text:
    Charles BULLOCK et al v. Clyde RUSSELL, Jr.
    78-56
    571 S.W. 2d 605
    Opinion delivered October 16, 1978
    (In Banc)

      John F. Gibson, Jr., for appellants.

      Arnold, Hamilton & Streetman, for appellee.
   Darrell Hickman, Justice.

Charles Bullock and his son, the appellants, are in the rice water management business. In 1975 they entered into a contract with Clyde Russell, Jr. to survey 1,050 acres of his land at $3.00 an acre for the purpose of building rice levees; they also agreed to manage Russell’s rice crop once it was planted and up.

The parties had a dispute about the 1975 crop and Bullock and his son filed suit in the Ashley County Chancery Court to foreclose a surveyor’s lien on Russell’s land in the amount of $3,150.00, and also asked for judgment of $6,-750.00 as the amount due under the contract to produce rice alleging that Russell cut 67,500 bushels of rice in 1975.

Russell denied the claim in general and counterclaimed for damages alleging that the survey was deficient causing damages of $1,000.00 and the rice water management program was carelessly and negligently conducted damaging Russell in the sum of $8,000.00.

The chancellor held that the appellants had made a case on the surveying aspect of their lawsuit and granted judgment to them for $3,150.00. The chancellor denied the appellants’ prayer for any money under the rice water management contract because of a failure of proof. The chancellor found that Russell had suffered $2,000.00 in damages for unnecessarily purchasing chemicals and fertilizer, on the advice of the appellants. Therefore, a net judgment of $1,150.00 was entered for the appellants.

Both parties appeal the decision of the chancellor. The appellants allege two errors: the chancellor erred in ruling inadmissible Charles Bullock’s testimony estimating the production of rice on Russell’s farm; and, the court erred in failing to require Russell in open court, or otherwise, to report the number of bushels harvested and sold. The appellee argues on his cross-appeal that the chancellor was wrong to not find Bullock was negligent in performing his surveying and rice management duties; and, by finding that Russell failed to prove the number of acres involved. Further, the appellee argues that the judgment for only $2,000.00 damages was erroneous in view of the proof.

We find the chancellor erroneously excluded the proffered testimony estimating the amount of rice Russell produced in 1975. Consequently, we reverse and remand the case on all issues because the chancellor’s decision, in all other respects, was probably affected by his ruling on the admissibility of this evidence.

The appellant’s attorney was obviously surprised that the appellee, Russell, would not provide in-court testimony about the amount of rice he produced for the year in question. To prevent an obvious dismissal of his suit for lack of proof (a request for continuance was denied), the appellant’s lawyer asked the appellant on the witness stand to estimate the amount of rice that would be produced. The appellant, experienced in the management of rice farms and the management of water used on rice farms, testified that he knew the fields in question, had walked them and could estimate the production. This proffered testimony was excluded. Consequently, the court found that the appellant had failed to make a case on his claim for damages.

The court considered the “estimate” as speculation and excluded it. We have approved estimates before. In Bryant Lumber Company v. Crist, 87 Ark. 434, 112 S.W. 965 (1908) we approved a judgment based upon the estimate of timber cut from a tract of land. Regarding that testimony we said:

. . . The argument made against the testimony goes solely to its weight, and does not reach its competency. The evidence was sufficient to sustain the verdict, and the court was right in refusing to exclude the testimony of certain witnesses as requested by appellants.

The law in general regarding estimates, which may be given by witnesses who are capable of making a trustworthy estimate, may be found in 31 Am. Jur. 2d Expert and Opinion Evidence § 158.

Estimates of number and quantity, such as the number of animals in a pasture, the number of trees felled in a piece of timberland, the number of tomatoes which rotted in a field, the number of cubic yards of loose gravel placed on the shoulders of a road, the number of tons in a rockpile, or the percentage of trips a certain elevator made for taking passengers, may be given by witnesses who have sufficient knowledge of the subject matter of inquiry to give opinions that are dependable and trustworthy.

Furthermore, the Uniform Rules of Evidence, which we have adopted, provide that we should construe these rules:

... to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined. Ark. Stat. Ann. § 28-1001, Rule 102 (Supp. 1977).

We are not unsympathetic with the court’s desire to move this lawsuit to its conclusion at a time and on a date when the matter had been set for trial for some time. Appellant’s counsel had no right to presume that the appellee would help him try his lawsuit. However that may be, we do find that the proffered evidence was admissible, improperly excluded and that this matter can only be fairly resolved by a retrial.

Reversed and remanded.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. It seems to me that the majority has applied a general policy statement for construction of the rules of evidence without regard to any rule. Certainly, this was not the intention of the General Assembly in adopting the rules. It is not a “free-wheeling” device which requires this court to make rules of evidence as the particular question arises. The question here is covered by Rule 701, Ark. Stat. Ann. § 28-1001 (Supp. 1977). Perhaps Bullock’s testimony was admissible as that of a non-expert under Rule 701 (1), or perhaps under Rule 702. Appellant relies on Rule 104, which, insofar as this case is concerned, has no application, except as it required that the trial court determine the qualification of the witness to express an opinion. Rule 301, also relied upon by appellant, has no application whatever. But appellant does rely upon Rules 701 and 702, neither of which is mentioned in the majority opinion. It seems that the majority, if it is to reverse the chancellor, should show how he erred and apply the appropriate rule.

Whatever the case may be, the proffer of proof does not reach the issue. Bullock did not address himself to the quantity of rice harvested. That was the question in issue. Someone has said, “There’s many a slip between cup and lip.” Anyone who has ever observed farming, even remotely, is well aware that this saying has particular application and that there is a vast difference between the crop produced and that harvested.

I would affirm the decree.

I am authorized to state that Chief Justice Harris joins in this opinion.


source: Caselaw Access Project

author: Darrell Hickman, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    John C. HARRIS v. STATE of Arkansas
    CR 78-76
    572 S.W. 2d 389
    Opinion delivered October 16, 1978
    (In Banc)
    [Rehearing denied November 20, 1978.]

      William C. McArthur, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

John C. Harris was convicted in the Pulaski County Circuit Court of theft by receiving and fined $300.00.

On appeal he alleges three errors, only one of which has merit: we agree that the defendant’s motion to suppress certain evidence obtained by the use of a defective search warrant should have been granted.

The trial court noted that the search warrant was defective or insufficient in several respects: the judicial officer failed to make a finding that would have authorized a search and seizure day or night [Rules of Crim. Proc., Rule 13.2(c) (1976)]; a receipt was not delivered to Harris describing and listing the things seized from his residence [Rules of Crim. Proc., Rule 13.3(d) (1976)]; and, the return was not executed as required by Rules of Crim. Proc., Rule 13.4 (1976).

The trial judge commented that there appeared to be . . pretty much of a total disregard for the rules. ...” but, finding no prejudice, overruled the motion to suppress.

We find on review that the cumulative errors, omissions, and deficiencies in this search warrant and affidavit require us to conclude that the warrant must fail as legally insufficient.

There were several flagrant deficiencies in the warrant and affidavit. First, the warrant, issued by the Sherwood Municipal Court, did not specify the place to be searched with particularity required by the law. Rules of Crim. Proc., Rule 13.1 (b) (1976). It only stated a residence located at 10002 Republic Lane was to be searched, with no mention of the city or other place where this residence was located. As it turns out, the address is identical to one occupied by Harris in southwest Little Rock. It conceivably could have been elsewhere in Pulaski County. Such an error alone might not require reversal because we are quite tolerant of discrepancies regarding the description of property. Gatlin v. State, 262 Ark. 485, 559 S.W. 2d 12 (1977).

Second, the judicial officer issuing the search warrant made no finding that the warrant could be served day or night. (Otherwise, a warrant must be served between the hours of six a.m. and eight p.m.) Yet there was evidence that the officer arrived at Harris’ residence before six a.m. The first State’s witness said the officer arrived about five a.m. Later witnesses for the State swore it was after six a.m. Good cause must exist and be found by the issuing judicial officer to exist to authorize entry into a citizen’s privacy in the night time. This is a safeguard justified by centuries of abuse.

Third, Harris was not given a receipt for the items seized as required by the Rules of Crim. Proc., Rule 13.3(d) (1976). In this trial, the authenticity of the stolen items became critical. Harris was convicted of possession of a stolen television set. The officers testified that a television set was taken from Harris’ home pursuant to the search warrant, tagged and stored in the sheriff’s office, and later delivered to its owner. Since Harris was not given a receipt for a television set nor for other innumerable items taken from his home as required by the Rules, the credibility of the State’s case became an issue. If the officers had followed the Rules, it should not have been an issue.

It seems that the affidavit used here to obtain the search warrant of Harris’ residence was also used as a basis for several other warrants. The officers conducted several searches that same night and confiscated a considerable amount of goods from other individuals, and at the same time collected all these items and delivered them to the sheriff’s office. With these numerous items, taken from various places, it became critical to the case for the State for it to be able to say with confidence that Harris, in fact, had possessed the alleged stolen goods. (In fact, Harris had to obtain two court orders from the trial judge ordering the sheriff’s officers to return to him numerous items seized at the same time from his home. A receipt would have alleviated any problem in this regard.)

Fourth, there was an invalid return of the search warrant, a discrepancy alone which is ordinarily not critical. Shackleford v. State, 261 Ark. 721, 551 S.W. 2d 205 (1977). It is just one more deficiency to be considered when examining the warrant’s credibility and legality as a whole.

And, finally, the affidavit was admittedly erroneous in several regards. The affidavit stated that four separate confidential informants, who had proved to be reliable in the past, had informed the sheriff’s office that Harris had illegal goods. In fact, only two of these informants were able to say under oath that they had any dealings at all with Harris. The State conceded this error. As it turns out, these four informants were all working together burglarizing places and some of their efforts, praised in the affidavit, were minimal. One of the informants, who was alleged to have provided information leading to the arrest of a malefactor, was actually referring to his own arrest! One of the State’s witnesses eventually conceded that the affidavit used to obtain the search warrant was incorrect because it stated that four informants had supplied information regarding illegal activity of Harris whereas, in fact, essentially only one informant had provided information.

In summary, there were too many omissions, errors and deficiencies in this warrant and related to this search to give us any confidence in its correctness or regularity.

Our rules governing searches do not exist merely to provide technicalities for the sake of form — they exist so that people can rest assured that when an officer produces a search warrant it is with good cause, properly executed, approved by a judicial officer and not an improper attempt to invade the protective sanctity of one’s person or home.

When we adopted the Rules of Criminal Procedure it was our hope and desire that we would provide for those interested and those concerned, a concise, correct set of rules governing searches, seizures, and, in general set forth the procedural aspects of criminal law. The Rules should be common knowledge to law enforcement officers and judicial officers who have the duty and responsibility to authorize searches. The forms and procedure are quite elementary, the adherence to which will save everyone concerned a good deal of time, money, and, sometimes, anguish.

It might be that alone the discrepancies in this case would not amount to prejudicial error. However, when considered together, we much conclude that the almost total disregard of the Rules cannot be ignored. What it all comes down to is where do we draw the line? We draw the line here. The State has not demonstrated that a reasonably good faith effort was made to comply with the Rules. The evidence is, in fact, to the contrary.

We find in this case that such an accumulation of errors requires us to reverse the judgment of the trial court and remand the case for a new trial with the direction that the goods obtained through the use of the search warrant in question may not be used against Harris on similar charges.

Reversed and remanded.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. The rule governing motions to suppress evidence is Criminal Procedure Rule 16.2. Subsection (e) is applicable here. It provides:

Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state. In determining whether a violation is substantial the court shall consider all the circumstances, including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, the things seized would have been discovered; and
(vii) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceedings in which the things seized are sought to be offered in evidence against him.

The trial court found no prejudice. No regard whatever is given to that finding by the majority.

I cannot see how we can say the court was wrong. The address could not have been misleading. The Chief Deputy Tax Assessor of Pulaski County testified that there is only one Republic Lane in the county. The first of the violations said to be cumulative is a violation only when viewed hypertechnically. It certainly was not prejudicial.

The statement of one witness that the officers arrived at the address at 5:00 a.m. is apparently taken by the majority to constitute an overwhelming preponderance of the evidence. Phillip Thomas, one of those arrested and charged with the thefts that were connected with the charges against Harris, said that he accompanied the officers on the search and that they went to the Harris house between 6:30 and 7:00 a.m. Deputy Sheriff Stan Chase was positive that the search was after 6:00 a.m. He placed it in the same range of time that Thomas did. Sgt. Rocky Woods also said the search was initiated between 6:30 and 7:00 a.m. Deputy Sheriff Bill Watt put the time of arrival at the house as between 6:45 and 7:00 a.m. Appellant tried to say that the search started at 5:00 a.m., but he said that he looked at the clock when the officers were finished and he was run out of the bedroom and it was 6:20 a.m. He said that they had been there carrying stuff out for 15 or 20 minutes. Only by finding the first witness to be the only credible one can it be said that the rule against searches before 6:00 a.m. was violated. That is not a matter for this court to determine. The second error, said to be one of the cumulative ones, contributed nothing to the alleged centuries of abuse of which the majority claims some special knowledge. It was not an error at all.

A receipt should have been given to Harris. But Deputy Sheriff Bill Watt testified that he made an inventory of the property taken at the Harris house and that he tagged the property.

Another so-called error relates to the return. Neither the affidavit, search warrant nor the return are abstracted. Apparently, the majority relies upon the statement in the state’s brief that the return is not strictly in line with the statutory language. How was it not strictly in line? Is strict compliance with every guideline for issuance and execution of search warrants to be required? The quoted rule indicates quite the contrary, i.e., that substantial compliance is sufficient and that evidence is not to be suppressed because a hypercritical retrospective review from the judicial bench sees things that should have been done better. I submit that there is no basis whatever for saying that the trial judge erred in his ruling.

I am authorized to state that Chief Justice Harris joins in this opinion.


author: George Howard, Jr., Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Thomas Nelson SCOTT et ux
    78-67
    571 S.W. 2d 607
    Opinion delivered October 16, 1978
    (Division I)

      Thomas B. Keys, John L. Munday, James N. Dowell, and Wayne Harris, of Warner & Smith, for appellant.

      Hardin, Jesson & Dawson and Pearce & Robinson, by: H. Clay Robinson, for appellees.
   George Howard, Jr., Justice.

This is an appeal by the Arkansas State Highway Commission from a jury verdict and a judgment thereon, awarding appellees the sum of $80,000.00, including interest at the rate of 10% per annum, for 0.38 of an acre of land condemned in an eminent domain action in connection with the widening of United States Highways 71 and 271. The land is located near Fort Smith, Sebastian County, Arkansas, and the improvements thereon consist of a grocery store and service station operation.

While appellants have asserted the following points for reversal:

1. The trial court erred in not striking the value testimony of the owner,' Mr. Thomas Nelson Scott, and,
2. The trial court erred in not striking that portion of Mr. Calvin Moye’s value testimony relating to the use of the modified income cónversion approach; and,
3. The trial court erred in not striking that portion of Mr. Calvin Moye’s value testimony relating to the use of the lease annuity approach; and,
4. There is no substantial evidence to support the verdict of the jury; and,
5. The trial court erred in entering a judgment that was contrary to the express stipualtions of the parties and in addition provided for an interest rate that is expressly contrary to Arkansas Law;

appellant’s basic contention is that there is no substantial evidence to support the award of the jury and that the trial court erred in allowing an interest rate in excess of 6%.

We have concluded that there is substantial evidence to support the jury’s verdict and, accordingly, we affirm the award. However, we are persuaded that the trial court committed reversible error in entering a judgment providing for an interest rate of 10% instead of the statutory rate of 6% applicable in condemnation proceedings.

Appellee, Thomas Nelson Scott, testified that, in his opinion, the best use of the property in question was a convenience store and service station; that since 1941, the year that he acquired the property from his father, he and his wife had operated a service station only on this property until 1947, when an addition, consisting of concrete blocks involving an area 40 feet by 50 feet, was constructed for a retail groeery store. Further, in 1953, the appellant added a variety room and a storage room. Appellee, Thomas Nelson Scott, had, according to the record before us, worked on a part time basis for his father, at the same location, for thirty-five years prior to his acquisition of the business.

It is clear from this record that the property is located near a junction where four main highways intersect or meet, namely, United States Highway 79 and State Highway 59, both located on the east side of the property, and United States Highway 271 and State Highway 253 are located on the west side. Across the street from appellee’s property is the Smith Chevrolet-Cadillac agency and there are other businesses in close proximity of the property.

Appellee testified that in his opinion the land had a fair market value of $60,000.00; and that the improvements had a value of $60,000.00, aggregating a total market value of $120,000.00.

On cross-examination, appellee testified that he had never been engaged in the sale of real estate for a living, but had sold a few lots that he owned at one time; that in determining the value of the improvements on the property, as of the time of the taking, he valued the property at $15.00 per square foot and that this included the service station that was built in 1929.

Appellee testified on cross-examination as follows:

“Q. Now, you attributed to the value of the improvements as of October 1, 1974, a $15. a square foot figure. Mr. Scott, may I ask you where you determined that this was an appropriate figure?
A. Well, it is rather common knowledge that construction costs, many buildings are built by the square foot and it runs far more than that.
Q. Now does this $15. a square foot figure represent what you are telling the ladies and gentlemen of the Jury would cost you to replace this building on October 1, 1974 in its same or similar form?
A. Yes.
Q. And although these comparable sales you have, one of $12,000.00 for half an acre, you have six and a half acres at $125,000.00 an acre which would be something less than $20,000.00 an acre; and two and a half acres for $85,000.00 which should be something over $30,-000.00 an acre. You are telling these ladies and gentlemen of the Jury that your .38 of an acre is worth $60,000.00?
A. It’s in a far more enviable location as it has four highways where the others have two. Access means a whole lot.”

Counsel for appellant made the following motion which was denied by the trial court:

“MR. HARRIS: Your Honor, at this time on behalf of the Arkansas Highway Commission, we would move to strike the testimony of Mr. Nelson Scott with reference to his opinion of the fair market value of the property taken as of October 1, 1974 upon the grounds that no fair and reasonable basis was offered as a foundation for his opinion and further, that Mr. Scott admitted that he had obtained his opinion of building costs from builders and was unable to tell us that it was as of the date of taking October 1, 1974 and at first suggested that these conversations had occurred shortly before he closed his business in 1976, and so therefore, since he computed the $60,000 figure from using the $15 per square foot building cost, that part of his testimony is clearly unsupported by his testimony; and secondly, that by his own admissions only and by his own statements of comparable sales that were offered that there are none that exceed 50 percent of his $60,000 value of this land, and his opinion in that regard is clearly unsupported by the facts on which he himself on his own testimony stated he used as a basis for his opinion of fair market value of the land.”

In Arkansas State Highway Commission v. Robert Kennedy, et ux, 248 Ark. 301, 451 S.W. 2d 745, which we hold is dis-positive of the issue here, we made the following comment:

“. . . [W]e have reiterated the well established principle of law that a land owner’s testimony is competent and admissible as to the value of his lands, regardless of his lack of knowledge of property values, if a satisfactory explanation is given for his conclusion.”

Here, Mr. Scott’s testimony about the fair market value of his property was based upon his intimate knowledge of his property which he had possessed for 34 years in his own right and had been in his family for a period of time, before his acquisition of the property, exceeding 35 years. We are persuaded that any question about Mr. Scott’s testimony would not relate to its admissibility, but would go to the weight to be accorded it. This, indeed, was a matter for the jury to ponder during its deliberation.

In arguing that the trial court committed error in denying appellant’s motion to strike the testimony of appellee’s expert witness, Calvin Moye, appellant readily concedes that “the law is not wedded to any particular formula or method for determining fair farket value as the measure of just compensation. ... It may be based upon comparable sales, reproduction costs (less depreciation), capitalization of net income or interaction of these determinants.”

Appellee’s expert witness testified that in arriving at his figure of $80,000.00 as the fair market value of appellee’s property, at the time of the taking, the witness resorted to comparable sales, reproduction costs, less depreciation, and variations of capitalization of income, namely, modified income conversion method, and lease annuity approach.

Appellant voiced the following objection which was overruled by the trial court:

“MR. HARRIS: Your Honor, I’m going to have to, for the record at least, object to this because it appears to me that this appraisal is not based upon the condition of the improvement and the type of improvement as located on the Scott property as of October 1, 1974, and although I don’t profess to be an eminent domain expert, it seems like to me that we are giving an opinion based upon some hypothetical type of property not involved in this case.”

However, appellant now asserts the following objections to this testimony: (1) There was no income being produced, rental or otherwise, at the time of the condemnation; that the business conducted was presumably producing profits, but such evidence is not admissible as a basis for determining market value. Therefore, the modified income conversion method involves the conversion of property not of the income flow; and (2) that on the basis of converting the property to an unspecified hypothetical building, the costs of which are more speculative than the method of determining cost (less depreciation) of an existing building, the estimates of the witness were not proper and fall within the exclusion covered in Arkansas State Highway Commission v. Mahan, 249 Ark. 1022, 463 S.W. 2d 98, as the witness “had not qualified as an engineer, architect or builder.”

We are persuaded that appellant is precluded from asserting these specific objections since they are raised essentially for the first time on appeal. It is well settled that an objection which does not specify the grounds of an objection to the testimony offered in order to afford the trial court an opportunity to rule on the objection is fatal. Arkansas State Highway Commission v. Woody, 248 Ark. 657, 453 S.W. 2d 45. Appellant’s objection was not grounded on the use of an income approach where no income was being produced and that cost of converting the property and operational expenses is merely estimated rather than determined. Moreover, it is well established that a motion to strike all of a witness’s testimony is correctly denied if part of the testimony is admissible. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S.W. 2d 141.

Finally, appellant asserts that the trial court erred in awarding interest on the judgment entered from the date of judgment, November 23, 1977, until paid at the rate of 10% per annum.

We are persuaded that Ark. Stat. Ann. § 76-536 (Repl. 1957), which deals specifically with the payment of interest on awards made for private property condemned for highway purposes, in relevant part, is controlling:

“Immediately upon the making of the deposit . . . title to the said lands . . . shall vest in the persons entitled thereto; and said compensation shall be ascertained and awarded in said proceeding and established by judgment therein and said judgment shall include as a part of the just compensation awarded, interest at the rate of six per cent [6%] per annum on the amount finally awarded as the value of the property ...”

Appellee argues that in 1975, the Arkansas General Assembly, recognizing the rise in commercial interest rates and the problem of inflation, amended Ark. Stat. Ann. § 29-124 (Repl. 1962) to increase the interest allowed on judgments rendered in our Courts from 6% to 10% and, accordingly, the trial court acted within its authority in allowing appellees 10% interest on their award. While appellees’ argument may be characterized as noble, it is neither impressive nor compelling for from the plain meaning of the statutory provision relied upon by appellees, we are unable to perceive that the Legislature intended to supersede the 6% interest rate contained in Ark. Stat. Ann. § 76-536 (Repl. 1957). Consequently, we reverse the trial court on this issue.

Relative to the question as to when the interest commences and ends on the original deposit of $27,300.00, the appellees concede, in their brief, that they erred in their calculation of the time of the taking and that the trial court’s judgment is contrary to the expressed stipulation of the parties. In other words, both appellant and appellees stipulated that the interest on the original deposit would commence October 1, 1974, and run to September 23, 1975. Consequently, we reverse the trial court in this regard.

Affirmed in part and reversed in part.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      The jury returned a verdict in the amount of $82,000.00, however, the land owner voluntarily entered a remittitur in the sum of $2,000.00.

      The witness offered testimony as to the cost of converting the improvements on the property to a modern, functional and attractive building adapted for a convenience store, which was regarded as the highest and best use for the property; the witness estimated the gross income from the operation based upon the information obtained from similar convenience stores in the area; an operating schedule for the income flow from the converted property resulted in an anticipated net estimate by deducting anticipated expenses. The witness then capitalized the net income over a fifteen year period using an overall rate which included the recapture of the depreciation of the building and the rate of return necessary to cover the economic rent. Thus, the witness was able to determine a value for the property from which he deducted the cost of conversion.
      Under the lease annuity approach, the witness determined economic rent recoverable for the property by comparison with the actual lease arrangements for similar property.


author: George Rose Smith, Justice.

text:
    Carmel B. JONES et al v. Cy CARNEY, Jr.
    78-105
    572 S.W. 2d 585
    Opinion delivered October 23, 1978
    (Division I)
    [Rehearing denied November 27, 1978.]

      Murphy & Carlisle, for Carmel B. Jones and John W. Bailey, for Alcoholic Beverage Control Board, appellants.

      Crouch, Blair, Cypert & Waters, for appellee.
   George Rose Smith, Justice.

The principal appellant, Mrs. Jones, applied for a permit to operate a liquor store in Fayetteville. The Alcoholic Beverage Control Board, after a hearing, reversed the ruling of its director and granted the permit. The circuit court in turn reversed the Board, for want of substantial evidence. This appeal is from the circuit court’s judgment, a supersedeas bond having been given to keep the store open during the pendency of the appeal.

The appellant’s abstract of the record can, in truth, hardly be called an abstract at all. It copies the Board’s decision, but it contains no other information of value to us in passing upon the appeal. It is argued that the Board’s decision is supported by substantial evidence, but not a syllable of the evidence is abstracted. We are not in a position to say that the circuit court’s judgment is erroneous.

Affirmed.

We agree.

Harris, C.J., and Holt and Howard, JJ.


text:
    Albert NAPIER v. Dr. Charles NORTHRUM et al
    78-109
    572 S.W. 2d 153
    Opinion delivered October 23, 1978
    (Division I)

      Frank W. Booth, for appellant.

      Shaw & Ledbetter; Bethell, Callaway & Robertson, by: Donald P. Callaway; and Warner & Smith, for appellees.
   George Rose Smith, Justice.

This is an action for medical malpractice, brought by Albert Napier against Dr. Charles Northrum, an anesthesiologist, Dr. John Wideman, an orthopedic surgeon, and Sparks Regional Medical Center. At the close of the plaintiff’s proof the trial judge directed a verdict in favor of all three defendants. Napier argues that submissible issues of negligence were presented and that the court should have admitted into evidence the Sparks hospital’s Nursing Procedure Manual.

In 1969 Napier’s right hand was severely lacerated by the fan of his car. He was eventually sent to Dr. Wideman, who advised an operation. On the night before the operation Dr. Wideman recommended a form of anesthesia known as a brachial block, to which Napier consented. During the operation, on the morning of January 6, 1970, the anesthetist’s needle punctured the patient’s right lung, causing a partial deflation known as pneumothorax. That condition was treated at about 8:30 that evening by Dr. Leon P. Woods, a thoracic surgeon. Both Dr. Woods and Dr. Wideman were called as witnesses by the plaintiff.

The complaint was originally filed in November, 1971, but after a voluntary nonsuit in 1976 it was refiled in August, 1977. The complaint, as abstracted, alleged that Dr. Northrum negligently punctured Napier’s lung in administering the brachial block, that Dr. Northrum and Dr. Wideman failed to warn Napier of recognized complications in this type of anesthesia, and that all three defendants failed to provide proper post-operative care, with the result that Napier suffered unnecessary pain and mental anguish for about 9 1/2 hours while his lung was collapsing.

We consider first the really basic question, whether there was a submissible issue of negligence on the part of the anesthetist. Pertinent to this question is our rule with respect to the necessity for expert testimony, which we summarized in Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970):

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S.W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

Dr. Woods and Dr. Wideman described the brachial block procedure. In it the anesthetist deadens the entire arm by injecting the anesthetic into' the brachial complex of nerves, lying next to the first rib. The needle is inserted at the base of the neck, near the collarbone. The lung often extends above the first rib, behind it. It is impossible to tell, even by an x-ray, just how deep the brachial complex and the lung lie below the surfact, because the thickness of the overlying tissue varies. Dr. Woods testified that there is no way to prevent an occasional puncture of the lung if enough brachial blocks are performed. Dr. Wideman testified that as a surgeon he had seen probably more than 500 brachial blocks and that in more than one but less than five of them a pneumothorax developed as a result of the anesthesia.

It cannot be said that the brachial block procedure is a matter within the common knowledge of a jury of laymen. In that situation, “the jury may not speculate as to the propriety of the standards testified to by experts, nor draw on their own personal knowledge in determining the question.” AMI Civil 2d, 1051, Comment (1974). The expert testimony does not prove negligence on the part of the anesthetist. To the contrary, Dr. Woods testified that in his opinion Mr. Napier received correct care throughout his stay at the hospital and that there was no wrongdoing on the part of any doctor or anyone assiciated with the hospital. We can find no testimony that would have enabled the jury to make a finding of negligence with respect to the administration of the brachial block.

A second allegation is that Dr. Wideman and Dr. Northrum not only failed to warn Napier of recognized complications in the brachial block anesthesia but also insisted on that type of anesthetic. As far as the insistence goes, Napier admits that he consented to the procedure. The jury certainly would have found that Napier was not told that there was about a one percent chance that a lung puncture and pneumothorax might occur. The trouble is, there is no testimony about the alternative forms of anesthesia. Dr. Wideman said he recommends the brachial block for this reason: “The biggest thing about the brachial block is in safety. It is relatively safe, as to any, other type of anesthetic you give him.” There was no testimony that would have permitted the jury to weigh the various types of anesthesia to determine if a warning should have been given. Thus the jury was not in a position to find that the doctors were negligent in failing to give specific information about the possibility that a lung puncture might occur. We should add that the general tenor of the medical testimony in the case is to the effect that a pneumothorax such as Napier suffered is not, when properly treated, a serious injury or one that results in any damage to the affected lung. There is no complaint about the treatment of the pneumothorax by Dr. Woods, who was not named as a defendant in the case.

Finally, there is the assertion that the defendants’ postoperative treatment of the pneumothroax was negligently delayed for 9 1/2 hours, during which Napier suffered unnecessary pain. As to Dr. Northrum, the anesthesiologist, we find no contention in the appellant’s brief that he was responsible for post-operative care. As to Dr. Wideman, he was performing other surgery when Napier was returned to his hospital room and the pneumothroax developed gradually and became apparent. Obviously the scheduling of additional surgery on the same morning was not negligence. When Dr. Wideman, an orthopedist, was informed that Napier was experiencing pain and shortness of breath, he directed that the appropriate specialist be called into the case. There is really no serious argument that Dr. Wideman was negligent with respect to the patient’s post-operative care.

There remains the charge that the Sparks hospital’s nurses were at fault in not diagnosing more promptly the possibility that Napier had suffered a pneumothroax and required the immediate attention of a thoracic specialist, such as Dr. Woods. Here the implied premise is that even though some shortness of breath and some pain were unavoidable consequences of the lung puncture and ensuing pneumothorax, the period of suffering would have been reduced had the nurses acted more efficiently.

Here, again, the issue is one upon which something in the nature of expert proof is required. That is, a jury cannot decide of its own knowledge just when the nurses should have realized what might be happening. To fill that gap the plaintiff sought to introduce the hospital’s Nursing Procedure Manual. The court ruled that there had been no showing that any of the standards had been violated and that therefore the proffered manual was irrelevant.

In the transcript the bulky single-spaced manual comprises about 31 pages. All three appellees, in their separate briefs, justifiably complain that no part of the manual has been abstracted by the appellant. Instead, the appellant summarizes and discusses in his brief certain parts of the manual that he considers to be pertinent. Such a discussion does not comply with Rule 9(d), which requires an impartial abstract of such material matters in the record as are necessary to an understanding of the questions presented. Without an impartial abstract of all pertinent parts of the manual we cannot say, absent any other proof, that the nurses were at fault.

Affirmed.

We agree.

Harris, C.J., and Holt and Howard, JJ.


author: John A. Fogleman, Justice.

text:
    Bill HILL, d/b/a BILL HILL’S AUTO v. BANK OF NORTHEAST ARKANSAS, A Banking Corporation
    78-89
    572 S.W. 2d 150
    Opinion delivered October 23, 1978
    (In Banc)

      Kelly Webb, for appellant.

      Parker & Henry, by: Mike Walden, for appellee.
   John A. Fogleman, Justice.

This case involves the question whether a lender may perfect a lien on a motor vehicle under the provisions of Ark. Stat. Ann. § 75-161 (b) (Supp. 1977). The trial court held that it could and we agree.

On July 26, 1977, Ronnie Hogan borrowed $3,167.36 from the Bank of Northeast Arkansas. The loan was evidenced by a promissory note providing for repayment in 30 monthly payments of $119.76. It was secured by a security agreement describing a 1975 Chevrolet Monte Carlo, Serial No. 1H57H5D420253. The note and security agreement were mailed to the Motor Vehicle Division of the Department of Finance and Administration and filed there on August 22, 1977. Hogan kept the certificate of title to the vehicle, which had been issued in the State of Louisiana. On September 7, 1977, Hogan sold the vehicle to appellant Bill Hill for $2,650, and surrendered this certificate of title, which bore no evidence of any lien on the vehicle.

Hogan defaulted in payment of the note and appellee, on October 11,1977, filed suit to replevy the automobile, which was then in Hill’s possession. Hill defended on the ground that the security interest of the bank had not been perfected as required by law. He asserted that his title was superior to any claim of the bank. The case was tried on a stipulation of fact. The trial judge held that the bank had perfected its lien pursuant to Ark. Stat. Ann. § 75-161 (b) and that the filing of the note and security agreement constituted constructive notice of the bank’s lien. The bank was given judgment for possession of the automobile.

Appellant contends that the court was in error in holding that the bank’s lien had been perfected and that the court also erred in holding that the filing of the note and security agreement constituted constructive notice of its lien. Appellant contends that in order to perfect its lien, the bank was required to comply with Ark. Stat. Ann. § 75-160 (b) by transmitting the certificate of title to the Department of Finance and Administration, along with the instrument creating the lien. He also contends that the court erred in holding that the filing of appellee’s note and security agreement constituted constructive notice of the bank’s lien.

As we view the statutes involved, their legislative history leaves us without any doubt about the correctness of the trial court’s holding. The Uniform Motor Vehicle Administration, Certificate of Title and Antitheft Act [Ark. Stat. Ann. § 75-101 et seq (Repl. 1957)] was adopted by the General Assembly as Act 142 of 1949. Article V of that act was included as §§ 60 and 61, and appeared as Ark. Stat. Ann. §§ 75-160, -161 (Supp. 1951). As the act was then written, it was necessary, in order to perfect a lien, that the instrument creating it, accompanied by the certificate of title last issued for the vehicle, be deposited with the Title Department of the Motor Vehicle Division. § 75-160 (b) (Repl. 1957). This filing and issuance of a new title certificate, including a statement of the liens certified to the department, constituted constructive notice of all such liens to subsequent purchasers. §§ 75-160 (e), 161 (a) (Repl. 1957). This method of giving constructive notice was exclusive. § 75-161 (b) (Supp. 1951).

This legislation created a sort of “Torrens System” of automobile title registration, by which a subsequent purchaser could rely on the certificate of title itself to disclose liens and encumbrances which were not dependent on possession. See 8 Thompson on Real Property (Perm. Ed.) 245 et seq, § 4405 et seq. This system remained relatively unchanged until the passage of Acts 138 and 805 of 1971. The changes then made clearly indicated that the General Assembly intended to provide for an alternate or optional means of perfecting a lien on a motor vehicle and of giving constructive notice thereof. These acts added what now appears as § 75-161 (b) (Supp. 1977), viz:

A lienholder may, at his option, file with the Department a certified copy of the instrument creating and evidencing such lien or encumbrance and shall remit therewith a fee of One Dollar ($1.00) for each lien to be filed, which such filing shall constitute constructive notice of such lien against the vehicle described therein to creditors of the owner, subsequent purchasers and encumbrancers, except such liens as are by law dependent upon possession. [Emphasis ours.]
The constructive notice shall be effective from the date of the execution of the instrument creating and evidencing the lien or encumbrance if the same is filed as authorized herein within ten (10) days after the date of the execution thereof. If the instrument is filed more than ten (10) days after the execution thereof, the constructive notice shall date from the time of the filing of the instrument. Provided, that the filing of a lien under the provisions of this subsection by the lienholder and the payment of the fee therefor shall in no way relieve any person of the obligation of paying the fee now required by law for filing of a lien to be evidenced on a certificate of title of a motor vehicle.

The portion of the statute [Ark. Stat. Ann. § 75-161 (a)] having to do with constructive notice under the original act was left unimpaired. It reads:

Such filing and the issuance of a new certificate of title as provided in this article [§§ 75-160, 75-161] shall constitute constructive notice of all liens and encumbrances against the vehicle described therein to creditors of the owner, to subsequent purchasers and encumbrancers except such liens as may be authorized by law dependent upon possession. In the event the documents referred to in Section 62 [§75-162] are received and filed in the central office of the department within ten [10] days after the date said documents were executed the constructive notice shall date from the time of the execution of said documents. Otherwise constructive notice shall date from the time of receipt and filing of such documents by the department as shown by its indorsement thereon.

Another very significant change made by Act 138 appears in § 75-161 (c) which had previously been § 75-161 (b). That change may be fully appreciated by reproducing the subsection with the only change in brackets, viz:

The method [s] provided in this article of giving constructive notice of a lien or encumbrance upon a registered vehicle shall be exclusive except as to liens dependent upon possession and any said lien or encumbrance or title retention instrument filed as herein provided and any documents evidencing the same are hereby exempted from the provisions of law which otherwise require or relate to the recording or filing of instruments creating or evidencing title retention or other liens or encumbrances upon vehicles of a type subject to registration hereunder.

The use of the words “at his option” in § 75-161 (b) and the pluralization of the word “method” in § 75-161 (c) in the new version clearly indicate a legislative intent to provide alternate methods for perfection of liens and for giving constructive notice. Thus, the lien holder could either have the advantages of the “Torrens System” certificate or use the method that more nearly resembles our recording system, where a real estate mortgage is the lien instrument.

Appellant would have us ignore these significant changes in the governing statute. He places reliance upon language in § 75-160 (a) that no lien or encumbrance subject to registration is valid as to subsequent purchasers or encumbrances unless the requirements of “this article have been complied with” and the language of § 75-160 (b) that the lien instrument must be “accompanied by the certificate of title last issued for such vehicle.” “ [T]his article” is § 75-160 and § 75-161. The latter section is quite different since the passage of the 1971 acts, as we have pointed out, and the requirements of “this article” may be met by either of two methods, one of which does not require that the lien instrument be accompanied by the certificate of title.

Appellant also argues that the matter of priority is governed by Ark. Stat. Ann. § 85-9-301 (Supp. 1977). The applicability of that section to motor vehicle liens coming within the purview of the Motor Vehicle Act is questionable to say the least. In any event, as we have pointed out, we take the alternate procedure to provide a method other than that previously existing for perfecting a lien, as well as for giving constructive notice. Appellant also advances the argument that, even if the later acts provide an alternate method for giving constructive notice, the original method for perfecting the lien is exclusive. If this were the case, there would really be no purpose in providing for the alternate method. Compliance with the procedures required under the original act would suffice for both perfection of the lien and the giving of constructive notice. And, in either event, appellant would have constructive notice of the bank’s lien.

The advantages of the original system to an innocent prospective purchaser are readily apparent and the arguments in favor of continuing that system exclusively are appealing and persuasive. But the decision as to the merits of the change was a matter addressed to the General Assembly only. The wisdom, advisability, expediency, propriety, and necessity of particular legislation are matters solely for consideration of the legislative department and are not for judicial determination. Southwestern Bell Telephone Co. v. Roberts, 246 Ark. 864, 440 S.W. 2d 208; Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753; McCastlain v. Oklahoma Gas & Electric Co., 243 Ark. 506, 420 S.W. 2d 893; Haynie v. City of Little Rock, 243 Ark. 86, 418 S.W. 2d 633; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478; Cook v. Arkansas Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210; Reed v. Hundley, 208 Ark. 924, 188 S.W. 2d 117. When the General Assembly has exercised its discretion in the execution of its powers, such matters are not subject to review by the courts. Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628.

The judgment is affirmed.

Byrd and Howard, JJ., dissent.


text:
    Nora GIBSON v. Merna W. GIBSON and Cecil L. GIBSON
    78-115
    572 S.W. 2d 146
    Opinion delivered October 23, 1978
    (Division II)

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Moore & Gibson, P.A., by: Michael L. Gibson, for appellees.
   John A. Fogleman, Justice.

Appellant Nora Gibson, widow of Herman Gibson, elected to take against his will, by which he devised all his real property to his sons, Mema W. Gibson and Cecil L. Gibson, the appellees herein. She was assigned dower in certain lands by the Probate Court of Craighead County. She filed suit against the sons for partition of the land in the Chancery Court of Craighead County. Appellees filed a motion to dismiss, which was granted. This appeal was taken from the order of dismissal. We find reversible error.

We held in Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338, that one in exclusive possession of land as dower was not entitled to a decree of partition against the remainderman since they were not cotenants. Appellant contends that this holding was nullified by Act 324 of 1957, which amended Ark. Stat. Ann. § 34-1801 (Supp. 1977). The statute (with the language prior to the 1957 amendment in ordinary type and the amendatory language in italics) now reads:

Petition — Persons entitled to file — Contents. — Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned curlesy, or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, shall file in the circuit or chancery court a written petition in which a description of the property, the names of those having an interest in it, and the amount of such interest shall be briefly stated in ordinary language with a prayer for the division, and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners, and thereupon all persons interested in the property who have not united in the petition shall be summoned to appear.

It appears that we have sustained appellant’s argument in Smith v. Smith, 235 Ark. 932, 362 S.W. 2d 719, which was not cited by either party in this case. This case is indistinguishable from Smith. Even though we might feel that decision was wrong in retrospect, the construction of the statute in that case established a rule of property and we are not at liberty to overturn it. Williams v. Jefferson Hospital Ass’n., Inc., 246 Ark. 1231, 442 S.W. 2d 243; Bishop v. Williams, 221 Ark. 617, 255 S.W. 2d 171; Eubanks v. McDonald, 225 Ark. 470, 283 S.W. 2d 166; Pitcock v. State, 91 Ark. 527, 121 S.W. 742, 134 Am. St. Rep. 88. The interpretation given the statute became a part of the statute itself and we should not now reinterpret it. E. C. Barton & Co. v. Neal & Jones, 263 Ark. 40, 562 S.W. 2d 294; Merchants’ Transfer & Warehouse Co. v. Gates, 180 Ark. 96, 21 S.W. 2d 406.

The decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.*

We agree.

Harris, C.J., and Byrd and Hickman, JJ.


text:
    Nora GIBSON v. Merna W. GIBSON and Cecil L. GIBSON
    78-116
    572 S.W. 2d 148
    Opinion delivered October 23, 1978
    (Division II)

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Moore & Gibson, P.A., by: Michael L. Gibson, for appellees.
   John A. Fogleman, Justice.

Appellant Nora Gibson, widow of' Herman Gibson, was assigned an 80-acre homestead by the Probate Court of Craighead County. She filed a partition suit against the appellees, the two sons of Herman Gibson, in the Chancery Court of Craighead County. The sons, as heirs and devisees of Herman Gibson, were the owners of the 80-acre tract, subject to Nora Gibson’s homestead. Appellees moved that the suit be dismissed. This appeal was taken from the order granting this motion. We find no basis for reversal.

It has been said that the right to partition is purely statutory. Fullerton v. Storthz Bros. Inv. Co., 190 Ark. 198, 77 S.W. 2d 966. This statement is not to be taken literally. It does not mean that equity courts have no jurisdiction to partition lands except that conferred by statute. See Patton v. Wagner, 19 Ark. 233; Dunbar v. Bourland, 88 Ark. 153, 114 S.W. 467; Moore v. Willey, 77 Ark. 317, 91 S.W. 184; Pasteur v. Niswanger, 226 Ark. 486, 290 S.W. 2d 852; Overton v. Porterfield, 206 Ark. 784, 177 S.W. 2d 735. Equitable jurisdiction, in the absence of statute, however, has been confined to situations in which a cotenancy exists between parties to the action. Lester v. Kirtley, 83 Ark. 554, 104 S.W. 213. See Walker v. Eller, 178 Ark. 183, 10 S.W. 2d 14; Krickerberg v. Hoff, 201 Ark. 63, 143 S.W. 2d 560; Phillips v. First National Bank of Van Buren, 179 Ark. 605, 17 S.W. 2d 298. The very definition of the word partition is that it is a division of lands held by joint tenants, coparcenors, or tenants in common. Black’s Law Dictionary (4th Ed.). There is no such tenancy here. Consequently, if there is any authority for such a partition it must be found in Ark. Stat. Ann. § 34-1801 (Supp. 1977).

The statute provides for partition upon petition of “[a]ny persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned curtesy, or in coparceny, absolutely or subject to the life estate of another or otherwise.” Appellant concedes that the right of partition of a homestead interest is not mentioned in the statute, unless it is included in the word “otherwise.” We simply cannot see how this word can be taken to be so all-inclusive. In Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338, we held that the words “or otherwise” in this section modified and referred to “the life estate of another” and not to the clause describing the manner in which the land sought to be divided must be held. Nothing in Act 324 of 1957 has changed the words modified by the phrase “or otherwise.” If this word “otherwise” had been as broad in scope as appellant contends,, it would have been adequate authority for partition between a life tenant and a remainderman upon the petition of the former. We held, however, that a life tenant entitled to the exclusive possession could not maintain a partition suit against vested remaindermen in Bowman v. Phillips, 260 Ark. 496, 542 S.W. 2d 740, decided after the act had been amended by Act 324 of 1957. There we pointed out that there might be solid reasons of public policy for denying a life tenant the right to partition by public sale. As an example, we mentioned that a life tenant might be suffering from an illness reducing his life expectancy below that shown by the statutory tables.

There is even more reason for denying partition to the holder of a derivative homestead right such as that involved here. It is not actually a life estate. It is an interest that almost defies definition. We have said, at times, that it is not an estate at all, but only the privilege of occupancy. See Neeley v. Martin, 126 Ark. 1, 189 S.W. 182. Our latest, and perhaps best, effort to define it was in the opinion in Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770, where we said:

Homestead is a valuable right, interest or estate in land which vests in the widow “during her natural life” under Art. 9, Sec. 6 of our Constitution unless and until abandoned or forfeited by the widow.

The right is purely personal to the widow. Neeley v. Martin, supra. In Henderson v. Henderson, 212 Ark. 31, 204 S.W. 2d 911, it is described as “individual and indivisible.” The rents and profits from the land are vested in the widow, but any attempt by her to convey her rights constitutes an abandonment. Warren v. Martin, 168 Ark. 682, 272 S.W. 367; Sheppard v. Zeppa Trustee, 199 Ark. 1, 133 S.W. 2d 860. She would also abandon her homestead rights if the heirs sought partition and she did not assert them. Henderson v. Henderson, supra.

An excellent summary of the Arkansas law in this respect is found in the opinion of Chief Judge (now Circuit Judge) Henley in U.S. v. 164.51 Acres of Land, Etc., 205 F. Supp. 202 (E.D., 1962). He said:

*** In Arkansas the “homestead estate” created by the Constitution is not a conventional life estate, although it is frequently called such and, indeed, for certain purposes is such. See in this connection: Jones “Arkansas Titles,” § 893 including 1959 Annotated Supplement; Meadows v. Hardcastle, 219 Ark. 406, 242 S.W. 2d 710; Maloney v. McCullough, 215 Ark. 570, 221 S.W. 2d 770; Killeam v. Carter, 65 Ark. 68, 44 S.W. 1032; Barnett v. Meacham, 62 Ark. 313, 35 S.W. 533. It differs from the conventional life estate in that it is purely personal to the widow and minor children of the decedent. While the widow is not required to live upon the homestead premises, and while a re-marriage by her does not deprive her of homestead rights, still, her interest being personal to her is not transferable, and a sale by her of the homestead interest or of the lands affected by the homestead estate conveys nothing to the grantee but amounts to an abandonment of the homestead by the widow, which gives the heirs a right to the immediate possession of the property. Meadows v. Hardcastle, supra; Stover v. Holman, 229 Ark. 658, 317 S.W. 2d 722; Rone v. Sawrey, 197 Ark. 472, 123 S.W. 2d 524; Henry v. Dollin, 195 Ark. 607, 113 S.W. 2d 97; Clark v. Friend, 174 Ark. 26, 295 S.W. 392; Brinkley v. Taylor, 111 Ark. 305, 163 S.W. 521; Barnett v. Meacham, supra.

We do not see how the widow’s homestead right can be measured or valued so that a division of land with the heirs or devisees of the deceased husband can be had, either in kind or by distribution of the proceeds of sale.

Appellant points out that we held in Henderson v. Henderson, 212 Ark. 31, 204 S.W. 2d 911, that a homestead interest can be partitioned with the widow’s consent. This certainly does not mean that the widow having a homestead right can force a partition.

The decree is affirmed.

We agree.

Harris, C.J., and Byrd and Hickman, JJ.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. WOOD, Judge of the Circuit Court of Pulaski County, and DONREY COMMUNICATIONS COMPANY, INC.
    78-113
    572 S.W. 2d 583
    Opinion delivered October 23, 1978
    (Division II)
    [Rehearing denied November 27, 1978.]

      Thomas B. Keys and Ted Goodloe, for petitioner.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for respondents.
   Conley Byrd, Justice.

The pivotal issue in this petition for writ of prohibition is whether the State Highway Commission is subject to the adjudicatory provisions of the Administrative Procedure Act, Ark. Stat. Ann. § 5-701, et seq. (Repl. 1976). The facts giving rise to the litigation in the trial court show that Donrey Communications Company, Inc. had some billboard signs in existence when the Highway Beautification Act, Ark. Stat. Ann. § 76-2501, et seq. (Repl. 1957), came into existence. Permits to maintain those signs were issued by the State Highway Commission pursuant to the Highway Beautification Act and the regulations of the State Highway Commission issued pursuant thereto. The State Highway Commission revoked the permits issued to Donrey Communications Company, Inc. after the latter’s employees had topped some pine trees growing along the highway right-of-ways adjacent to the signs. Subsequent to the revocation Donrey Communications filed a complaint in the trial court contending among other things that the revocation of the permits was void, illegal and unenforceable by reason of the State Highway Commission’s failure to comply with the requirements of the Administrative Procedure Act respecting administrative adjudications, hearings, decisions and with requirements of due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Art. 2 § 22 of the Arkansas Constitution. This petition was filed here after the trial court overruled petitioner’s demurrer raising the jurisdictional issues hereinafter discussed.

Petitioner’s first contention is that the Administrative Procedure Act does not apply to it because the Administrative Procedure Act, Ark. Stat. Ann. § 5-701, specifically provides that “nothing in this Act shall be construed to repeal delegations of authority as provided by law. . . .” The petitioner then points to existing law, Ark. Stat. Ann. § 76-201 (Repl. 1957), which authorizes the State Highway Commission to adopt rules and provides the manner in which such rules shall be adopted. The petitioner’s argument here fails to take into consideration that the Administrative Procedure Act has two purposes — i.e., (1) to require certain designated State agencies to adopt and make public procedural rules, including methods whereby the public can make submissions or requests; and (2) to afford adjudication rights in matters over which the agencies have jurisdiction. See Harber v. Rhodes, 248 Ark. 1188, 455 S.W. 2d 926 (1970). The statute upon which petitioner relies, Ark. Stat. Ann. § 76-201, supra, has to do only with the promulgation of the rules or regulations, an issue, not here in issue. It follows that Ark. Stat. Ann. § 76-201 cannot be said to affect the adjudicatory provisions of the Administrative Procedure Act.

Petitioner’s contention that Amendment 42 § 1 to the Arkansas Constitution removes the authority of the State Highway Commission is not supported by Section 1 of the Amendment which provides:

“There is hereby created a State Highway Commission which shall be vested with all the powers and duties now or hereafter imposed by law for the administration of the State Highway Department, together with all powers necessary or proper to enable the Commission or any of its officers or employees to carry out fully and effectively the regulations and laws relating to the State Highway Department.” [Emphasis ours]

Finally the petitioner states that the complaint of Donrey Communications Company, Inc. does not indicate jurisdiction under Ark. Const. Art. 16 § 13, as to illegal exactions and then contends that the circuit court lacks jurisdiction of the complaint under Art. 16, § 13 of the Arkansas Constitution, citing Towns v. McCollum, 221 Ark. 920, 256 S.W. 2d 716 (1953). Since the case of Towns v. McCollum, supra, involved a taxpayers’ action in chancery to enjoin the holding of an election to determine whether horse racing was to be permitted in the county and was upheld as an action to enjoin an illegal exaction, we are at a loss to understand the contention of petitioner that the circuit court had no jurisdiction of the complaint of Donrey Communications which admittedly did not allege an illegal exaction.

Writ denied.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.


author: Frank Holt, Justice.

text:
    Richard C. HARRISON v. Jack GLASS
    78-102
    572 S.W. 2d 143
    Opinion delivered October 23, 1978
    (Division I)

      Hardin, Jesson & Dawson, for appellant.

      Walters & Davis, by: James O. Cox, for appellee.
   Frank Holt, Justice.

This appeal relates to the interpretation of our compulsory counter-claim statute. Ark. Stat. Ann. § 27-1121 (Repl. 1962). Appellant Harrison was a defendant in a tort action brought by appellee Glass. There Harrison filed his answer on February 20, 1976, and the case was tried on September 25, 1977. In the interim, or after the issues were joined, an incident occurred on May 17, 1976, between Harrison and Glass which resulted in Harrison filing a separate action on September 2, 1977, against Glass or before trial of the initial or first action between them. Appellee Glass moved to dismiss the September 2 lawsuit on the grounds of the pendency of the first lawsuit between the parties inasmuch as appellant had failed to set out that cause of action by way of a defense or counter-claim in the first suit as required by § 27-1121. The court granted appellee’s motion and dismissed the complaint holding that appellant’s subsequent suit should have been brought as a counter-claim in the pending or initial litigation. For reversal Harrison contends that the court erred in dismissing his complaint because he was not required by § 27-1121 to assert as a counter-claim his separate cause of action since it arose after the issues were joined in the first or pending litigation. We agree.

Ark. Stat. Ann. § 27-1121 (Repl. 1962) provides in pertinent part:

Fourth: In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense, counter-claim or set-off, whether legal or equitable, as he shall have.....[italics supplied.]

The issue succinctly stated is whether this statute requires a party defendant, as here, to plead a counter-claim as a defense to a plaintiff’s lawsuit when the defendant’s cause of action arises subsequent to the time the defendant has filed an answer in the initial law suit. In other words, as the appellee states, the issue is whether the language “as he shall have” means only a cause or causes of action which existed at the time a defendant, as here, filed a timely answer and joins the issues. In May v. Exxon Corp., 256 Ark. 865, 512 S.W. 2d 11 (1974), we interpreted § 27-1121 to require that the appellant defendant there had to assert by counter-claim his cause of action against appellee plaintiff since it was in existence at the time the complaint was filed against him. We held this was true whether such cause of action arose out of the same transaction or occurrence. Here we construe the words “as he shall have” to mean that our compulsory counterclaim statute does not embrace a cause of action that occurred in favor of a defendant and against a plaintiff subsequent to the issues having been joined between these same parties. Therefore, appellant, the defendant in the initial action, was not required to amend his answer to assert a counter-claim. However, if a litigant chooses to do so, he is not precluded from amending his pleadings within a reasonable time to assert a counter-claim with the approval of the court or the court, in its discretion, considers it appropriate “in furtherance of justice.” Ark. Stat. Ann. § 27-1160 (Supp. 1977) and May v. Exxon Corp., supra.

Reversed and remanded.

We agree: George Rose Smith, Byrd, and Howard, JJ.


text:
    John Larry LINDSEY and James E. JACKSON v. STATE of Arkansas
    CR 78-118
    572 S.W. 2d 145
    Opinion delivered October 23, 1978
    (Division I)

      John W. Achor, Public Defender, for appellants.

      Bill Clinton, Atty. Gen., by. Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellants were charged with robbery and found guilty by the court sitting as a jury. Appellant Lindsey was sentenced to seven years’ and Jackson to five years’ imprisonment. The only issue on appeal is whether the trial court erred in refusing to suppress the in-court identification of them by the prosecuting witness. Appellants objected to their in-court identification by the robbery victim on the ground they had been subjected to an out-of-court identification by him which did not involve a line-up. They argue that the out-of-court identification was impermissibly suggestive and the in-court identification did not stem from a source independent of the prior confrontation. Thus, the identification should have been suppressed. We cannot agree.

The fact that a confrontation between a victim and suspects takes place at a show-up rather than a line-up does not, without more, constitute a violation of constitutional rights. Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). “Reliability is the linchpin in determining the admissibility of identification testimony for confrontations,” and if, from the “totality of the circumstances,” the confrontation did not give rise to a “very substantial likelihood of irreparable misidentification,” the in-court identification is properly admitted. Manson v. Brathwaite, supra; see also Simmons v. U.S., 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 1247 (1968); and McCraw v. State, 262 Ark. 707, 561 S.W. 2d 71 (1978). There are several factors to consider in determining the reliability and admissibility of the identification testimony. These include the time between the commission of the crime and the confrontation, the attentiveness of the witness and his opportunity to view the accused at the time of the crime, the accuracy of his description of the accused, and the level of his certainty at the confrontation. These factors must be weighed against the “corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, supra; and Neil v. Biggers, supra.

Here the victim testified that the robbery occurred as he was walking across a bridge to work. He observed his assailants for three to five minutes as they approached and walked past him. Lindsey then approached him alone, asked him for his money and hit him. The other three robbers then joined Lindsey. Lindsey again asked him for his money and knocked him down. He looked directly at the participants and at Lindsey’s face when he asked for money. Although it was dark, there was a bridge light ten or fifteen feet away. The momentary loss of his glasses upon being knocked down did not impair his vision. He immediately reported the robbery. He positively identified the four youths at a show-up approximately ten minutes after the police were notified. He was able to tell the police that the first two suspects shown to him did not actually hit him. He had reported to the police that the robbers took one $10 bill and two $1 bills. Within a few minutes following the robbery, the arresting officer found precisely those denominations in appellant Jackson’s coat pocket.

Further, the reliability of the identification is not diminished by the fact that the police officer who talked with the victim immediately after the robbery had had appellants and their confederates under surveillance for more than an hour in North Little Rock, watched them walk south on the Main Street bridge shortly before the robbery, and then picked them up at the foot of the bridge after being notified of the crime.

From the totality of the circumstances, we cannot say, as a matter of law, that “a very substantial likelihood of an irreparable misidentification” was demonstrated here.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Howard, JJ.


author: Darrell Hickman, Justice. Conley Byrd, Justice,

text:
    Jack SANDERS v. STATE of Arkansas
    CR 78-48
    572 S.W. 2d 397
    Opinion delivered October 23, 1978
    (In Banc)
    [Rehearing denied December 20, 1978.]

      Dale S. Braden, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Jack Sanders was convicted of the manufacture of a controlled substance in the Logan County Circuit Court and sentenced to ten years in the Department of Correction.

The narrow issue presented to us on appeal is whether Jack Sanders’ garden was protected from a warrantless search. We find that it was and reverse the judgment of the trial court.

Several state and local police officers proceeded to Sanders’ home, which is a house trailer located on a tract of land in Sorghum Hollow, east of Midway, in Logan County. Sanders has on his place some junk automobiles and claims to be in the salvage business; otherwise, his place is an ordinary rural homeplace.

Sanders was in his yard next to his house trailer when the officers arrived. He was served with a search warrant and the officers proceeded to search the premises. According to one of the state policemen, “. . . we found approximately fourteen hundred marijuana plants in his garden, or what appeared to be a garden.”

The sheriff, in answer to questions, described where the marijuana was found:

Q. Was there anything else growing there with it?
A. Well, I believe he had a garden there, and I think there was some corn.
Q. It was growing in the garden with some corn, and maybe some other vegetables?
A. Yeah, I think that’s right.
Q. Did you have to go through a fence to get there?
A. I think we went through a fence when we drove the vehicles in there, we had to go out a little ways from the trailer and come through.

Sanders’ garden, according to the evidence presented during the suppression hearing, was located some 100 to 200 yards behind his house trailer. A fence separated the house trailer from his garden. The garden contained corn, tomatoes, onions, radishes and the marijuana plants. There was a water hose that ran from the house trailer to the garden.

The question presented at a pretrial hearing on a motion to suppress the evidence went mostly to the validity of the search warrant. Sanders’ place was searched pursuant to a search warrant, which the court had no difficulty in finding invalid. The court concluded:

. . . However, it is the Court’s opinion that the protection of the constitution as to unreasonable search does not extend to fields or gardens or things of that nature, and does not believe it was necessary in order to make the search to have any search warrant at all. . . . [Emphasis added.]

The court was wrong in its conclusion that a garden is necessarily the same as an open field and, consequently, may be searched without a warrant or for other good legal cause.

There is a line of cases that permits an open field to be searched without a warrant. In Wyss v. State, 262 Ark. 502, 558 S.W. 2d 141 (1977), a truck was searched approximately a mile from a residence. In Bedell v. State, 257 Ark. 895, 521 S.W. 2d 200 (1975), a search took place in or near the middle of a 360 acre unenclosed tract. Apparently a residence was located near one edge of the tract. Ford v. State, 264 Ark. 141, 569 S.W. 2d 105 (1978), (mandate stayed pending petition for writ of cert., Sept. 18, 1978), a search was conducted of an open field on which was located no residence at all. These cases were legitimately cases of an open field search. In a similar, but not controlling case, we suppressed evidence found in an open field where entry was gained through the curtilage and information was obtained in the curtilage leading officers to contraband in an open field. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971).

Property seized that is located on one’s person, at one’s residence, or within the “curtilage” surrounding the residence may not be seized without a search warrant, or pursuant to other legal means.

One’s dwelling and curtilage have consistently been held to be areas that may normally be considered free from government intrusion. Durham v. State, supra. A search warrant, or other proper legal cause, would be required for law enforcement officers to gain entry to one’s dwelling and curtilage. Normally a garden is included within the curtilage.

Black’s Law Dictionary (Fourth Edition) defines curtilage as follows:

The curtilage of a dwelling-house is a space, necessary and convenient and habitually used for the family purposes and the carrying on of domestic employments. It includes the garden, if there be one, and it need not be separated from other lands by a fence.

A somewhat more expansive definition of curtilage may be found in 68 Am. Jur. 2d, § 19, at page 676:

It has been said that the curtilage of a dwelling is a space necessary and convenient, habitually used for family purposes and for the carrying on of domestic employment; it is the yard, garden, or field which is near to and used on connection with the dwelling. Accordingly, a barn has been held to be within the curtilage of a house although it was 70 to 80 yards away and surrounded by a fence. And a barn has been held to be within the curtilage of a dwelling house on a small farm, where there were tracks of vehicles and footprints leading both to the house and to the barn, and there was a driveway between the barn and the house.

The State’s argument that this was an open field search is inconsistent with the action of the officers and the physical facts in this case. First, they did not attempt to conduct an open field search. They attempted to search Sanders’ premises pursuant to a warrant that was later declared invalid. The first witness called by the State called it a garden — not an open field.

Essentially, the State is using the open field argument as a crutch to shore up an otherwise illegal search. The officers were right the first time — a warrant was needed because the plot was Sanders’ garden, next to his dwelling.

The distance between the garden and the dwelling, and the amount of vegetables as compared to the amount of marijuana in the plot are not controlling in this case. Clearly it is too late to attempt to change the physical facts to justify this search on the basis of such theoretical and interesting, but unconvincing arguments.

Therefore, we conclude that the trial court was in error in ruling that the garden was an open field, reverse the judgment of the trial court and remand the matter for a new trial.

Reversed and remanded.

Harris, C.J., and Fogleman and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. The majority in making the area searched to come within its definition of a “garden” ignore the testimony in the record including the pictures — i.e., plaintiff’s Exhibits Nos. 1, 2, 3, and 5. Officer Ed Wolfe with the Arkansas State Police at page 33 of the record was specifically asked:

“Q. At the time you got there were you looking in the direction where these things were located? Would they have been visible to the naked eye?
A. Right, if you had been looking in the general direction they would have been visible.
Q. They were not within any enclosure of any sort, or high fence or anything like this?
A. No, sir, half of them wasn’t.
Q. You would call it sort of an open field?
A. Yes, it would have been an open field; one row of corn in the middle, and an open field.”

Sheriff Rufus Nichols with reference to the location of the marijuana at page 45 of the record testified as follows:

“Q. Was this marijuana that was growing, was it out in the open; and by open, I mean was there any fences, big high fences, or anything obstructing your vision?
A. No, there wasn’t any fences.
Q. Would you refer to it as being in an open field?
A. Well, it was in a field, I’d say south of his home, or southwest.”

In addition to the foregoing, appellant introduced defendant’s Exhibit § 1 (attached hereto as an appendix) and in doing so readily admitted that there was a pond between his trailer and the growing marijuana that is not shown on the exhibit. At page 57 of the record appellant testified as follows, to-wit:

“Q. But except for the barbed wire fence, it is just an open field?
A. Yes. Well, I put up a few wires across it, and had no trespassing signs all around. My cars was up here, and I had a lot of trouble with people stealing.”

While I admit that a true garden would ordinarily fall within the confines of what the ordinary person would consider the curtilage of his home, I submit that to call the one row of corn and the few vegetables here grown among the ten rows of marijuana anywhere from 200 to 300 feet in length a garden bastardizes the plain meaning of the term garden even within the definitions of a garden set out in the majority opinion. As pointed out in Romano v. Thrower, 261 Ala. 361, 74 So. 2d 235 (1954), the fact that vegetables are grown in an area for a money crop as distinguished from personal use does not constitute the area a “garden.” The definitions of a garden cited by the majority and taken from Black’s Law Dictionary and 68 Am. Jur. 2d at page 676 both require that the space be used for family purposes. Whether the appellant was raising the 1400 marijuana plants here (a pick-up truck load) for family purposes or for commercial purposes was certainly a fact issue for the trial court and I cannot say that his finding could be said to be against the totality of the evidence.

Neither can the majority rely upon the fact that the search here was part of the fruit of the poisonous vine. Our cases hold that one who must rely upon that theory to suppress evidence has the burden of showing that the illegal search of the curtilage furnished a clue for the open field search, Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968). No such evidence was here shown.

The quote of the trial court set out in the majority opinion would lead one to believe that the trial court considered the area in question a garden. I consider the quote to be taken out of context. The statements of the trial court are hereinafter set out as follows:

“. . . You cannot get a search warrant now for a house and then search a garage, or any other appurtenance to the house. So it has been extended to not only the house, but the judicial interpretation includes all other buildings. You are protected from a search without having a valid warrant. However, it is the Court’s opinion that the protection of the constitution as to unreasonable search does not extend to fields or gardens or things of that nature, and does not believe it was necessary in order to make the search to have any search warrant at all. So, regardless of the validity of the search warrant, the Court believes that the field itself is not protected from a search without any kind of a search warrant. So you have raised some very interesting points, and also the search warrant does not describe what is to be searched other than actually the trailer itself. But in spite of that, Mr. Braden, the Court does not feel like the constitution affords this type of protection to a search of a field, but only to homes or buildings, but not to fields. So the Court is going to overrule your motion to suppress, and hold that even if the search warrant here is invalid then the officers would have a right to make a search without any search warrant at all. Anything obtained from the field would be admissible into evidence, and the Court will note your exceptions to the Court’s ruling.”

For the reasons stated, I respectfully dissent.

Harris, C.J., and Fogleman, J., join in this dissent.

APPENDIX

DEFENDANT’S EXHIBIT NO. 1


text:
    Frank HINGLE v. Mazie HINGLE
    78-93
    572 S.W. 2d 395
    Opinion delivered October 23, 1978
    (In Banc)
    [Rehearing denied November 20, 1978.]

      Stephen M. Sharum, for appellant.

      Sam Hugh Park, for appellee.
   George Howard, Jr., Justice.

This is an appeal from a decision in the Chancery Court of Crawford County awarding a divorce decree to appellee, and, among other things, approving a property settlement agreement executed between the parties, providing for the support and maintenance of the parties’ minor children and alimony for the appellee.

For reversal, appellant has asserted six points which he contends require a reversal of the trial court’s decree.

We are persuaded that appellant’s first point for reversal, namely:

“The trial court lacked jurisdiction to enter the decree of October 18, 1977, since the appellee failed to comply with Arkansas Statutes Annotated Section 34-1207.1 and 34-1208 requiring proof of residency and corroboration of residency.”

has merit, and we, therefore, reverse and remand this case to the trial court.

Ark. Stat. Ann. § 34-1207.1 (Repl. 1962) provides, in material part, as follows:

“Hereafter, in uncontested divorce suits . . . [corroboration] of plaintiff’s ground or grounds for divorce shall not be necessary nor required.
''''This does not apply to proof as to residence which must be corroborated, as heretofore, ...” (Emphasis supplied)

In reviewing the record before us, it is plain that appellee-plaintiff was the only witness that testified in her uncontested divorce action. There was no testimony to corroborate her testimony that she lived in Crawford County, Arkansas, for the statutory period required. We are not unmindful that we have emphasized that corroboration in an uncontested divorce case may be comparatively slight when it is clear that there is no collusion between the parties. But the problem that confronts us here is the fact that there is no testimony whatsoever to corroborate the appellee’s testimony relative to residency.

Of course, this record reflects that the appellee has filed two previous actions for divorce in the Crawford County Chancery Court, both of which were subsequently dismissed; and it is clear from the record that the parties purchased approximately 240 acres of real estate in Crawford County and constructed a dwelling house on this property; and that the appellant executed an entry of appearance and did not contest the divorce. However, we hold that this is not sufficient to comport with the statutory requirement inasmuch as an issue of residence deals directly with the authority, power and right of the trial court to act. Thus, the corroborating evidence, although relatively slight, should not be speculative and vague in scope. The question of residency is jurisdictional and may be raised at any stage of the divorce proceeding.

Reversed and remanded.

Byrd, J., dissents.


text:
    In the Matter of Annexation of Land to the City of Russellville Herman CHAPPEL et al v. Norman L. CARNAHAN et al
    78-107
    572 S.W. 2d 141
    Opinion delivered October 23, 1978
    (Division I)

      Jon R. Sanford, for appellants.

      Williams & Gardner, for appellees.
   George Howard, Jr., Justice.

This is an appeal by a minority of the land owners in numbers as well as the amount of real property involved in a proceeding for the annexation of certain lands to the City of Russellville, Arkansas. Only one issue is presented, namely, the accuracy of the legal description of the proposed territory to be annexed inasmuch as the parties stipulated that the annexation petition contains more than 50% of the land owners in the area and that they own more than 50% of the land included in the petition.

The defect in the description complained of comes within the following call:

“. . . thence following the meanderings of Elevation 338 to a point where Elevation 338 intersects the West right-of-way line of the Missouri Pacific Railroad right-of-way, said point being 1045 feet North and 454 feet East, of the Southwest Corner of the Northeast Quarter of the Northeast Quarter (NE 1/4 NE 1/4), Section 36, Township 8 North, Range 21 West; thence in a Northeasterly direction [should have been thence in a Southeasterly direction] across the center line of the Missouri Pacific Railroad right-of-way to a point where Elevation 338 intersects the East right-of-way line of the Missouri Pacific Railroad right-of-way, said point being 895 feet North and 723 feet East of the Southwest Corner of the Northeast Quarter of the Northeast Quarter (NE 1/4 NE 1/4), Section 36, Township 8 North, Range 21 West. ...” (Emphasis and statement enclosed in brackets added)

The Pope County Court, on October 21, 1977, entered its order denying the annexation. On January 9, 1978, the Pope County Circuit Court, hearing the matter de novo, on appeal, reversed the County Court holding that the property was properly described and that the petition should be granted.

We are persuaded that the judgment and holding of the Circuit Court of Pope County is supported by substantial evidence and accordingly, we affirm.

Danny Hale, registered land surveyor, in testifying about the error contained in the above metes and bounds description, testified as follows:

“Q. This calls for the reader of the description to establish a point that is 1045 feet north and 454 east of the southwest corner of the forty in question; did you do that?
A. Yes, sir.
Q. Then you were to proceed in a northeasterly direction, according to the description, to another point?
A. Yes, sir.
Q. Can you go northeasterly and arrive at that second point?
A. No, sir.
Q. Why not?
A. Because it would be southeasterly instead of northeasterly.
Q. The second point is 895 feet north and 723 feet east of the first point, so it is south of the first point?
A. That is correct.
Q. And it is also east of the first point?
A. That is correct.
Q. If you go northeasterly and try to reach that point, can you reach it?
A. No, sir.
Q. Will this description close there?
A. No, sir.”

Pursuant to an inquiry made by the trial court, Mr. Hale testified as follows:

“Q. The 845 feet is a definite reference?
A. Yes, sir, and also the 723 feet east. The only error I can see is in the direction.
Q. You are saying that it should be southeasterly instead of northeasterly in order for the other references to coincide?
A. That’s correct.”

On cross-examination by Mr. Gardner, Mr. Hale testified as follows:

“Q. In your opinion, as a surveyor, from looking at the legal description it should have read southeasterly?
A. Yes, sir.
Q. Now, where does the — the Petition states that it runs north in a northeasterly direction across the center line of the Missouri-Pacific right-of-way to a point; is that right?
A. Yes, sir.
Q. Now, is that point described in such a manner as to be definite and certain, and could you find it if you went out and followed proper survey procedure?
A. Yes, sir.”

It is clear from the evidence contained in this record that even though a call in the metes and bounds description was erroneously designated as “thence in a northeasterly direction,” when in fact it should have been “thence in a southeasterly direction,” the points in question are certain and definite enough to enable a trained surveyor to plat and identify the property involved. We are persuaded that O’Kane v. McLean Bottom Levee & Drainage District No. 3, 211 Ark. 938, 203 S.W. 2d 392 (1947), is applicable where we stated:

‘Where a deed described the lands conveyed by metes and bounds, and other description that can be made certain by evidence aliunde, it is sufficient.’

According to the stipulation entered into between the parties, the only issue involved in this case was the accuracy of the description contained in the annexation petition. However, appellant has now asserted as error the failure of appellees to file an accurate map of the territory to be annexed. This issue was not tendered to the trial court for consideration. It is well settled that an issue raised for the first time on appeal will not be considered by this Court.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.