumerated improvements and that therefore it does not embrace the condemnation of .an existing waterworks system. We think there are at least three reasons for disagreeing with this argument.

To begin, with, when.the language in question was adopted in 1935 there was on the statute books. Act 131 of 1933, supra, which explicitly empowered municipalities to exercise the right of eminent domain either to purchase or to construct a waterworks system. We find nothing in the 1935 act to indicate that the legislature intended for that act to take away any authority already vested in municipalities. To the contrary, both the body of the statute and its emergency clause suggest a legislative intention to enlarge the cities’ powers.

Secondly, the phrase “for the construction of” does not literally apply, of course, to “lawful purposes,” since one cannot construct a lawful purpose. The improvements specifically mentioned, with the possible exception of market places, are of a type ordinarily created by some branch of the government rather than by private capital. Hence before the act was. amended there was little need for it to refer to a purchase in addition to a construction, because such improvements could not ordinarily be bought. In a very similar situation, involving an analogous amendment to a constitutional provision, we held that the phrase, “construction, re-construction, or extension,” was broad enough to include the purchase of an existing structure. Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680 (1953). The condemnation of an existing waterworks system is in reality a method of purchasing it — a fact recognized by Act 131 of 1933.

Finally, the 1935 act refers to “a waterworks system in its entirety, or any integral part thereof. ” The italicized clause is useless and meaningless if the act contemplates the acquisition of property for construction only, because the act goes on to refer to “any extension, addition, betterment, or improvement to an existing waterworks system operated by such municipal corporation.” We think it evident that the delegated power to condemn an integral part of an existing waterworks system envisaged the acquisition of that part of a system serving the particular municipality, even though the water company might serve other municipalities as well. That precise situation was presented in 1936, when the city of Little Rock bought that part of the Arkansas Water Company’s system that was serving Little Rock but did not buy that part serving North Little Rock. See North Little Rock Water Co. v. Water Works Commission of Little Rock, 199 Ark. 773, 136 S. W. 2d 194 (1940). Even construing the statute strictly, as we do in cases of this kind, we are convinced that the legislature intended for cities to have the power to condemn either a waterworks, system in its entirety or an integral part of one.

Writ denied.

Foglemak, J., concurs.

JohN A. FoglemaN, Justice,

concurring. I concur with the result reached by the majority but upon the basis of a different section of the statutes and a different construction of those to which they refer. They rely on Act 155 of 1935 [Ark. Stat. Ann. § 35-902 (Repl. 1962)] as the source of the city’s power by giving it a strained construction rather than a strict one as is required.

In determining whether the city has the power to condemn the waterworks system, it should be kept in mind that grants from the sovereign are to be construed strictly against the grantee; that the authority for taking private property should be clearly expressed; that statutes relating to the delegation of the state’s’ power of eminent domain should he strictly construed in favor of the property owner and against the condemnor and any fair, reasonable and substantial doubt about the existence of a power in a municipal corporation must be resolved against it. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486 ; City of Osceola v. Whistle, 241 Ark. 604, 410 S. W. 2d 393 ; City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.

The majority holds that the power, exists because it cannot he said that “a lawful purpose” can he constructed. It is no more logical to say that “a lawful purpose” can be condemned, hut giving, the Act the interpretation they have requires that construction. As they construe the section, it would read:- ..

‘ ‘ The right and power of eminent, domain is hereby conferred upon municipal corporations to enter upon, take and condemn * * * other-lawful purposes. The term, or other lawful purposes., as used-in this section, shall include a waterworks system in its entirety,***”

Applying the rules of strict construction, the statute should be construed as relating to waterworks systems as. if it read:

“The right and power of eminent domain is hereby conferred upon municipal corporations to enter upon, take and condemn private property * * * for * * * a waterworks system in its entirety, or any integral part thereof, or any extension or betterment or improvement to an existing waterworks system operated by such municipal corporation.”

Under this construction, authority to condemn an existing waterworks, cannot be found in this section alone.

Nor do I agree with them that condemnation is a method of purchase. A condemnation is a taking. Even if full compensation must be made, the exercise of the power of eminent domain is no less a taking.

This does not mean that the city cannot proceed in this action under the very section of the statute wherein the majority finds authority. Ark. Stat. Ann. § 19-2317 (Repl. 1956), as amended, is basically § 14 (as amended) of Act 1 of 1875, the comprehensive “Municipal Code” then adopted. This section gives municipalities the “power to provide a supply of water by constructing or requiring [acquiring] by purchase or otherwise, wells, pumps, cisterns., reservoirs or. waterworks * * * ”. The bracketed word is supplied by the compiler of the statutes. His action in so doing was proper. It is a well-settled rule of statutory construction that statutes should receive a common-sense construction and where one word has been erroneously used for another and the context affords the means of correction, the proper word will be deemed substituted when the' intent is plainly deducible from other parts of the statute. Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602 ; Daniels v. Johnson, 216 Ark. 374, 226 S. W. 2d 571 ; Howze v. Hutchens, 213 Ark. 52, 209 S. W. 2d 286. The intention of the General Assembly to have used the word ‘ ‘ acquiring” is obvious.

An analysis of Act 1 of. 1875 indicates the explicit legislative intention that § 74 be the section governing proceedings for the condemnation of property, for proper municipal purposes authorized by the Act. § 7 gave authority to cities and towns, to supervise and control streets, highways, bridges and alleys. § 8 gave authority to establish and construct landing places, levees, wharves, docks, piers and basins. § ,15 authorized the provision of cemeteries. § 18 authorized establishment of streets, alleys, public grounds, wharves, landing places, market places, and construction of sewers and drains. § 30 prohibited any improvement requiring proceedings to condemn private property without the concurrence of two-thirds of the whole number of members of the council. The sub-title of the Act which precedes sections 74 and 75, both inclusive, is: “APPROPRIATION OF PRIVATE PROPERTY.” The title of § 74 is “Proceedings to appropriate private property to public use.” A reading of that section in its original form clearly shows that this section was intended to provide the means, and procedure for a city to acquire property for any of the municipal purposes provided for in the entire Act. Wharves, levees, parks, squares -ánd market places are enumerated. The phrase “other lawful purpose” was. used in the original Act. It could refer to nothing other than the lawful purposes of municipal government as therein provided, but not specifically enumerated in that section itself. I have not been able to find other authority existing upon adoption of the Act for the exercise of the power of eminent domain by municipal corporations for many of these purposes.

The intention of the General Assembly to enact a comprehensive statute covering all phases, of municipal government is clear. The title of the Act is, “AN ACT to be entitled an act for the incorporation, organization and government of municipal corporation.” § 95 was a general repealer. Ark. Stat. Ann. § 19-2317 and § 35-902 are simply §§ 14 and 74, respectively, of the 1875 Act and when read together clearly give a municipal corporation the power to acquire a waterworks by the exercise of the power of eminent domain, this, being one of the “other lawful purposes” contained in the Act as amended.

       Ark. Stat. Ann. §35-902 is part of this section as amended. .