author: George Rose Smith, J. Jim Johnson, Associate Justice

text:
    Faubus, Governor v. Fields.
    5-3618
    388 S. W. 2d 558
    Opinion delivered April 5, 1965

      Bruce Bennett, Atty. Gen., Beryl F. Anthony, Jr., Asst. Atty. Gen., for appellant.

      N. L. Schoenfeld, for appellee.
   George Rose Smith, J.

At the general election last November the people adopted Amendment 51 to the Arkansas Constitution, creating a permanent system of voter registration. The Amendment empowers the State Board of Election Commissioners to adopt rules and regulations, consistent with the Amendment, for the administration of the registration system. The State Board is also authorized to approve detailed specifications for the Affidavits of Registration, consistent with the Amendment.

In January of this year the State Board met and approved a form for the Affidavits of Registration. In drafting this proposed Affidavit the Board added two items of information not specified by the Amendment: The voter’s race and his party affiliation. The Board also provided that the Affidavit might be sworn to not only before the Permanent Registrar or his deputy, as the Amendment directs, but also before any other person authorized by law to administer oaths. The Board later adopted, upon the advice of the Attorney General, a set of rules which recite that the three changes just mentioned will not become effective until enabling legislation has been passed by the General Assembly.

This is a taxpayer’s suit brought by the appellees" against the State Board of Election Commissioners for a judgment declaring that the three changes made by the Board were unauthorized and void. The Board filed an answer again admitting that “enabling legislation must be provided before the additions to the Affidavits of Registration will be required by law. ’ ’ The chancellor entered a decree finding the first two changes to be invalid but upholding the provision that the oaths might be administered by persons other than the Registrar and his deputies.

We take judicial notice of the fact that while this appeal was pending the General Assembly completed its regular session without enacting the contemplated enabling legislation. In this court the Board has abandoned its former position and now insists for the first time that. it had the power to make all three changes without an enabling act.

We are firmly of .the opinion that the Board was right in its original limited view of its own powers. Section 6 of the Amendment enumerates in meticulous detail ten items of information that must appear in the Affidavits of Registration. We briefly summarize these requirements:

1. The voter’s name and, in the case of a woman, her designation as Miss or Mrs.
2. The voter’s exact address.
3. The State or country of the voter’s birth.
4. If the voter was foreign born, the manner in which he acquired his American citizenship.
5. The date of his birth.
6. The fact, if it be true, that the voter cannot read or write.
7. The fact, if it be true, that the voter is unable to make a mark or cross on the affidavit or the, ballot.
8. The voter’s school district and voting precinct.
9. The name and address under which the voter was last registered in Arkansas.
10. The signature of the Permanent or Deputy Registrar.

Section 6 of the Amendment closes with this sentence, upon which the Board strongly relies: “(c) The State Board of Election Commissioners may require blank spaces for additional information, including supplements to the Record of Voting Form.”

It is .true that if we closed our eyes to the rest of this Amendment and confined our attention solely to the literal meaning of this single sentence, we might with some plausibility uphold what really amounts to a contention on the part of the Board that it has the power to amend this part of the Constitution. It is, however, our duty to consider the Amendment as a whole and to harmonize its various provisions if this can be done. Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 55. Our endeavor, above all else, must be to ascertain the primary intent of the amendment and to give effect to that intent. Watkins v. Duke, 190 Ark. 975, 82 S. W. 2d 248. When, as here, two interpretations are permissible, we must not select one which allows the strict letter of the Amendment to defeat the dominant popular will. See Cockrill v. Dobbs, 238 Ark. 348, 381 S. W. 2d 756.

Section 6 of the Amendment was evidently drafted with much care. It enumerates the ten items of information that are to appear on the face of the Affidavits of Registration. It specifies the oath and the record of voting that are to appear on the back of the Affidavits. In this context we think it plain that subsection (c), upon which the Board relies, was intended merely to give the Board the power to implement the section as a whole, to the end that the designated items of fact might be obtained and sét forth with facility and with clarity.

Whether the voter’s race should be stated in the Affidavits and whether he should be compelled to disclose his party affiliation are obviously far-reaching questions of policy that could hardly have been ignored by the draftsmen of the Amendment. Their decision to omit those matters from the Affidavits was approved by the electors who voted to adopt the Amendment. "We find it impossible to believe that the people meant to confer upon an administrative board what in reality amounts to a broad power to amend the Constitution. Yet if we should sustain the Board’s authority to require a statement of entirely new facts not embraced within the enumeration contained in Section 6 we are unable to perceive the point at which the Board’s power would end.

If we had any misgivings about the correct interpretation of the Amendment our doubts would be set at rest by Section 19. That section provides in substance that the legislature may, by a two-thirds vote in each house, amend Sections 5 through 15 of the Amendment, so long as the amendatory legislation is consistent with the Amendment itself. It cannot reasonably be supposed that the people intended to confer both upon the State Board of Election Commissioners and upon the General Assembly the power to amend the. Constitution. It cannot reasonably be supposed that the people intended to confer upon a bare majority of the State Board of Election Commissioners a power so drastic, so extreme, that even the General Assembly should be permitted to exercise it only by a two-thirds majority. That Section 19 was inserted in the Amendment proves conclusively, we think, that the Board’s authority under Section 6 (c) is one of implementation rather than one of creation.

We are also of the opinion that the Board exceeded its powers in attempting to permit the oaths to be administered by someone other than the Begistrar and his deputies. Section 5 provides that eligible voters may register at the office of the Begistrar or at any other place designated by him. Section 6 (a, 10) directs that the Affidavit of Begistration be signed by the Begistrar or his deputy who receives the application. Section 9 (c) empowers the Begistrar and his deputies to administer the oaths to the Affidavits of Begistration. Section 9 (e) provides that if the voter is unable to register in person at the Registrar’s office by reason of sickness or disability the Registrar or his deputy may register the applicant at his home. We need not determine whether the legislature could, consistently with the Amendment, permit what might be regarded as absentee registration by allowing the oath to be taken before anyone authorized by law to administer an oath. In this case it is enough to say that the State Board is without authority to make this revision in the registration system.

A judgment will be entered in this court declaring all three of the changes in question to be ineffective and void.

Robinson and Johnson, JJ., dissent.

Jim Johnson, Associate Justice

(dissenting). From the inception of constitutional forms of government the courts have recognized that the rules of constitutional construction by necessity should be kept as simple as possible. The reason for this is obvious. A constitution is the paramount and fundamental law by which all citizens must be governed. The less complicated the interpretation the more readily the charter can be understood by those who are bound by its provisions.

The cardinal rules of constitutional construction have been stated and restated by this and other courts many times. The most basic of those rules are as follows :

1. “Where the language used in a constitutional provision is plain and unambiguous, the courts cannot seek other aids of interpretation.” Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586.

2. “It is the duty of the court to construe the Constitution as written.” Cannon v. May, 183 Ark. 107, 35 S. W. 2d 70.

3. “Courts must carry out constitutional provisions as indicated by language thereof, regardless of wisdom or expediency.” Hargraves v. Solomon, 178 Ark. 11, 9 S. W. 2d 797.

Applying these simple rules to the provisions of Amendment 51 to the Constitution of Arkansas, I agree with the majority that the State Board of Election Commissioners exceeded their authority in attempting to permit the registration oaths to he administered by someone other than the Registrar or his deputy. Section 5, Section 6(a) (10), Section 9(c) and Section 9(e) all make it crystal clear that only the Registrar or his deputies are to administer this required oath.

If the majority had applied the same rules to the construction of the remainder of the plain and unambiguous language of the amendment as it applied in its construction on this point there would be no need for this dissent.

Regardless of whether it was wise or expedient the framers of this amendment vested broad powers in the hands of the State Board of Election Commissioners. Some of these powers are enumerated in Section 5(c) as follows:

“The State Board of Election Commissioners is authorized and, as soon as is possible after the effective date of this Amendment, directed to prescribe, adopt, publish and distribute:

(1) Such Rules and Regulations supplementary to this Amendment and consistent with this Amendment and other laws of Arkansas as are necessary to secure uniform and efficient procedures in the administration of this Amendment throughout the State;

(2) A Manual of Instruction for the information, guidance and direction of election officials within the State; and

(3) Detailed specifications of the Registration Record Files, the Affidavits of Registration and other registration forms, all of which shall be consistent with this Amendment and uniform throughout the State.” [Emphasis ours.]

It doesn’t take a great deal of imagination to conclude that the State Board of Election Commissioners had, by this amendment, imposed upon them a herculean task requiring the faithful exercise of a large amount of discretion. The framers of this amendment apparently were not satisfied with one direction to the State Board of Election Commissioners (in Section 5, supra) to prescribe, adopt, publish and distribute detailed specifications of the Affidavits of Registration and other registration forms. They chose to reiterate and emphasize this directive in Section 6(c). There they used these words:

“The State Board of Election Commissioners may require blank spaces for additional information . . .” These are plain and unambiguous words and there is no reason to use other aids of interpretation. In fact we are, under the rules of construction, forbidden to do so. Now the Board not only had the right but the duty to treat these plain and unambiguous words as if they meant what they said. The record shows they did just that. On December 28, 1964, the Board met and to the best of their ability attempted to faithfully discharge their duties under the amendment. They met again on January 5, 1965, to confirm their action, as constitutionally charged by the overwhelming vote of the people. In these meetings they required “blank spaces for additional information.” They determined that the listing of race would aid in the proper identification of the voter just as the required designation of the sex of the voter and comparison of signature would tend to verify that the person voting was identical to the person who registered. In addition they determined that the listing of party would be of aid in the proper conduct of an election under a two-party system. These actions were taken and widely publicized prior to the convening of the General Assembly on January 11, 1965, and we take judicial notice of the fact that the “General Assembly completed its regular session without enacting” (or, according to the official journal, attempting to enact) any legislation tending to limit the authority of this Board.

The majority, in my view, summarily concluded that these two authorized requirements “defeat the dominant and popular will.” Neither the majority nor appelless attempt to point out just how the dominant and popular will differs from that so unmistakably and clearly expressed in the amendment. Certainly it cannot be said that these requirements are inconsistent with or repugnant to the spirit or the letter of Amendment 51. Nor can it be said that these requirements are not germane to proper registration when it is found that the law of a majority of the states provides for either one or both of these identical requirements.

If the self styled proponents of this amendment (who declined, neglected or refused to even cross appeal from the adverse ruling of the trial court on the oath administration feature of this case) had not wanted these plain and unambiguous words in the constitution, they should have prevailed upon the framers of the amendment to omit them prior to a vote of the people rather than wait until this late date to urge this court to remove the words for them.

A majority of the State Board of Election Commissioners did not amend the constitution. The same cannot be said for the majority opinion of this court.

For the reasons stated I respectfully dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Foster & Creighton Co. v. Jackson.
    5-3527
    388 S. W. 2d 563
    Opinion delivered April 5, 1965

      Graves & Graves and Barber, Henry, Thurman, Mc-Caskill & Amsler, for appellant.

      Shaver, Tackett é Jones, for appellee.
   Paul Ward, Associate Justice.

On July 12, 1963 George Jackson (appellee herein) was severely injured while on land under the control of Poster & Creighton Company (an appellant herein) by and through its agent and employee, Charlie Howell, (also appellant herein). Hereafter Jackson may be referred to as “appellee”, the first mentioned appellant as “company”, and Howell as “agent”. A brief summary of the essential facts and circumstances pertaining to this case are presently set forth below. These facts and circumstances are either undisputed or they are sustained by substantial evidence.

The company is a Tennessee corporation (authorized to do business in Arkansas) engaged in the business of constructing hard-surface or concrete roads. At all times pertinent the company was engaged (under contract) in constructing Interstate Highway 30 through the City of Little Rock. To facilitate the handling of the large amount of cement required the company leased a portion of a railway yard from the Chicago Rock Island and Pacific Railway Company near the intersection of Bast Fourth Street and Byrd Street within the City of Little Rock. The company maintained a huge cement storage bin or tank located some twenty or thirty feet south of the leased railroad spur or track. In order to transfer the cement (from a railroad car placed on the spur) the company maintained an electrically driven underground auger about sitxeen feet long running south from the spur toward the large storage bin. This auger, which had nine inch screw blades, rested in a metal box just beneath the surface of the ground — -the box being covered with metal plates approximately fourteen inches wide and sixteen to seventeen inches long. These plates were removable. The company’s agent (Howell) was in complete charge of the premises and fixtures just described.

The injury to appellee occurred in this manner— when appellee arrived with a large truck-trailer load of cement for delivery to the company, the agent directed him to back the truck up alongside the spur track where an empty railway car had been placed. The rear portion of the trailer was close to the empty car, about two feet from the auger. "When the truck was parked the agent and appellee completed arrangements to pump the cement from the truck to the car on the spur. Then appellee started the pump on his truck, and the agent removed a plate covering the auger and turned on the electric motor on the auger. Thereupon the agent left to get a drink and he heard appellee hollering. The agent hurried back and found appellee’s leg was caught in the auger. According to appellee he had walked around the truck, to perform his duty, when his left leg was caught in the auger where the agent had removed the metal plate.

Appellee’s leg remained in the auger (which had been stopped by the agent) from forty five to sixty minutes, when it was cut loose with a blow torch. During all this time appellee was conscious and suffered great pain. He was removed to a hospital where his leg was amputated about three inches above the knee. After twelve days appellee was removed to his home near Foreman where he was given further medical treatment.

A trial resulted in a jury verdict and a judgment in favor of appellee in the amount of $125,000. Appellants now seek a reversal on two grounds: One, the trial court erred in giving appellee’s instruction number 8; Tivo, the judgment is excessive.

One. Instruction number 8 reads as follows:

“In this case, the plaintiff alleges that one or more of the defendants were negligent in one or more of the following particulars:
“(a) In permitting, maintaining and operating an open and unprotected underground auger, so camouflaged and concealed by cement that the openings in the auger encasement were unnoticeable and the auger invisible — knowing, or by the exercise of ordinary care and precaution should have known that persons coming in contact therewith would likely by injured.
“(b) In permitting, and engaging in, hazardous operations upon premises to which the plaintiff and others were exposed without providing safeguard devices for the protection of plaintiff and others.
“(c) In failing to warn plaintiff of the auger operations and the danger of walking in the vicinity of the auger.
“(d) In failing to keep a proper lookout for plaintiff and others properly upon the premises, and
“ (e) In permitting and maintaining unsafe premises for plaintiff and others properly upon the premises.
■ “In order to recover, the plaintiff claiming damages has the burden of proving each of three essential propositions:
“First: That he sustained damages.
“Second: That the party or parties from whom he seeks to recover was negligent, and
“Third: That the negligence of the party, or parties, from whom lie seeks to recover, was the proximate cause of the mishap.
“In the defense of the claim of George C. Jackson, each of the defendants denies any negligence on the part of either of them; denies the extent of damages claimed; and alleges that Plaintiff George C. Jackson negligently caused his own injuries in one or more of the following particulars:
“(a) In failing to exercise ordinary care for his own safety.
“(h) In assuming the risk of injury and damages, and
“ (e) In failing to keep a proper lookout, knowing, or by the exercise of ordinary care and precaution should have known, that the auger was in operation.
“A party who asserts the defense of negligence on the part of one claiming negligence has the burden of proving this defense.”

Appellants objected to the above instruction:

“. . . for the reason that said instruction is an incorrect declaration of the applicable law, and is not supported by the evidence introduced during the trial of the case; and further, that it imposes upon defendants a degree of care higher than is required by law.”

In addition to giving appellee’s requested instruction No. 8 the court gave fourteen other separate instructions requested by appellee and ten separate instructions requested by appellants. Suffice to point out that these several instructions covered the contentions and theories of the case for both sides.

For two reasons we are unable to find any reversible error in the giving of said instruction number 8: (a) The objection was insufficient and (b) The instruction was a correct declaration of the applicable law.

(a) It is obvious that instruction number 8 covers several distinct features of the case and the law, but the objections fail to call to the attention of the trial court any specific objectionable wording, or rule of law. The trial court was entitled to have a specific objection of this type so that it might make any necessary correction. This well established rule was clearly set forth in the early case of Missouri & North Arkansas R.R. Co. v. Duncan, 104 Ark. 409, 415, 148 S. W. 647. Among other things it was there said:

“The purpose of making an objection specifically to an instruction is to call to the attention of the trial court the exact error complained of, so as to give it an opportunity to correct the instruction in that particular. ’ ’

(b) Appellants ably argue in their brief to the effect that instruction number 8, in requiring them “to keep a proper lookout for plaintiff and others properly upon the premises”, imposed upon them a greater burden than the law requires. We cannot agree with this contention of appellants, and they cite no authority directly in point to sustain it. The rule which we think is applicable in this case was stated by this Court in •the early case of Hobart-Lee Tie Co. v. Keck, 89 Ark. 122, 128, 116 S. W. 183, as follows:

“In the case of St. Louis, I.M. & S. Ry. Co. v. Dooley, 77 Ark. 561 [92 S. W. 789], the court said: ‘The bare permission of the owner of private grounds to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces or leads them to come upon his premises, he is liable in damages to them — they using due care — for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it, and he failed to give timely notice thereof to them or the. public.’ ”

To the same effect, see St. Louis, I.M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S. W. 92, and Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S. W. 712. Likewise, in the case of Armour & Co. v. Rose, 183 Ark. 413, 36 S. W. 2d 70, it was held appellant was required to keep a guard (or lookout) at an unlighted elevator shaft to protect an invitee. At pages 423-424 of the Arkansas Reports, this Court said:

“The rule is also well established that a licensee who goes upon the premises of another for that other’s purpose by that other’s invitation, is no longer a bare licensee. He becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for violation of that duty the owner is liable if injury results to the invitee by reason of the negligence of the owner. [Cases cited.]”

In the case here under consideration there can be no doubt (in fact appellants do not attempt to deny) that appellee was an implied invitee upon the premises; it is not even contended by appellants that appellee was told about the exposed auger, nor is it shown that he by the exercise of due care should have known of the existing hazard. All issues concerning appellee’s contributory negligence and assumption of the risk were properly submitted to the jury without objection. It is our conclusion therefore that the trial court did not commit reversible error by giving instruction number 8 number the. facts and circumstances heretofore set out.

"Two. The only other contention raised by appellants on appeal is that the judgment, in the amount of $125,000, is excessive and should be reduced by us. Again, we cannot agree with appellants, even though the contention (as is usual in such cases) does give us some concern. The rule which we must apply here is the one put into appropriate words' by the late Justice Holt, in the case of Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647, where it was stated:

“Under our well established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice or so grossly excessive as to shock the conscience of the court.”

It must be admitted that the above rule is not always easy to apply in all cases with uniformity, because everyone’s conscience may not be equally susceptible to shock, and conscientious judges do not always agree on what constitutes substantial evidence. Nevertheless, we do not seem to be able to frame a better rule because we have subsequently approved almost verbatim the above rule on several occasions. Beggs v. Stailnaker, 237 Ark. 281, 372 S. W. 2d 600; Williams V. Clark, 238 Ark. 447, 382 S. W. 2d 366. See also the case of Fred’s Dollar Store v. Adams, 238 Ark. 468, 382 S. W. 2d 592 where we said:

‘4 The ultimate question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. ’ ’

Appellants cite several cases where we have reduced jury verdicts, using the same rule above set out. But, as was said in the Adams case, supra, 4 4 In a case of this kind precedents are of scánt value. No two cases are so nearly identical that essential points of difference cannot be found.”

We think the testimony sustains the full amount of the judgment. The great weight of the testimony shows that, as a result of the accident and the loss of his leg, appellee’s loss in wages (when reduced to its present value) amounts to approximately $76,000. Add to that amount the sum of $2,500 expended (and to be expended) for hospital and medical expenses. It is undisputed that appellee’s leg was caught in the auger for forty five to sixty minutes during which time he was conscious and suffered such excruciating pain that he thought he was going to die, and that when released he was taken to a hospital where his leg was amputated three inches above the knee. Not only has appellee already suffered pain as above described, but the testimony shows that he will always suffer what is known as “phantom limb pains”. It is difficult to envision a situation where one could suffer more pain and anguish than appellee suffered during the time his leg was in the clutches' of the blades of this auger, being conscious and not knowing if he would survive. There is nothing which indicates to us the jurors (in reaching their verdict) “were motivated by passion or prejudice”.

In consideration of what has been pointed out above we are unwilling to say the size of the judgment rendered herein is excessive.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Lindsey v. Mid-State Homes.
    5-3487-3489, 3490, 3491 and 3492
    388 S. W. 2d 551
    Opinion delivered April 5, 1965

      W. H. Shidse, for appellant.

      Russell & Hurley and Wright, Lindsey, Jennings, Lester & Sludts, for appellee.
   Sam Robinson, Associate Justice.

Jim "Walters Corporation, a company engaged in constructing and selling partly finished houses, sold some of such houses to appellants, taking notes secured by mortgages for the unpaid balance of the purchase price. The Walters Company sold the notes to appellee, Mid-State Homes, Inc., at a discount. The appellants herein, makers of the notes, defaulted, in the payments and Mid-State filed suits to foreclose the mortgages. Appellants defended on the theory that a usurious rate of interest was charged. The cases were consolidated; there were decrees in favor of the owner of the notes, and the makers of the notes have appealed.

The issue is whether a usurious rate of interest was charged on the unpaid balance of the purchase price of houses sold to appellants, A. B. Lindsey, et al. Several sales are involved; the facts are the same in each so far as the application of usury laws is concerned.

Jim Walters sold houses to appellants for a certain sum; a small amount was paid on the purchase price, the balance to be paid in monthly installments; a little less than 10% per annum was charged as interest on the unpaid balance. Jim Walters sold the notes for the unpaid balance to Mid-State Homes, Inc., its wholly owned subsidiary, at a discount of 20%. Appellants contend that the transactions amounted to usury under the decision in Hare v. General Contract Purchase Corporation, 220 Ark. 601, 249 S. W. 2d 973. We said in the Hare case:

“If the seller, whether he has quoted two prices to the purchaser or not, subsequently transfers the title document to an individual or company which is engaged in the business of purchasing such documents, at a price which permits the transferee to obtain more than a return of ten per cent (10%) on its investment, then a question of fact arises as to whether the seller increased his cash price with the reasonable assurance that he could so discount the paper to such individual or finance company. If that reasonable assurance existed, then the transaction is in substance a loan and may be attacked for usury.”

The evidence shows that Jim Walters did take the notes, bearing interest just under 10% per annum, knowing it could sell the notes to its subsidiary, Mid-State, at a discount of 20%. Of course, if the principal and interest were finally paid, Mid-State would make on its investment a good deal more than interest at the rate of 10% per annum. Under the decision in the Hare case, a situation of this kind gives rise to the question of whether the transaction is usurious. The Chancellor held that it was not usurious and we cannot say the Chancellor’s finding of fact is against the preponderance of the evidence. Although there is some evidence that Jim Walters charges a little more for houses in Arkansas than it does in Oklahoma because of the “closing cost”, the undisputed evidence is that there is only one price on the houses sold in Arkansas. If anyone should pay the entire purchase price in cash, it would be the same as the principal sum if he bought on the installment plan.

We specifically point out that our decision here is based on the fact that the record does not show the findings of the Chancellor to be against the preponderance of the evidence in this case. We do not mean to impair the Hare ease, or such cases as Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S. W. 2d 802.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    City of Fayetteville v. Fayetteville Suburban Water Dist. No. 1.
    5-3505
    388 S. W. 2d 548
    Opinion delivered April 5, 1965

      Bass Trumbo, Smith, Williams, Friday & Boxoen, by Eerschel E. Friday and John G. Echols, for appellant.

      Dickson, Putmcm, Millwee & Davis, for appellee.
   Jim Johnson, Associate Justice.

This suit involves a contract between a city and a suburban water district for construction and operation of a water distribution system and. the improvement district bonds issued pursuant to the contract.

Appellant City of Fayetteville entered into a contract on April 10,1950, with appellee Fayetteville Suburban Water District No. 1 of Washington County. The city was to build a water distribution system in the district, to be owned by the city, with construction to start when the district put up the estimated $82,000 construcion costs. The district issued 86 improvement district bonds in the principal sum of $82,000, maturing over a period of twenty years. The water distribution system was constructed at an approximate cost of $58,000, and once in service, the city paid one-half of the revenue from users within the district back to the district, as provided in the contract, until March 1963. At that time the city, having acquired the outstanding bonds, refused to make further payment to the district of one half of the revenues collected from water users within the district. The district up to that time had paid a number of the bonds as they matured and called others before maturity, so that by September 2, 1959, only two bonds remained outstanding. Bond No. 55 for $500 was due September 1, 1964, and bond No. 86,. also for $500, was due September 1, 1970. In 1962 the city purchased the two bonds for about $1,500. In May, 1963, the city attempted to cancel the bonds and ££ forgive the indebtedness, for the purpose of ending the city’s liability under the contract to pay water revenues to the district. The district refused to accept the bonds or honor the cancellation, with the express intention of requiring the city to pay one-half of the water revenues under the contract until bond No. 86 matured in 1970 or was earlier called.

After the city stopped paying water revenues to the district, the district filed suit on November 27, 1963, in Washington Chancery Court for an accounting of the water revenues, to compel payment of water revenues due at the time suit was commenced and for a declaratory judgment that the city was obligated to continue paying revenues until 1970 or until earlier payment by the district of all its bonds.

In its decree of August 7, 1964, the chancery court ordered, inter alia, (1) the city to pay to the district one-half of the water revenues then unpaid but accounted for, (2) accounting and payment of revenues for the quarter ending June 30, 1964, and (3), payment of one-half of the revenues “for all calendar quarters beginning July 1, 1964, until all bonds issued by [the district] are paid or until September 1, 1970, whichever occurs first,” The city has appealed from the decree and suihmarizes the issues on appeal as follows:

(1) whether any bonds of the district are “outstanding and unpaid” within the meaning of the contract ;
(2) whether, because of the irregular call used by the district, the obligation of the city to share water revenues is at an end;
(3) the maximum limits of the city’s liability under the contract.

Appellant’s first contention is that there are no bonds outstanding because the city purchased the only two outstanding bonds, cancelled them and offered them back to the district, thus terminating the city’s liability under the contract. Appellant has offered us naked legal negotiable instrument authority in support of its action cancelling the bonds, but we are not persuaded it controls in this unique contract case. A court of equity, doing, equity, could not sanction such a subterfuge by a party to a valid contract to the detriment of other contracting parties and in contravention • of the express intention of the contract.

Appellant next contends that “the obligation of the city to share water revenues has terminated because no bonds of the district would be ‘outstanding and unpaid’ if the district had called its bonds for redemption prior to maturity in accordance with the terms of the contract between the district and its bondholders.” In the pledge and on the face of each bond is the provision that any call prior to maturity would be in inverse numerical order. The last bond was No. 86. In 1951, the district called bonds numbered 71 through 85, leaving No. 86 outstanding. There was no objection from any of the then bondholders, and we find no basis on which the city, on becoming a bondholder eleven years later, can now object.. There is provision in the contract' (infra) for calling the bonds at the option of the district, but there ■is no contract provision for calling the bonds in inverse order. It is clear, therefore, such provision contained in the pledge and bonds here involved was solely for the benefit of the obligor district.

It -would be informative here to quote one particularly pertinent paragraph of the contract sued on:

“It is understood between the parties hereto that the funds to be furnished by the District will be derived from the sale of suburban improvement district bonds in the principal sum of $82,000.00 and maturing over a period of twenty years and bearing interest at a rate not to exceed four per cent and that one-half of the revenues due to the District by the City shall be paid so long as any bonds are outstanding and unpaid or for a period of not longer than twenty years, whichever is sooner but the District shall not be obligated to call any bonds prior to maturity and. may, if it so desires, refund to those persons entitled thereto, so much of their assessments as the District shall elect out of any surplus revenues of said District, whether derived from unexpended construction funds, collections or assessments of benefits or revenues of said District.”

The last matter for our consideration is the maximum limits of the city’s liability under the contract. We made reference earlier to “the express intention of the contract.” A four-corner perusal of the contract and the whole context of the agreement, particularly the-paragraph quoted above, reveal patently that the contract contemplated reimbursement of the district’s outlay, but certainly it was never intended for the district to make a profit. The city admits that the district will have paid $95,239.96 in discharging its final total obligation under the bond project. The city properly offered proof that it had paid the district $50,973.35 under the contract. This leaves $44,266.61 remaining yet to be paid. The construction costs totaled only $58,588.41, leaving an initial surplus of borrowed money of $23,411.59 ($82,-000.00 minus $58,588.41). Deducting this $23,411.59 from the unpaid $44,266.61 leaves a balance of $20,855.02 remaining to be paid to the district as final reimbursement of the district’s outlay. Appellee suggests in argument that a number of expenses were incurred by the district through the years for which it should be reimbursed. To determine which of these expenditures were legitimately chargeable to the city would require a detailed accounting and, forseeably, extensive and prolonged litigation. On trial de novo it is our view that these expenses are a small price to pay for the benefits which have accrued to the district .(such as the location of industry), made possible by the creation of the district. Applying the rule that £ £ equity seeks justice rather than technicality, truth evasion, common sense rather than quibbling,” the decree is modified and remanded for entry of a decree requiring the city to continue share revenues according to the contract until it has made the district whole by paying the remaining balance of $20,855.02.


author: Frank Holt, Associate Justice.

text:
    Deltic Farm & Timber Co. v. Manning, Adm’x.
    5-3446
    389 S. W. 2d 435
    Opinion delivered April 5, 1965
    [Rehearing denied May 17,1965.]
    Crumples, ■& O’Connor, William J. Wynne, for appellant.

      Bernard Whetstone, for appellee.
   Frank Holt, Associate Justice.

This action resulted from an almost direct head-on collision between two trucks. The appellee brought this action seeking to recover damages resulting from the death of her husband, Roy Manning, alleging that the collision was caused by the gross and culpable negligence of the appellant, R. C. Brown, Jr., who was an employee of appellant Deltic Farm and Timber Company, Inc. The appellants answered denying any negligence on their part and pleaded Manning’s carelessness and negligence in bar of appellee ’s right to recover. The appellants filed a motion for a summary judgment pursuant to Ark. Stat. Ann. § 29-211 (Repl. 1962). The motion was overruled by the court. Immediately prior to trial appellants renewed their motion for a summary judgment and again it was overruled by the court. The appellee filed no formal answer or counter affidavits to either motion. At the close of appellee’s testimony and again at the conclusion of all the testimony appellants filed motions for directed verdicts both of which were overruled by the court. The jury returned a verdict in the amount of $2,500.00 for the benefit of the estate and nothing for the widow and children. From the judgment on this verdict appellants bring this appeal. There is no cross-appeal.

For reversal appellants first contend the court erred in refusing to grant their motion for a summary judgment. Appellants argue that the pleadings, depositions and affidavits reflect that no genuine issue as to any material fact exists- and, therefore, as a matter of law the court should have rendered a summary judgment. We think the trial court correctly refused appellants ’ motion for a summary judgment. It is well settled that any testimony submitted with a motion for a summary judgment must be viewed in the light most favorable to the party against whom the motion is made with all doubts and inferences being resolved against the movant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89. With this in mind we proceed to review the evidence in the light most favorable to appellee.

The deposition of the appellant R. C. Brown, Jr., was one of the depositions submitted by the appellants in support of their motion for a summary judgment. According to appellant Brown’s deposition, an employee of appellant Deltic Farm and Timber Company, Inc., he was driving their truck to work early in the morning when the accident occurred on a clear day upon a straight stretch of a rural gravel road; the road was of average width with enough room for two vehicles to meet and pass each other; appellant Brown met a school bus which was creating a dense cloud of dust; the school bus was of unusual width as compared to a normal vehicle; there were shallow ditches on both sides of the road; appellant Brown, traveling approximately 30 to 35 miles per hour, did not reduce his speed as he approached, passed the school bus and entered the cloud of dust so dense that he could not see more than 10 to 15 feet ahead of him. Before entering the dust he never saw the truck being driven by the deceased who was following the school bus. According to appellant Brown there was no difference in the density of the dust from the point where he first observed the approaching bus until he passed it. He didn’t know how much visibility he had into the dust before entering it. According to him, “I wasn’t watching the dust. I was watching the bus and the road.” The collision occurred almost immediately as he entered the cloud of dust and just as he saw the outline of the deceased’s truck in front of him partially blocking his path and before he had time to put his foot on the brake. According to appellant Brown the impact of liis truck knocked the deceased’s truck backward approximately 6 feet and to Brown’s left. Appellant Brown’s vehicle followed the backward direction of Manning’s vehicle for the 6 feet and to appellant’s left.

A motion for a summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646. Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be clrawn and reasonable men might differ, then a motion for a summary judgment is not proper. Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F. 2d 341 (5th Cir. 1950). We are of the view that the testimony of appellant Brown as reflected by his deposition is alone sufficient to raise a factual issue about which the minds of reasonable men might differ whether controverted or not. We cannot say that as a matter of law appellants were entitled to a judgment.

Appellants further contend for reversal that the appellee has not met the required burden of proof to establish appellants’, negligence and that such negligence was a proximate cause of the alleged injuries and that the injuries were the natural and probable consequence of appellants’ negligence and that such should have been foreseen. Appellants also contend that appellee is not entitled to a recovery if the negligence of Manning equaled or exceeded the negligence of appellants, and the court erred in refusing to grant appellants’ motions for a directed verdict. Thus, in effect, appellants question the sufficiency of the evidence to sustain the verdict of the jury.

The evidence previously discussed in appellant Brown’s deposition in support of appellants’ motion for summary judgment was also submitted to the jury. We have already said that his deposition alone created a factual issue and, therefore, the motion for summary judgment is the same as that which underlies a motion for a directed verdict. Russell v. City of Rogers, supra. In addition the appellee presented other evidence including the bus driver as a witness. He testified that the two vehicles approached each other' in the center of the road “where everybody was driving. * * * When I first met it [Deltic truck] it was in the center of the road. He pulled over out of the center and put one wheel in this rut over what I was traveling in' and one over here on the shoulder and I pulled over and one wheel on my side and one out in the other direction. ’ ’ According to the bus driver, it created more dust when he pulled out of the ruts onto the soft portion of the road. He couldn’t tell that appellant Brown “slowed down a bit”.

There was also evidence that Manning made a dying declaration that ‘ ‘ A big white thing just came down on me. I tried to get out of its way, but I couldn’t.” Further, that he “was driving behind a school bus and the school bus made a quick puli' over to the right and it was so much dust that it blinded him and he couldn’t see and he said he stopped or almost stopped and said this truck hit him about the time he saw it. * * * he said he tried to get out of the way. He said, ‘I didn’t have time. ’. ’ ’

We have often held that in determining the sufficiency of the evidence to sustain a verdict, the evidence must be viewed with every reasonable inference deducible therefrom in the light most favorable to the appellee and if there is any substantial evidence we must affirm. Arkansas Tower & Light Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; Davis v. Bullard, 231 Ark. 898, 333 S. W. 2d 481; Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226 and [second appeal] 232 Ark. 165, 334 S. W. 2d 875.

Without reviewing further evidence, we are of the view that there is substantial evidence in the case at bar to submit the issues to the jury and to sustain its verdict. The jury might have found that appellant Brown was more negligent than Manning since Brown, with the opportunity to observe the driving conditions he was about to encounter, elected not to check his speed or stop but instead, entered a blinding dust cloud while driving approximately 35 to 40 miles per hour. Also, the jury might have believed from the evidence that Brown, after pulling from the center of the road in order to pass the bus, cut back to the left to avoid the roadside ditch and resume his course in the center of the road resulting in the almost head-on collision. The jury could have believed that Manning was caught unexpectedly in an emergency when the school bus pulled to the right thus placing him in a perilous position as he attempted to stop.

Since appellants do not question the instructions, it appears that all issues were presented to the jury under proper instructions. The finding of the jury was in the form of a general verdict by which the sum of $2,500.00 was awarded for the benefit of the estate and recovery denied individually to the widow and adult children. • It would appear by this modest verdict that the jury considered any comparative negligence of the parties.

Appellants’ final contention is that the court erred in permitting over their objection the introduction of a certified copy of letters of administration for the purpose of establishing that the appellee was the duly and legally authorized personal representative of the decedent’s estate. Appellants argue that the letters of administration lacked authentication in requisite form. We find no merit in this contention. Appellee alleged in her complaint that she was the duly qualified and acting administratrix of her deceased husband’s estate by the appointment of the Fourth District Court of Ouachita Parish, Louisiana. This allegation was not expressly denied. She was permitted to testify without objection that she was the duly appointed administratrix. Therefore, we are of the view that the introduction of the certified copy of the letters of administration instead of authenticated copies was not prejudicial error.

Affirmed.


author: Carleton Harris, Chief Justice. Bn. F. McFaddin, Associate Justice

text:
    Ark. State Highway Comm. v. Kesner.
    5-3427
    388 S. W. 2d 905
    Opinion Delivered April 12, 1965.

      Mark E. Woolsey and Don Langston for appellant.

      Edgar E. Bothell and William M. Stocks, for appellee.
   Carleton Harris, Chief Justice.

Mr. and Mrs. W. C. Kesner, appellees herein, own Lot 37 in the Eastern Hills Addition to the City of Fort Smith. This lot lies at the northwest corner of the intersection of Grand Avenue and Sixtieth Terrace. Grand Avenue runs east and west, and borders the south side of the lot. Sixtieth Terrace runs north and south, and borders the east side of the lot. The Kesners’ house on this corner lot faces east toward Sixtieth Terrace, connected to that street by a sidewalk. On the south side of the house is' located the garage and driveway, which enters upon Grand Avenue.

The Arkansas State Highway Commission, appellant herein, is constructing Interstate Highway No. 540. This highway runs north and south through the Eastern Hills Addition, somewhat parallel with Sixtieth Terrace, and east of it. The Kesner home faces the new highway. In constructing this highway, the commission has not taken any part of the Kesner lot; it has taken by eminent domain the lots across Sixieth Terrace from the Kesner lot, and a part of Sixtieth Terrace, in the shape of a right triangle, has also been taken. The hypotenuse of the triangle is the right of way line; this line starts on the east side of the street, about fifty feet north of the Kesner lot, and runs southwesterly across the street until it reaches the southeast corner of the Kesner lot, this point being the location of the intersection of Grand Avenue and Sixtieth Terrace. Roughly along this right of way line, the commission has constructed a guard rail across Sixtieth Terrace.. This rail is a barricade which closes off Sixtieth Terrace from Grand Avenue. On its side of the rail, the Highway Commission has lowered the grade of Sixtieth Terrace, and has constructed an access road from the new! highway onto Grand Avenue. I

The Kesners instituted suit in the Sebastian Chan-eery Court, asking that the commission be enjoined from taking or damaging their property without paying for it. The complaint alleges a loss of ingress and egress to- and from the property, because of the barricade,- and the taking of part of Sixtieth Terrace. It is further asserted that the free course of view, light and air will be impaired, ahd. that the market value of their property'will be diminished. The complaint was subsequently amended to allege further damage, because of the violation of certain restrictive covenants.

Appellant answered, denying that the Kesners ’ property had been taken or damaged, and further asserting-that even if damage had occurred, it was non-compensable.

The cause was heard' by the court under a stipulation that the only question to be decided was that of liability; the question of amount of damages (if the court found liability) was reserved.. After hearing the evidence, the court found that appellees had sustained damage by virtue of the fact that a right of ingress and egress had been lost; that damage had also been sustained by reason of restrictive covenants, and that the Kesners were entitled to just compensation for the diminution in value of their property. An injunction was granted against the commission, but was suspended, because that body had posted a $10,000 bond. From the finding of liability for damage done the Kesner property, appellant brings this appeal.

Appellees asked the court to require a $15,000 cash deposit in lieu of the $10,000 bond, but the court refused this prayer, and appellees have cross-appealed from the provision of the decree suspending the injunction, and the court’s refusal to order the $15,000 cash deposit in lieu of the $10,000 bond.

In its opinion, the court mentioned that appellees were not entitled to recover for noise, dust, etc., and we approve and affirm this finding. Campbell v. Ark. State Hwy. Commission, 183 Ark. 780, 38 S.W. 2d 753.

We first dispose of the court’s finding of damage suffered because of restrictive covenants contained in a Bill of Assurance filed in 1955, which provided, inter alia, that no lot in Eastern Hills should be used except for residential purposes; that nothing should be done which might become an annoyance or nuisance to the neighborhood, and other restrictions which we do not set out because we find that these are not elements of damage for which appellees can be compensated. This same issue was raised in the case of Arkansas State Highway Commission v. McNeill, 238 Ark. 244, 381 S.W. 2d 425, and determined adversely to appellee’s contention. The litigation presently before us was decided by the Chancellor before our opinion was rendered in McNeill, and appellees ’ brief on this point consists of a plea to reconsider our holding' in that case. We decline to do so, feeling that that decision is entirely sound. It follows that appellees are not entitled to compensation for this alleged damage, and the Chancellor’s findings that this is a compensable element of damage is therefore reversed.

One of the main questions is whether the loss of ingress and egress to Sixtieth Terrace constitutes compensable damage. It might be first stated, as a general principle, that, before a landowner can recover for damage to his property where there has been no actual taking, he must suffer direct and substantial damage peculiar to himself, and not suffered by other members of the public, and this is true., even though he may be actually more inconvenienced that the public in general. Arkansas State Highway Commission v. McNeill, supra. It is not enough that a landowner show that his damage is different from that suffered by the general public. He must show that a property right has been invaded, and the fact that the value of his lot has diminished is not, within itself, sufficient to establish special compensatory damages. Wenderoth v. Baker, 238 Ark. 464, 382 S.W. 2d 578. Certain other conditions may arise, which might appear damaging to a complaining landowner, but which, under the law, are not compensable. We have held that circuity of travel, i.e., being compelled to go a few blocks out of the way is not compensable. Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949. Here, appellees can enter onto Grand Avenue, travel to Fifty-ninth Terrace, turn to the right, and travel back to Sixtieth Terrace, and to their property.’-

Áppellant says that appellees have not lost the right of ingress or egress to and from their property, because of this access to Grand Avenue. In fact, this is the entrance that has consistently been used by the Kesners since building their home. The garage is on the south side of the house, and the driveway enters onto Grand Avenue. There is not, and has never been, a driveway onto Sixtieth Terrace. Accordingly, it is vigorously argued by the Highway Commission that the right of ingress and egress has not been distributed in the slightest. However, we think the commission, in making this argument, overlooks a basic right of an abutting property owner, for the right of access to a street or highway is one of the incidents of the ownership or occupancy of land abutting thereon. In Volume 25, Am. Jur., Section 154, Page 448, it is said:

“* * # Such right is appurtenant to the land, and exists when the fee title to the way is in the public as well as when it is in private ownership. It is a property right of which the owner cannot be deprived without just compensation. This basement extends to the full width of the street.”

The commission is correct in stating that as far as driving onto Grand Avenue from Sixtieth Terrace is concerned, appellees have not suffered any compensable damage by the state’s erection of the barricade, because this is a damage common to the traveling public.

But there may be another reason why the loss of access to 'Sixtieth Terrace will have a particular effect upon appellees. Prom the time of construction their garage and driveway, appellees have backed out into Grand Avenue, and proceeded in either direction. However, a median has now been placed in the center of Grand Avenue, and, if the Kesners desire to go east on Grand Avenue, it is necessary that the car be backed entirely across the break in the median to the other side of the street. If desiring to travel west, appellees must back their car into the street to the right, or with the back of the vehicle toward the east. It is true that the last mentioned has always been necessary, but appellees contend that the situation has now changed, because of the contemplated flow of traffic, and the erection of the barricade.

The testimony reflects that, prior to the construction by the commission, there was no obstruction to one’s vision, and accordingly a person could observe approaching ■traffic from the east as far as the eye could see; however, with the change of grade, and the lowering of the access road onto Grand Avenue, it appears that, in backing out of their garage, appellees will only be able to observe approaching traffic (off the hew highway) from the east for approximately 100 to 150 feet. Such a situation, of course, will be dangerous, and will likely require some sort of change in appellees’ method of entering onto Grand Avenue.

Appellees argue that they have beén specially damaged, since they can no longer extend their present driveway to Sixtieth Terrace (because of the guard rail and change in grade). It is true that this would have been the logical plan to have followed in order to avoid the traffic on Grand Avenue. Of course, it may be. that appellees will be able to build a ‘ turn around, ’ ’ and drive forward onto Grand Avenue. Actually, it appears from plaintiffs’ exhibit No. 16 that appellees presently can back immediately to the east, when leaving the garage, and then proceed in a forward direction onto Grand, though this last cannot be definitely ascertained.

Be that as it may, we think the evidence reflects that appellees have suffered direct and substantial damage peculiar to themselves; i.e., not suffered by other members of the public, and, what is of equal significance, not suffered by any other person whose property abuts Sixtieth Terrace. Owners of Lots 32, 33, 34, and 35 have full access to Sixtieth Terrace, but more than half of Sixtieth Terrace (now on east side of rail), abutting Lot 37, has been completely destroyed.

In Little Rock and Ft. Smith Ry. Co. v. Greer, 77 Ark. 387, 96 S.W. 129, this court, citing an earlier case, said:

‘ ‘ The owner of premises abutting upon a street in a city or town may recover from a railroad company the damages resulting to his premises by the construction of its roadbed or other structures on its right of way along the street in such manner as to obstruct access to the premises, though he have no interest in the fee of the street, and no part of his premises be taken and the road or other structure be skillfully built.”

In Camphellv. Ark. State Highway Comm., supra, we said:

‘ ‘ The right of eminent domain in the premises is conceded in the Arkansas Highway Commission, but it is insisted that this right is and must, under our Constitution, be subordinate to the right of the property owners to be first compensated for the damages to their property by the construction of the bridge and the approaches thereto. Their claim is based upon the guaranty given by § 22 of the Bill of Rights of our present Constitution, which provides that private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor. It is claimed that under it, whether the property is taken or not, if it has been damaged by reason of the construction or operation of any improvements made for the use of the public, the owner may recover whatever damage the property has actually sustained. Under our decisions, the owner of property abutting upon a street or highway has an easement in such street or highway for the purpose of ingress and egress which attaches to his property and in which he has a right of property as fully as in the lot itself; and any subsequent act by which that easement is substantially impaired for the benefit .of the public is a damage to the lot itself within the meaning of the constitutional provision for which the owner is entitled to compensation. The reason is that its easement in the street or highway is incident to the lot itself, and any damage, whether by destrucion or impairment, is a damage to the property owner and independent of any damage sustained by the public generally.”

The court, in this case, also stated that special damages can be suffered because of a change in grade.

We have reached the conclusion that the market value of appellees ’ property has been reduced by the destruction of Sixtieth Terrace, abutting their premises, and they are entitled to compensation therefor.

The order under review, as we have indicated, finds that the appellees are entitled to compensation, but it withholds a determination of the amount thereof until the question of liability has been decided by this court. Neither side has questioned the finality or appealability of this order, for it is evident that they both would like for the principal issue to be determined in advance. In fact, the parties recognize that the court’s decree was not a final order, for they stipulated, at the outset of the trial, that, in event the court held for appellees, the order would be considered an appealable order to the Supreme Court. The want of a final order, however, is a matter that we ordinarily raise ourselves.

Under the statute we are limited to reviewing final judgments and decrees. Ark Stat. Ann. § 27-2101 (Repl. 1962).

“A judgment to be final must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject-matter in controversy.” Piercy v. Baldwin 205 Ark. 413, 168 S.W. 2d 1110.”

An order, such as the one before us, which establishes the plaintiff’s right-to recover, but leaves for future determination the exact amount of his recovery, is not final. Fitzgerald v. Phillips, 41 Ark. 85; Sennett v. Walker, 92 Ark. 607, 123 S.W. 769; Miners’ Bank of Joplin v. Churchill, 141 Ark. 211, 216 S.W. 695.

This appeal is therefore subject to dismissal. We realize, however, that we may have misled counsel for the Highway Commission by having inadvertently allowed such a piecemeal review in several similar cases (the point not having been raised), such as Ark. State Highway Commission v. McNeill, supra. Hence, we have considered this appeal upon its merits, but we take this opportunity to state that hereafter we shall revert to the better practice of reviewing only judgments and decrees that are final.

As to the cross-appeal, we find no merit, since we are of the opinion that appellees are adequately protected under the bond filed for any damage for which compensation is due.

In accordance with the views herein expressed, the decree is affirmed in part, and reversed in part, and the cause remanded for further proceedings, not inconsistent with this opinion.

Mr. Justice McFaddin concurs in part and dissents in part.

Bn. F. McFaddin, Associate Justice

(concurring and dissenting). I agree thoroughly with that portion of the Majority Opinion which holds that the entire case should he fully developed on damages before we are asked to review any part of it. When the equity trial court finds that the plaintiff has not made a case on liability, then the complaint may be dismissed without offering the evidence as to damages. This is because of our statute on demurrer to the evidence (Ark. Stat. Ann. § 27-1729 [Repl. 1962]). But when, as here, the Trial Court has found that there is liability, the parties have no right to delay completion of the trial in order to get the Supreme Court to pass on that question before completing the evidence in the Trial Court as to damages. Piecemeal trial is to be avoided as much as possible;-so I agree with that portion of the Majority Opinion regarding completion of the trial below, since the Highway Department is liable for some damages in this case.

My dissent goes to that part of the Majority Opinion which limits the elements of recoverable damage. My views on this angle of the case are contained in my dissent in Ark. State Highway Comm. v. McNeill, 238 Ark. 244, and there is no need for me to restate these views in this dissent.' I again dissent in order to preserve such views as I stated in the McNeill case.

      This section further states that this right is subordinate, however, to the public convenience, of which the public authorities having control of the streets are the judges, and is subject to such reasonable use of the street, not inconsistent with its maintenance as a public highway, as may be necessary for the public good and convenience and does not seriously impair it. The public authority may therefore impose reasonable regulations governing the exercise of such right.”

      The cul de sac was not constructed.

      The owner of Lot 36 has not complained, though a small part (opposite this lot) of Sixtieth Terrace has been taken.


author: Ed. F. McFaddin, Associate Justice.

text:
    Searcy, Sheriff v. Cooper
    5-3548
    388 S. W. 2d 918
    Opinion Delivered April 12, 1965.

      8cm Anderson, Wootton, Land <& Matthews, for appellant.

      Pope, Pratt $ Shamburger, By Donald S. Ryan, for appellee.
   Ed. F. McFaddin, Associate Justice.

This proceeding is against a sheriff for failure to make timely return of an execution. On May 19,1964, Rebecca Cooper recovered judgment against Frances Soncini in the Pulaski Circuit Court for $11,000.00; and on May 29, 1964, an execution was issued on the judgment, directed to Duffie Searcy, Sheriff of Garland County. The execution was received by Sheriff Searcy on June 12, 1964, and no return was made thereon within sixty days, as required by law. (Ark. Stat. Ann. § 30-431 [Repl. 1962].) On September 2, 1964, Rebecca Cooper filed in the Pulaski Circuit Court a motion for summary judgment against Sheriff Searcy and the sureties on his official bond, claiming said judgment under the provisions of Ark. Stat. Ann. § 27-207 et seq. (Repl. 1962).

The filing of the said motion for judgment brought prompt responses:

(a) On September 14, 1964, Sheriff Searcy filed a pleading objecting to the venue in Pulaski County and claiming he had the right to be sued in G-arland County. The Aetna Casualty and Surety Company, as surety on his bond, joined in the motion.

(b) On September 14, 1964, Frances Soncini, the judgment debtor, filed a motion to quash the execution as issued prematurely.

These said matters were heard and, by order dated November 10,1961, the Pulaski Circuit Court denied both of the motions; and the order concluded with this language ;

“. . . that Duffie Searcy, Sheriff of Garland County, Arkansas, and The Aetna Casualty and Surety Company be and they are hereby granted leave of the Court to plead further. ’ ’

On November 17, 1961, there was a notice of appeal by Sheriff Searcy, The Aetna Casualty and Surety Company, and also by Frances Soncini, from the said order of November 10,1961.

It is instantly apparent that the attempted appeal in this case is from the order entered November 10, 1961, which is not a final and appealable order. Ark. State Board v. Larsen, 226 Ark. 536, 291 S.W. 2d 269; Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W. 2d 814; and Coffelt v. Gordon, 238 Ark. 971, 385 S.W. 2d 939. The appeal is dismissed for want of a final order.

       As to Sheriff Searcy’s plea of venue, the Trial Court relied on Smith v. Drake, 174 Ark. 715, 297 S.W. 817. See also Perry County v. Gatlin, 186 Ark. 116, 52 S.W. 2d 626; and J. B. Pearson Co. v. Pittman, 192 Ark. 1062, 95 S.W. 2d 1143. As to The Aetna Casualty and Surety Company, the Trial Court relied on Ark. Stat. Ann. § 29-207 et seq. (Repl. 1962). As to Mrs. Soncini’s motion, the Trial Court relied on Jones v. Goodbar, 60 Ark. 182, 29 S.W. 462.


author: George Rose Smith, J.

text:
    Ark. State Highway Comm. v. Wilmans
    5-3483
    388 S. W. 2d 916
    Opinion Delivered April 12, 1965.

      Mark E. Woolsey and Thomas B. Keys, for appellant.

      Wayne Boyce and Fred Pickens, Jr., for appellee.
   George Rose Smith, J.

This condemnation proceeding arises from a reconstruction project by which part of U.S. Highway 67 has been widened. The landowner, Charles H. Wilmans, formerly operated a liquor store and beer tavern upon a triangular tract of about seven-tenths of an acre, abutting the highway. The effect of the taking is to narrow the tract to such an extent that the tavern can no longer be maintained and the liquor store has an inadequate parking’ area for its customers. The jury awarded Wilmans compensation of $20,000.

According to the original plans for the project a concrete curbing or island, ten inches high, was to be built as a traffic control along nearly all of Wilmans ’ 100 feet of frontage on the highway. If the plans had been followed this curbing would have greatly impaired the facility with which Wilmans ’ customers could enter and leave his property. In fact, however, the plans were not followed; the curbing was not built. The appellant insists that the trial court erred in excluding proof that the plans had been changed and in permitting the landowner’s witnesses to take the proposed curbing into account in estimating Wilmans’ damage.

We think the appellee is right in contending that the Commission’s proof fell short of showing such a change in the plans as would bind the Commission in the future. The Commission’s complaint asserted in substance that the highway would be rebuilt in accordance with ‘ ‘ plans . . . on file at the Arkansas State Highway Department in Little Rock.” By stipulation the original plans, showing the curbing, were introduced in evidence.

In its effort to prove a change in the plans the Commission called as a witness its resident engineer on the job, Ralph Wyatt. Objections to most of Wyatt’s testimony were sustained. There was no clear-cut offer of what his proof would have been, but apparently he intended to testify that the proposed curbing was abandoned pursuant to an oral agreement that was reached in a discussion he had with the opposing attorneys in the case. He also said that he had prepared a sketch showing the agreed change. This sketch is not in the record, however, nor is it shown to have been of binding force as an official document. The Commission also called Wilmans ’ attorney as its own witness, but he testified that the sketch did not correctly reflect the agreement and, further, that the highway department had violated its agreement.

It will be remembered that the Commission’s complaint affirmatively asserted that the project would follow plans that were a matter of public record in Little Rock. Unquestionably this allegation was meant to fix the rights of both litigants with respect to the property being condemned. The binding effect of a judgment as res judicata is ordinarily determined by an examination of the pleadings and the judgment, not the testimony. Webb v. Herpin, 217 Ark. 826, 233 S.W. 2d 385. Hence if the highway department should decide in the future to put in the curbing the landowner will not be in a position to claim additional compensation for a new interference with his rights of ingress and egress. We think the pleadings and the public records in Little Rock should have been amended to effect a binding change in the plans.

This ease has been tried twice. At the first trial Joe Stafford testified without objection as an expert witness for the landowner. Stafford was ill at the time of the second trial, and the court permitted the landowner to introduce his prior testimony. We find no error. The statute authorizes the use of former testimony taken in the same case between the same parties. Ark. Stat. Ann. § 28-713 (Repl. 1962). In the course of his testimony Stafford said that he considered the buildings, the business, and everything in arriving at his estimate of Wilmans’ damage. It is argued that his reference to the business was contrary to our ruling on the first appeal that the profits from the business could not be considered. Ark Highway Comm. v. Wilmans, 236 Ark. 945, 370 S.W. 2d 802. Stafford, however, said nothing about the profits. It was proper for him to consider the business, not only because he thought the tract best suited for use as the site of a liquor store but also because the property had exceptional value in that respect, as it was shown to be the last liquor store site before the highway enters a number of counties where the sale of liquor is prohibited.

It was permissible for the court to give an instruction in the pertinent language of the statute that forbids encroachments upon the public highways. Ark. Stat. Ann. § 76-544 (Repl. 1957). Inasmuch as the taking left Wilmans with a tract so small as to be hardly adequate for the operation of his business, there was no unfairness in cautioning the jury that he could not alleviate that hardship by encroaching upon the public right of way.

The appellant’s final contention is that the judgment is excessive. Four qualified witnesses for the appellant gave estimates of Wilmans’ damage that ranged from $29,000 to $43,000. Their testimony was competent and constitutes substantial evidence supporting the verdict of $20,000.

Affirmed.

McFaddin, J., not participating.


text:
    Hoskins v. Cook
    5-3537
    388 S. W. 2d 914
    Opinion Delivered April 12, 1965.

      Fenton Stanley, for appellant.

      Bridges, Young, Matthews & Davis, G. W. Lookadoo, for appellee.
   George Rose Smith, J.

This is primarily a boundary line dispute between the appellee Eunice K. Batchelor and the other appellees and cross-appellants, Albert and Bill Cook. The appellant, D. W. Hoskins, is Mrs. Batchelor’s tenant and joined her as a plaintiff in the case. The chancellor upheld Mrs. Batchelor’s claim to the strip of land in dispute and fixed Hoskins ’ crop damage at $50, a sum Avhich he thinks to be inadequate.

We consider first the principal controversy between Mrs. Batchelor and the Cooks. It is conceded that Mrs. Batchelor holds the record title to the strip in dispute, which lies just east of a portion of the western boundary of Section 27. The Cooks’ property lies in Section 28, abutting tbe disputed strip on the west. They contend that, despite Mrs. Batchelor’s record ownership, a boundary by acquiescence has been established by reason of the fact that for many years a fence was maintained along the eastern border of the strip now in question.

Both the location of this fence and its recognition by the parties as a dividing line were questions of fact that were sharply disputed. After ■ studying the testimony we are unable to say that the chancellor’s decision is against the weight of the evidence.

Most of the parties ’ two tracts has been cleared land for many years, but that has not been true of the strip in controversy. A slough, which seems usually to contain at least some water, meanders in a northerly direction in the vicinity of the true line between Sections 27 and 28. The rest of the disputed strip, lying east of this slough, was wooded land until Mrs. Batchelor employed a crew in 1963 to clear the land by using bulldozers. The fence described by the Cooks’ witnesses was nailed to trees within this wooded area. The Cooks insist that this fence was maintained for so many years that it became the division line by acquiescence. Mrs. Batchelor, however, offered equally persuasive proof that the fence was actually along the bank of the slough and was not intended to be a division line.

If the fence had divided pasture land or cultivated fields on both sides of it, its maintenance for many years would strongly indicate the existence of a boundary by acquiescence. But when a fence has been nailed to trees in a timbered area, there is much less reason to suppose that the landowners meant to regard it as a division fence. See Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 259 S.W. 2d 495. With the testimony in irreconcilable conflict we are not convinced that the Cooks proved their contention by a preponderance of the evidence.

Hoskins, the tenant, sought damag-es upon the theory that the Cooks had obstructed a drain pipe that emptied in or near the slough, with the result that about eight acres of oats were destroyed by standing water. At the principal hearing in the ease Hoslrins testified what the market value of the crop would have been if it-had matured and had been gathered. That is not the correct measure of damages, for the expense of harvesting and marketing the crop must be deducted. St. Louis S.W. Ry. v. Morris, 76 Ark. 542, 89 S.W. 846; Barnes v. Young, 238 Ark. 484, 382 S.W. 2d 580. In the absence of such proof the chancellor’s award cannot be said to be inadequate.

There was a supplemental hearing upon the question whether the Cooks had, as directed by the court, removed the obstructions they had put in the pipe draining the Batchelor land. We are unable to say either that the chancellor abused his discretion in refusing to allow the case then to be reopened for additional proof of damages, Troxler v. Spencer, 223 Ark. 919, 270 S.W. 2d 936, or in finding, upon conflicting proof, that the pipe had been effectively restored to its full usefulness. •

Affirmed.


author: PEE CUEIAM

text:
    Short v. Stephenson
    5-3189
    388 S. W. 2d 912
    Opinion Delivered April 12, 1965.
    [Rehearing denied April 12,1965.]

      Carneal Warfield, for appellant.

      W. K. Grubbs and Ohmer G. Burnside, for appellee.
   PEE CUEIAM

Subsequent to the opinion rendered by this court in the above styled case, Mrs. Elizabeth Peterson, the present administratirx of the estate of Dr. A. Gr. Anderson, filed, on February 24,1965, a motion to dismiss the appeal, alleging that the original executor of the estate, R. T. Stephenson, had died on June 8,1963; that the cause of action had abated and there had been no revival as provided by Ark. Stat. Ann. § § 27-1003 — 16, (Repl. 1962).

Dr. Anderson died on the 15th day of June, 1960. R. T. Stephenson was appointed executor of the estate. Mr. Stephenson filed for probate a purported will of Dr. Anderson in which Mr. Stephenson was named the principal beneficiary. Mrs. Helen Short, a niece and only heir at law of Dr. Anderson, filed a pleading in which she contested the validity of the will. Mr. Stephenson, as executor, filed a response denying that the will was invalid. The Probate Court rendered a judgment on March 8, 1963, holding in favor of the validity of the will. On June 8, 1963, Mr. Stephenson, the executor, died. On June 27,1963, his daughter, Elizabeth Peterson, applied for and was granted letters of administration in the Anderson estate. Mrs. Peterson’s application for appointment as administratrix, her bond as such, and her letters of administration Avere filed in the case at bar.

On October 16,1963, the record on appeal was lodged in this court. The record is very large. Appellant’s brief was not filed until May, 1964; appellee’s brief was not filed until October 22, 1964; the reply brief was filed on December 15,1964, and the case was submitted on January 11, 1965. The decision was handed down on February 8, 1965.

After appellant, Mrs. Helen Short, filed her brief on appeal in this case, the brief in response thereto was filed signed W. K. Grubbs, Sr., attorney for appellee. Mr. Grubbs had represented Mr. Stephenson from the beginning of the case until Mr. Stephenson died. Evidence in the record indicates that Mr. Grubbs represented Mrs. Peterson in getting her appointed administratrix of the Anderson estate; that he also represented her in filing her letters of administration in the case at bar, and represented her Avhen he filed a brief in this court for ‘ ‘ appellee”.

Appellee’s brief on tbe merits consisted of 465 pages in two volumes. All through the brief language is used showing there was a living appellee, language such as “there are, as in most cases, certain abstracts of evidence made by appellant with which appellee does not agree”, and ‘ ‘ appellee feels that there are certain portions of appellant’s brief that are inconsistent with the record”. (Emphasis ours.) Mr. Stephenson had been dead for about a year and a half when appellee’s brief was filed in this court; therefore, of course, the reference to appellee could not have applied to him. Helen Short, the appellant, is the only heir at law of Dr. Anderson, so surely the reference was not to her. The administratrix at the time of the printing and filing of appellee’s brief was Mrs. Peterson. In referring to appellee in the brief, the reference must have been to her.

Without deciding whether a motion to revive is necessary in a case of this kind, and without deciding just when the year expired in which a motion to revive could have been filed, it is clear that under no view of the law could the year have extended beyond October 27, 1964. Mrs. Peterson sat quietly by for nearly two months after that time and allowed the case to be submitted to this court for decision, taking her chances on a victory here, and then filed a motion to dismiss only when she lost the decision.

As heretofore pointed out, there is a big record in this case. This court was sharply divided as to how the case should be decided, as shown by the 4 to 3 decision. There was no suggestion of abatement until the last day for the filing of the petition for rehearing in this case. The petition for rehearing and the motion to dismiss were filed on the same day.

There is nothing to indicate that when Mr. Grubbs filed the brief for appellee in this case, and filed the petition for rehearing, he was not representing Mrs. Peterson the same as when he filed the motion to dismiss. Undoubtedly, Mrs. Peterson has been actively participating in this case from the time she was appointed administratix.

In all the circumstances we feel that Mrs. Peterson, personally and as executor of the Anderson estate, waived the question of abatement by not raising it when tbe case was first considered by this court. Tbe court said in Gillis v. Jurzyna, 1 NE 2d 763: Tbe filing of tbe brief is held to be equivalent to a joinder in error, and by joinder in error, tbe right to move to dismiss tbe writ is waived. ’ ’

Tbe motion to dismiss is denied.


text:
    Ark. State Highway Comm. v. Staples
    5-3528
    389 S. W. 2d 432
    Opinion Delivered April 12, 1965.
    [Rehearing denied May 17,1965.]

      Marh Woolsey and Don Gillaspie, for appellant.

      Spencer & Spencer-, for appellee.
   Sam Robinson, Associate Justice.

Tbe issue bere is tbe correct location of the right-of-way of U.S. Highway 167 at a point where it joins about two acres of land belonging to appellees, D. L. Staples, Jr. and Nettie Lou Staples. The highway runs northeast and southwest at the place involved, bnt for convenience, we refer to the side on which appellees’ property, involved here, is located as the east side, and the opposite side as the west.

The appellant, Arkansas State Highway Commission, contends that the right-of-way extends 60 feet on each side of the centerline of the paved portion of the highway. Appellees maintain that the right-of-way extends only about 48 feet on the east side thereof where it joins appellees’ property. A strip of ground about 12 feet wide is in dispute. Appellees contend that the Highway Commission has no record title to any portion of the right-of-way, but only owns by prescription an easement over that portion of the right-of-way which it has used and maintained, such portion extending about 48 feet from the centerline.

Appellees filed this suit to enjoin the Highway Commission from constructing traffic control islands on the strip in dispute. The appellant made a deposit to indemnify appellees for any damages they might sustain, and proceeded to construct the traffic islands. Upon a trial in the Chancery Court there was a decree for appellees in the sum of $2,500 as damages, and the Highway Commission has appealed;

We have reached the conclusion that the strip in controversy is a part-of the highway right-of-way. The land in question is located in Union County. In 1929 the land on which the right-of-way is located belonged to Mrs. Hazel Hartje. That year the County Judge made an order condemning for highway purposes a strip of land 120 feet wide on which to build a completely new highway. The court order is ambiguous; it describes a strip of ground, at least a portion of which is about 450 feet west of the right-of-way on which the road was constructed in 1930. But anyone who had taken the trouble to examine the court order in 1929 or 1930 would have had no difficulty in locating the new right-of-way. The order provides: ‘‘Beginning at Survey Station 0/00 located in the S.E. % of N.W. % of Section 16, T. 16 S., R. 14 W., and being Station 539/86.28 on the El Dorado - Calion Road, ...”

The beginning of the new road was at Station 0/00, located in the center of the existing gravel road known as the Calion - Hampton Road. After entry of the court order, the Highway Department proceeded to build the new road. The new right-of-way was cut through the woods; the timber had to be cut and the stumps grubbed. The contract for the new road called for clearing and grubbing. The contractor’s estimate No. 4 showed the clearing and grubbing was 90% complete; estimate No. 8 showed the clearing and grubbing was 100% complete. Of course, anyone could look at the land and see where the right-of-way was located. Mr. C. M. Matthews, who was working for the Highway Department in 1930 when the new road was under construction, testified:

“Q: After the highway was cleared, was it possible to look down and see where the highway was going to be on the ground?
A: Yes.
Q: And that was completed prior to July 30, or July 20, 1930, is that correct?
A: That’s correct.”

Mrs. Hazel Harje, owner of the land on which the right-of-way was cleared, which is the land now in controversy, filed a claim for $75.00. On August 1, 1930, the claim was allowed; on August 7, 1930, it was paid. Mrs. Hartje accepted it. The doctrine of res judicata applies. If property of Mrs. Hartje was taken in clearing the right-of-way that was not included in the order of the taking she should have included a claim for the taking of such property at the time she was paid the $75.00. In Olmstead v. Rosedale Building & Supply, et al, 229 Ark. 61, 313 SW 2d 235, we quoted from Robertson v. Evans, 180 Ark. 420, 21 SW 2d 610, as follows: "The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit.”

Appellees are privies with Mrs. Hartje. Missouri Pacific RR Co., Thompson, Trustee v. McGuire, 205 Ark. 658, 169 SW 2d 872. In the last cited case the court quoted with approval from 30 Am. Jur. 451. The text is as follows: ‘ ‘ In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title. Under this rule, privity denotes mutual or successive relationship to the same right or property, so that a privy is one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase, or assignment.”

An electric power company constructed a line of poles on the right-of-way about 12 feet from the east edge thereof. Of course, the poles had-to be several,feet from the edge of the right-of-way so that the crossarms did not extend over private property. Thereafter, the Highway Department maintained only that part of the right-of-way to about the line of poles.

In 1954, D. L. Staples, Jr. and his wife, Nettie Lou Staples, bought land adjoining the right of way, previously owned by Mrs. Hazel Hartje. The deed described the right-of-way as being the boundary of the property the Staples purchased. The purchasers had a survey made to determine the boundary line of the purchased property. The engineer considered as the boundary line that part of the highway right-of-way which had been, maintained. As heretofore pointed out, the part maintained only went to the line of power poles, but the right-of-way actually extended about 12 feet east of the line of poles. Hence, the Staples reached the wrong conclusion as to the proper location of the highway right-of-way, which is described as the west boundary of the Staples ’ property. It follows from what we have said that the 12 foot strip in question is a part of the highway right-of-way, and the Highway Department had the right to build thereon the traffic islands.

The highway plans and pictures of the property, at the point involved, are in evidence showing the location of the traffic islands. It does not appear that appellees have suffered any compensable damages by reason of the location of the traffic islands when it is considered that they are located entirely within the highway right-of-way. The property involved here is located at an intersection. A great deal of traffic passes that point each day. Under its police power, the State has the right to channel traffic for the saftey of the public. In Arkansas State Highway Comm. v. Bingham, 231 Ark. 934, 333 SW 2d 728, this court said: ‘ ‘ Private rights relative to highways may be regulated in many ways under the police power, and that without compensation ... As the problem of regulating-motor vehicle traffic on the highways has become more and more complex, new standards of design for highway construction have been adopted by the highway authorities to reduce the hazards of travel and expedite the flow of traffic . . . Such rules and regulations have been recognized by all of the authorities as a valid exercise of the police power.”

As heretofore stated, the diagrams of the intersection and the pictures introduced in evidence show that there has not been any excessive impairment of ingress and egress to the Staples ’ property.

By way of cross-complaint, the Highway Commission alleged that the Staples have encroached on the right-of-way by maintaining- thereon a concrete island, gasoline pumps, steel posts, a sign, and certain other service station fixtures; that such encroachment is in violation of Ark. Stats. Ann. § 76-544, and should be removed from the right-of-way. Since it is being held that the 12 foot strip is a part of the highway right-of-way, the Highway Commission is entitled to have the encroachments removed.

Reversed with directions to enter a decree not inconsistent herewith.


text:
    Garvan v. Kimsey
    5-3510
    389 S. W. 2d 870
    Opinion Delivered April 12, 1965.
    [As amended on denial of rehearing May 31,1965.]

      Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Glover & Glover, for appellee.
   Jim Johnson, Associate Justice.

The question here involved is the validity of a tax sale of non-producing minerals separate from the land.

The facts are generally not in dispute. Appellee Joe W. Ki'msey and twenty-two other property owners in the Magnet Cove area of Hot Spring County entered into one-year lease agreements with W. A. Keith in April, 1954, for exploration, research and mining minerals on about 900 acres of land. After recording of the leases, the Hot Spring County Tax Assessor assessed the mineral interests for the year 1954 separate from the realty, ostensibly undertaking to act under the provisions of Ark. Stat. Ann. § 84-203 (Repl. 1960). In August, 1955, Keith executed a release of the lease agreements which was also recorded. In November, 1955, the taxes on the mineral interests assessed in Keith’s name were declared delinquent and at public sale [the Sheriff’s Certificates of Purchase] were purchased by appellant, Mrs. Y. C. Garvan: On January 8, 1958, the County Clerk issued a Clerk’s Deed of Tax Sale to appellant. On September 21,1963, appellees filed their petition in Hot Spring Chancery Court against appellant to quiet title and remove the cloud from the non-producing minerals.

In its decree of March 3,1964, the court found that appellant secured by her purchase at tax sale only the title of the lessee Keith, which was for one year unless renewed for one year by payment of $10.00 per acre, which was not paid; further, that since the leases had expired by their own terms, the court felt it unnecessary to make a determination whether the original leases constituted a severance of the mineral interest from the fee; and decreed that the tax deeds were a cloud on appellees’ titles and declared them void. From the decree comes this appeal.

For reversal appellant contends that at the tax sale appellant acquired not only the lessees ’ mineral interests, but also the interest of the lessors, and has thus become the sole owner of all the mineral interests.

The statute on separate tax assessment of mineral rights, § 84-203, reads as follows:

“When the mineral rights (and) or timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, and the fee simple in the land by one or more other persons, it shall be the duty of the assessor when advised of the fact, either by personal notice, or by recording of the deeds in the office of the recorder of the deeds in the office of the recorder of the county, to assess the mineral rights (and) or timber rights in said lands separate from the general property therein. And in such a case a sale of the mineral (and) or timber rights for nonpayment of taxes shall not affect the title to the land itself, nor shall a sale of the land for nonpayment of taxes affect the title to the mineral rights- (and) or timber rights. When any mineral rights (and) or timber rights assessed as above-set ont, become forfeited on account of nonpayment of taxes, same shall in all things he certified to and redeemed in the same manner as is now provided for the certification and redemption of real estate upon which taxes duly assessed have not been paid.” '

The telling words in the statute ahoye are: “by conveyance or otherwise. ’ ’ Our cases have consistently held that conveyance by deed constituted an effectual constructive severance of the mineral rights from the fee and thus subjected to assessment and forfeiture under § 84-203. However, this court has also held that an oil and gas lease does not of itself constitute constructive severance of the two estates, hut conveys only an interest and easement in the land itself and no title passes until the oil and gas are reduced to possession. (Pasteur v. Niswanger, 226 Ark. 486, 290 S.W. 2d 852; Clark v. Dennis, 172 Ark. 1096, 291 S.W. 807; 16 Ark. L. Rev. 301.) In Quality Coal Company v. Guthrie, 203 Ark. 433, 157 S.W. 2d 756, this court said: “While in Arkansas the two interests {estate in the surface and estate in the oil and minerals] may he severed, we do not understand that the mere fact of leasing the lands for exploration purposes ipso facto creates such severance.” Nor are we convinced from our search of relevant Arkansas law that a short-term non-producing mineral lease, as is here involved, is such a severance as to fall within the terms of § 84-203, supra.

Appellant insists that State v. Arkansas Fuel Oil Company, 179 Ark. 848, 18 S. W. 2d 906, holds to the contrary. A careful re-examination of that casé including the original transcript discloses that the question there presented had to do with producing oil wells. Even though the broad language of the dissenting opinion rendered in that case seems to indicate otherwise, we are unwilling to say here that the court intended to extend the rule announced by the majority to cover short-term non-producing mineral leases.

We therefore conclude that the minerals here involved were never severed (constructively or In any other way)from the land.

Affirmed.