author: Frank Holt, Justice.

text:
    STATE of Arkansas v. Joe Lawrence CASHION et ux
    CR 76-29
    539 S.W. 2d 423
    Opinion delivered July 6, 1976
    [Rehearing denied September 13, 1976.]

      Jim Guy Tucker, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellant.
    No brief for appellees.
   Frank Holt, Justice.

This is an interlocutory appeal by the state pursuant to Arkansas Rules of Criminal Procedure, 16.2 (d) and 36.10 (1975). The trial court held that the description “and curtilage and appurtenances contained in the description of the premises to be searched as stated on the face of the search warrant is of no legal consequence.” The court then “ordered that any and all evidence contained in any out building or on any premise other than the residence and the area [a garden] observed by [the officer] be suppressed.” We make it clear that the only issue presented is whether the words “and curtilage and appurtenances” were a sufficient description in a search warrant to allow the search of a chicken house located 20 to 40 feet from the described residence or farmhouse and a hay shed located 300 feet from the house and 25 to 30 feet from a barn described in the search warrant. It appears that no evidence (marijuana) was found in the barn.

It is well established that only unreasonable searches and seizures are prohibited by our State (Art. 2, § 15) and Federal (Fourth Amendment) Constitutions. Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640 (1975); and Carroll v. United States, 267 U.S. 132 (1924). The degree of particularity required of a description in a search warrant is governed by the facts and circumstances of each case. Easley v. State, 249 Ark. 405, 459 S.W. 2d 410 (1970); and Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394 (1971).

Here the search warrant contained a description of a farmhouse with a red barn and also the additional words “and curtilage and appurtenances.” Pursuant to this description, the officers searched the farmhouse and the other buildings adjacent thereto, all within 300 feet of the described house. In Walker v. U.S., 225 F. 2d 447 (5th Cir. 1955), the court said:

The barn here searched was a domestic building constituting an integral part of that group of structures making up the farm home. Every case must be decided upon its own peculiar facts, and we hold that, under the facts here, this barn was a part of the curtilage. In Taylor v. United States, 1931, 286 U.S. 1, 52 S. Ct. 466, 76 L. Ed. 951, the house searched was a metal garage adjacent to the dwelling house; in Robinson v. United States, 6 Cir. 1948, 165 F. 2d 752, the search was a smokehouse; and in Walker v. United States, 5 Cir. 1942, 125 F. 2d 395, 396, the search was of a shed consisting of a chicken house and garage, which stood fifty to sixty feet from the dwelling house; in each instance it was considered that the curtilage was involved.

See also Rosencranz v. United States, 356 F. 2d 310 (1st Cir. 1966); United States v. Meyer, 417 F. 2d 1020 (8th Cir. 1969); and 68 Am. Jur. 2d, Searches and Seizures, § 78. Cf. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971). In the case at bar we hold the description of the farmhouse, barn, “and curtilage and appurtenances” was sufficient to authorize the officers to search the chicken house and hay shed on the farm.

Reversed and remanded.


source: Caselaw Access Project

author: Elsijane T. Roy, Justice.

license: Public Domain

text:
    G. B. CHRISTMAS et al v. Mary Shelton RALEY et al and MURPHY OIL CORPORATION et al
    75-377
    539 S.W. 2d 405
    Opinion delivered July 6, 1976
    [Rehearing denied September 13, 1976.]

      Keith, Clegg & Eckert, by: Oliver M. Clegg and Ned A. Stewart Jr., for appellants.

      Smith, Stroud, McClerkin, Conway & Dunn, by: Hayes McClerkin, for appellees and intervenor-appellees.
   Elsijane T. Roy, Justice.

Appellees Mary Shelton Raley, et al. and intervenor-appellees (interveners) Murphy Oil Corporation and American Petrofina Company of Texas (Petrofina) sought a declaratory judgment that two oil fields,, unitized on a field-wide basis by order of the Arkansas Oil and Gas Commission (Commission), consonant with Ark. Stat. Ann. §§ 53-115(c)(1) et seq., had terminated as units. Appellees and intervenors requested an order cancelling as clouds on their title the oil and gas leases upon which the units were created.

Appellees are the owners and lessors of the mineral acreage in the units here involved, known as the Genoa and Genoa-Tokio Units. Intervenors are lessees of this mineral acreage who acquired their leases in 1973 and 1974 subsequent to creation of the units by the Commission. Appellants G. B. Christmas et al. are either lessees or the assigns of lessees of the acreage upon which the units are based, and had acquired the original mineral leases to the land. The Genoa Unit was created by the Commission on February 16, 1962, and the Genoa-Tokio Unit on October 17, 1963. Both fields are devoted to the extraction of hydrocarbon compounds by a water injection secondary recovery technique and both may, for practical purposes, be treated as one field.

Concurrently with the creation of the units by the Commission agreements were drafted which stipulated the rights of the respective parties in relation to the unit operations. Appellees and intervenors rely upon Article 18.1 of the unit agreements (UA) to support their termination claims. It provides:

The term of this agreement shall be for the time that Unitized Substances are produced in paying quantities and as long thereafer as Unit Operations are conducted without a cessation of more than ninety (90) consecutive days, unless sooner terminated by Working Interest Owners in the manner herein provided.

Appellants denied that the units and/or the leases on which the units were based terminated; questioned the chancellor’s jurisdiction to act in this case; pled estoppel, waiver, laches and limitations; affirmatively sought an order cancelling the leases of intervenors as clouds on their title to the unit and sought damages against both groups for disturbing their peaceful possession of the units.

The chancellor held that the Genoa-Tokio Unit was terminated on November 1, 1967; that the Genoa Unit was terminated on April 1, 1973; that the leases were terminated on April 1, 1973; that jurisdiction was present. He granted the cancellation order sought by appellees and intervenors removing the cloud on their titles. He denied the cancellation order sought by appellants and also denied the damages sought by appellants. From the rulings adverse to them appellants have appealed.

Appellants first urge that the chancellor lacked jurisdiction, contending that jurisdiction was exclusively in the Commission. We find no merit in this contention. The nature of the relief requested by appellees and intervenors was in the main equitable in nature.

In Spartan Drilling Company v. Bull, 221 Ark. 168, 252 S.W. 2d 408 (1952), the issue of chancery jurisdiction was raised, and we held:

. . . [T]hat the jurisdiction granted to the Oil and Gas Commission in its supervisory capacity over oil and gas production is not exclusive, and that appellees had the right to maintain the instant suit.

We also stated in Spartan:

It is not infrequent that a dual remedy, one in the judicial and another in the administrative forum, may be available to the same party for the enforcement of the same right. 42 Am. Jur., Public Administrative Law, § 252.

Furthermore, appellants waived any objection to chancery court jurisdiction by affirmatively seeking relief, i.e. cancellation of the leases of the intervenors and damages from both appellees and intervenors. See Nichols v. Lea, 216 Ark. 388, 225 S.W. 2d 684 (1950).

Appellants also contend that the chancellor erred in holding that the Genoa Unit terminated on April 1, 1973, and in holding that the leases on which the unit was based likewise terminated on April 1, 1973.

It is the duty of the court to construe a contract according to its unambiguous language without enlarging or extending its term. New York Life Insurance Company v. Dandridge, 202 Ark. 112, 149 S.W. 2d 45 (1941); American National In surance Company v. Hamilton, 192 Ark. 765, 94 S.W. 2d 710 (1936).

In addition thereto, the contract must be construed against the party who had same drafted, in this instance appellant Christmas. Yellow Cab Company of Texarkana v. Texarkana Municipal Airport, 230 Ark. 401, 322 S.W. 2d 688 (1959); W. T. Rawleigh Company v. Wilkes, 197 Ark. 6, 121 S.W. 2d 886 (1938). In light of these authorities we review the record herein.

The Commission’s records indicate that water commenced being injected into the Paluxy Formation, Young Sand, Genoa Unit in the month of July, 1962, and that by September of 1963 maximum production had been obtained from the unit which was in excess of 25,000 barrels of oil per month. From June of 1968, the production records indicate a sharp decline in production from the unit. Commencing in June of 1968, there was no production for a period of nine months, in 1969 very little production. Since December, 1971, no water has been injected into the formation and from June 1972, through May of 1973, there was no production from the Genoa Unit.

Landowners holding approximately 600 acres of the mineral ownership of the units testified as to the present status of the various wells indicating little or no production on their property for approximately the last five years. The following testimony is illustrative of that found throughout the extensive record of the trial.

School officials of Genoa Central School District testified that none of their wells had been operative for several years and that there had been a period of five years in which they have received no royalty payments. The testimony of Mr. and Mrs. Bassett clearly indicates there had been no production under their leases since the year 1971. The testimony of Cole Young indicated there had been no production on his property since 1971, and for this reason and others he had attempted to notify Christmas to vacate the premises and had contacted an attorney and the Commission regarding termination of his lease. The Commission advised him that it could not do anything about it — that he would have to go to court.

An expert independent consulting engineer, Tom G. Calhoun II, testified that production in paying quantities in the Genoa Unit ceased in June, 1968. Calhoun’s testimony further reflected that initially the Genoa Unit water flood project was successful but that its economic life ended in 1968; though resumed to a limited extent in the latter part of 1969, operations were not profitable after the 1968 date. His expert opinion was that due to the nature of the Paluxy Formation, the Genoa Field can no longer be operated as a water flood secondary recovery program. Since the testimony of Mr. Calhoun is unrefuted, his testimony must be given strong weight by the court. Blair v. Clear Creek Oil and Gas Company, 148 Ark. 301, 230 S.W. 286 (1921).

Jack Denson, petroleum engineer for Petrofina, testified that the Genoa Unit was not capable of a secondary recovery program as it existed in March, 1975.

The unrefuted testimony is that production in “paying quantities” from the Genoa Unit ceased in 1968 and that subsequent thereto there have been two periods of cessation well in excess of “ninety days.” The Commission’s records of the Genoa-Tokio Unit indicate that a period of approximately six years existed in which there was no production of unitized substances from the unit.

There was no evidence introduced which would show that the non-production is temporary; nor is there any evidence to indicate that Christmas, as the operator of the unit, was using reasonable diligence to maintain production in the units, or in connection with any individual lease. The lessors are being injured substantially, and it must be presumed from the facts and circumstances presented at trial and contained within the record that the lessee abandoned the units and the individual leases during the periods of non-production.

A lessee must act for the mutual benefit of both lessor and lessee; Smart v. Crow, 220 Ark. 141, 246 S.W. 2d 432 (1952); Ezzell v. Oil Associates, Inc., 180 Ark. 802, 22 S.W. 2d 1015 (1930); and if such is not evident, the involved leases should be cancelled.

The UA also contains the following language in paragraph 3.5:

Nothing herein shall be construed to result in the transfer of title to the Oil and Gas rights by any party hereto to any other party or to Unit Operator. The intention is to provide for the cooperative development and operation of the Tracts and for the sharing of Unitized substances as herein provided. (Italics supplied.)

Consequently an analogy can be made with the implied covenant to develop as it applies to oil and gas leases. We recognized the implied covenant to develop in Ezzell v. Oil Associates, Inc., supra. In Zappia v. Garner, 259 Ark. 794, 536 S.W. 2d 714 (1976), we quoted from Miller v. Mauney, 150 Ark. 161, 234 S.W. 498 (1921), as follows:

... In the construction of mineral leases such as is involved in this case, the authorities uniformly hold that there is an implied obligation on the part of the lessee to proceed with the search and also with the development of the land with reasonable diligence according to the usual course of such business, and that a failure to do so amounts in effect to an abandonment and works a forfeiture of the lease.
. . . The reason for the rule is that where the lessor receives as royalty or rental a certain percentage of the output of the lands as his only compensation for their use by the lessee for exploration and development, when such work ceases, his compensation ends, and the consideration for the lease fails.

The purpose of the execution of the UA is clearly set forth; the obligation created by the UA was for secondary recovery through the injection of water; and, in this instance, the operator and majority owner of the units involved ceased injecting water into the formation comprising the Genoa Unit in December, 1971, and in the formation comprising the Genoa-Tokio Unit some time during the year 1967.

Appellants also argue that:

They are entitled as a matter of law fo have this Court assume that in holding the Unit did not terminate prior to April 1, 1973, the Chancellor, for sound legal reasons, concluded that Article 18.1 did not operate so as to terminate the Unit prior to April 1, 1973. And to the extent Article 18.1 did not operate so as to terminate the Unit prior to April 1, 1973, it could not have operated so as to terminate the Unit on April 1, 1973. * * *
Absent Article 18.1 to justify the Chancellor’s April 1, 1973, Unit termination date, there is nothing in this record, legal or factual, to justify Unit termination on this date. This renders the Chancellor’s decision in this regard arbitrary and it cannot stand.

We find no merit whatever in this contention. The foregoing legal authorities and evidence from the record amply support the finding of the chancellor that the units and the leases terminated under the terms of Article 18.1 of the UA and also under the implied covenant to develop contained in Article 3.5 of the UA. Appellants are in no position to complain because under the facts the chancellor could have determined the date of termination as prior to April 1, 1973. This date was the end of an eleven-month period with no production. Appellants have not been prejudiced by the April 1, 1973 date in that they had the opportunity for potential use of the leases a longer period of time than would have been possible if the chancellor had determined the leases terminated at an earlier date.

Appellants contend the action of appellee Young in barring appellant Christmas from entering on the property estops him from claiming unit termination.

Cole Young testified that when he moved on the property in 1969 the inefficient operations of appellant Christmas had practically ruined the land. Among the things he complained of in a registered letter to Christmas are the following: The condition of the pipe being used looked like a sifter there were so many holes, causing it to leak excessively; timber land was destroyed; slush pits had formed; cable, pipe and equipment were scattered all over the property.

Young denied ever barring Christmas’ entry, but stated he advised him that he wanted his place cleaned up before operations were resumed. The chancellor heard the testimony and resolved this issue adversely to appellants. We cannot say his determination is against the preponderance of the evidence.

Appellants also urge that appellees and intervenors were precluded from making leases adverse to the Unit Operators. The gist of this argument is that intervenor Petrofina discovered the Day’s Creek Field in midsummer of 1972. Thereafter it commenced subsurface studies in the vicinity of the Genoa Unit. According to its geologist, Bob B. Davis, in July or August of 1973 the company decided to extend its seismic work through the Genoa Unit to tie its “shot line” to an abandoned well drilled some years before by Carter Oil Company.

With this in mind permission of appellant Christmas was obtained to cross the Genoa Field Unit. According to Davis, permission was received from appellant Christmas, as Unit Operator, on the condition that Christmas would be furnished with a copy of the information obtained. This information was not furnished as promptly as Christmas thought it should have been and since the property had been entered with his permission appellants contend appellees and intervenors were estopped from making leases adverse to the Unit Owners.

A party claiming estoppel must prove it strictly, and facts constituting an alleged estoppel cannot arise through argument or inference as nothing can be supplied by intendment. Ford Motor Credit Company v. The Exchange Bank & Trust Company, 251 Ark. 881, 476 S.W. 2d 208 (1972).

Further, a party claiming estoppel must prove he has relied in good faith on wrongful conduct and has changed his position to his detriment. American Casualty Co. v. Hambleton, 233 Ark. 942, 349 S.W. 2d 664 (1961). The record is bare of any conduct on the part of appellees and/or intervenors which caused appellants to change their position to their detriment. The alleged acts relied on by appellants to give rise to the doctrine of estoppel occurred from August 1973 through March 1974, four months or more after April 1, 1973, the date the trial court determined that appellants’ legal interest in the units and the leases that comprise same had terminated. Estoppel may be urged for the protection of a right, but it can never create a right. Appellants manifest an interest in the leases which was not apparent during the period they enjoyed the exclusive leasehold rights, and they cannot now be heard to complain of intervenors acquiring the same interest, since appellants’ inaction resulted in termination of their leases.

Appellants contend the court erred in excluding the deposition testimony of Frank B. Aumiller, an independent lease broker employed by Petrofina to acquire oil and gas leases in Miller County. The objections to admission were that at trial no evidence was introduced as to Aumiller’s out-of-state residence and further that appellants made no effort to have a subpoena issued for the deponent’s attendance at trial. Since the parties stipulated that Aumiller was from Mississippi there appears to be merit in this contention of appellants. However, no showing of prejudice resulted from the exclusion of the testimony, since Aumiller’s testimony dealt only with the issue of damages and the action complained of took place well after the time the leases terminated. Error without prejudice is not grounds for reversal. Bridges v. Arkansas Motor Coaches, Ltd., Inc., 256 Ark. 1054, 511 S.W. 2d 651 (1974).

Appellants further advance as error the chancellor’s denial of their request for damages against appellees Young and Albert Bassett and intervenor Petrofina because of Young’s refusal to allow Christmas to continue operations on his property. We have previously discussed the alleged refusal of Young.

The burden of proving damages is on the party claiming damages. St. Louis, Iron Mountain & Southern Railway Co. v. Saunders, 85 Ark. 111, 107 S.W. 194 (1908). Appellants seek to use the testimony of appellees’ witness, Jack Denson, to prove their damages. Denson testified that in his opinion it would cost $209,450 to return the central water injection plant to operating condition. The testimony of several witnesses indicates that the salt water injection pumping station had not been used since 1971. Young’s testimony indicates that in 1969 when Young moved on the property the problem existed. The preponderance of the evidence indicates this condition was caused by lack of maintenance by Christmas or his employees, and so there could be no resulting liability against Young, Bassett or Petrofina.

One seeking to recover damages from the alleged wrongful conduct of another must prove not only the wrongful conduct but also that the alleged wrongful conduct caused the injury. Jonesboro Coca-Cola Bottling Company v. Young, 198 Ark. 1032, 132 S.W. 2d 382 (1939). There is a lack of causal connection between the acts complained of and the damages sought by appellants.

Furthermore, there must be proper proof of the damages sustained, otherwise no damages can be awarded. The evidence of damages must be such as to allow findings from established facts and not by conjecture. Missouri & Arkansas Railway Company v. Treece, 210 Ark. 63, 194 S.W. 2d 203 (1946). Damages herein were not proved with the required degree of specificity, and appellants failed to carry the burden of showing that the alleged wrongful conduct caused the injury.

The chancellor’s decree is affirmed.

      Appellants’ brief states “. . . considering the rather small size of the Genoa-Tokio Unit in relation to the Genoa Unit, Appellants will devote no time in this Brief to the Genoa-Tokio Unit as a Unit separate and apart from the Genoa Unit.”

      The letter, dated March 27,1972, went unanswered for approximately a year.

      Bassett in conjunction with Young allegedly impeded Christmas’s operations on the Young property.

      Petrofina acquired a lease from Young on the property in October, 1973.

      On motion of appellants the court on May 9 dismissed with prejudice appellants’ counterclaim for damages against Murphy Oil Corporation.


text:
    Lloyd E. YARBROUGH et al v. ARKANSAS STATE HIGHWAY COMMISSION et al
    76-29
    539 S.W. 2d 419
    Opinion delivered July 6, 1976
    [Rehearing denied September 13, 1976.]

      Williams & Gardner, for appellants.

      Thomas B. Keys and Chris Parker, for appellees.
   Elsijane T. Roy, Justice.

The Highway Beautification Act of 1965 (23 U.S.C. § 131 et seq.) requires states to provide “effective control” of outdoor advertising devices along certain highways or suffer a reduction of 10% in the amount of federal-aid Highway funds otherwise available. Billboards along federal-aid highways can only be erected, after the passage of state-conforming legislation, in accordance with an agreement established between the state and the Secretary of Transportation.

To conform to this federal requirement, the Arkansas legislature enacted statutes authorizing the Arkansas State Highway Commission (hereafter Commission) to enter into a regulatory agreement with the Secretary of Transportation, and authorizing the Commission to establish a permit and enforcement mechanism for carrying out the provisions of the statutes. The Commission thereafter adopted a draft agreement and a series of regulations which were approved by the Secretary of Transportation January 29, 1972.

Appellants challenge the above statutes and regulations, appealing from the trial court’s determination that they are valid. Appellant Lloyd Yarbrough owns and operates a large cold storage and open market facility located on Interstate 40 just south of Clarksville, Arkansas. He is engaged in the business of buying, selling and growing fruit, vegetables and other produce. Yarbrough, pursuant to lease agreements, has placed advertising devices on lands owned by appellants Johnny Wilhelmsen and Ozark Real Estate Company.

It is uncontradicted that the signs in question were erected after the effective dates of both the federal and the state enactments; that no permits were sought as required; and that the signs are in violation of the statutory requirements. However, appellants contend the statutes are unconstitutional and seek a declaratory judgment to this effect.

Appellant Yarbrough first urges the Commission should be enjoined from ordering the signs removed because of lack of notice to him. The record reflects the required legal notice of 30 days was given by the Commission to appellant-landowners and also that appellant Yarbrough had actual notice. Furthermore, removal of the signs was deferred pending determination of the case on the merits, so we find this contention without substance.

Appellants urge there is an unlawful delegation of legislative power to the Commission in authorizing it to promulgate the regulations. We do not find this to be true. The legislature declared the purpose of the statutes, and the scope of authority delegated to the Commission is well defined. Pursuant thereto authorized regulations have been promulgated by the Commission. We find the administrative standards prescribed by the legislature have been carried out by the regulations which are valid, adequate and reasonable.

Appellants specifically contend that the legislation is violative of Article 2, § 22 of the Arkansas Constitution and that they have been denied due process and equal protection of law.

This Court recognizes Article 2, § 22 protects individual property rights, but the individual’s use and enjoyment of property is always subject to reasonable regulations in order to preserve the welfare of the public at large.

In the case of Board of Adjustment of Fayetteville v. Osage Oil & Transportation, Inc., 258 Ark. 91, 522 S.W. 2d 836 (1975), issues similar to appellees’ contentions were raised, and we held inter alia that:

The basic power of a municipality to regulate the size and location of billboards and other commercial signs has been sustained in so many jurisdictions that it would be a waste of time and effort to cite the cases. Such regulations have been upheld upon many grounds, including the promotion of traffic safety, the control of potentially hazardous structures, and the fundamental considerations of city planning and city beautification that underlie the zoning concept itself. * * *

In the case of Markham Advertising Company, Inc., et al. v. The State of Washington, et al., 73 Wash. 2d 405, 439 P. 2d 248 (1968), reh. denied 393 U.S. 1112, 89 S. Ct. 854, 21 L. Ed. 2d 813 (1969), the court held a statute regulating outdoor advertising was not an unconstitutional exercise of police power as it promoted the convenience and enjoyment of public travel, protected public investment in the highways, attracted visitors to the state and conserved the natural beauty of areas adjacent to the highways.

In General Outdoor Advertising Co. v. Dept. of Public Works, 289 Mass. 149, 193 N.E. 799 (1935), the court held that the regulation of outdoor advertising along the highway was a valid exercise of the police power, stating inter alia:

It is, ... , within the reasonable scope of the police power to preserve from destruction the scenic beauties bestowed on the Commonwealth by nature in conjunction with the promotion of safety of travel on the public ways and the protection of travellers from the intrusion of unwelcome advertising.

To the same effect see Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 200 N.E. 2d 328 (1964), and New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N.Y. 2d 151, 218 N.Y.S. 2d 640, 176 N.E. 2d 566 (1961).

In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1973), the United States Supreme Court, quoting from Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954), held that:

* * * The concept of the public welfare is broad and inclusive .... The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful, as well as healthy, spacious as well as clean, well balanced as well as carefully patroled.

At least 49 of the 50 states have enacted legislation in compliance with the Highway Beautification Act. See 71 Mich. L. Rev. 1296, 1328.

Appellants charge that Ark. Stat. Ann. §§ 76-2501 et seq. (Supp. 1975) abridge the equal protection clause by providing compensation for the owners of outdoor advertising devices, or property leased for outdoor advertising purposes, existing prior to the effective date of the statute, without providing compensation for individuals who erect such devices after that date. We find this contention without merit since the legislation became effective JaTmary 29, 1972, with the signing of the federal/state agreement and according to appellant Yarbrough’s own testimony he erected his signs in June, 1975.

The equal protection clause does not prohibit all statutory classification. In Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971), the Court stated:

* * * A classification “must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.”

The equal protection clause prohibits invidious discrimination and does not require identity of treatment. Clark v. Dwyer, 56 Wash. 2d 425, 353 P. 2d 941 (1960); Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955); and Walters v. City of St. Louis, 347 U.S. 231, 74 S. Ct. 505, 98 L. Ed. 660 (1954).

In view of the very real difference in the legal interest of the owners of prior nonconforming uses and later illegally initiated uses, the classification herein is reasonable and valid and appellants have no standing to complain.

Appellants also argue that the Commission’s regulations deny them equal protection of law because they discriminate against agricultural pursuits. The statutory scheme contemplated an exemption for those areas which were already heavily commercialized or industrialized and sought to prevent areas devoted mainly to agricultural activities or forestry land from becoming glutted by signs which would obstruct the view and detract from the beauty of the landscape. Few aesthetic features will be found in zoned or unzoned commercial or industrial areas, while rural and residential areas are more likely to include places of scenic beauty and historic interest. This classification to preserve pastoral scenery and eliminate disharmonious advertising has a substantial, fair and reasonable relation to the object of the legislation. Reed v. Reed, supra.

In recognizing the validity of different classifications in the Osage Oil case, supra, this Court said:

* * * The on-site business signs and the off-site outdoor billboard fall into different categories, are erected for different purposes, and are subject to different regulations. * * *
The outdoor advertising sign, on the other hand, is not maintainable as a matter of right; such signs have been prohibited altogether. See the extended discussion in General Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 193 N.E. 799 (1935). * * * -

Appellant’s final contention is that irreparable injury will be suffered by the peach and apple growers of Johnson County if they are denied the right to advertise and the general public will be damaged by not knowing where purchases of this sort may be made. Appellant Yarbrough testified as to the volume and value of sales for overripe peaches and the need for the “illegal” signs to advertise his produce in order to make quick sales, but he failed to give any comparison figures or to make any reasonable projection of losses causing irreparable injury. We find that he has not been denied the right to advertise, but the right has been limited by valid restrictions. Testimony at the trial indicated the possibility of “on premise” signs and use of space available near appropriate exits, but these admittedly had not been explored by appellant Yarbrough at the time of the trial. Furthermore, appellants had no vested right to capitalize on the flow of traffic over Interstate 40. In view of lack of proof on this issue of damages and our determination that the legislation herein is constitutional, appellants must also fail on this contention.

For the foregoing reasons the decree is affirmed.

      When the bill was initially presented to Congress, President Lyndon B. Johnson stated:
      In a nation of continental size, transportation is essential to the growth and prosperity of the national economy.
      But that economy, and the roads that serve it, are not ends in themselves. They are meant to serve the real needs of the people of this country. And those needs include the opportunity to touch nature and see beauty, as well as rising income and swifter travel. (71 Mich. L. Rev. 1296).

      Act 640 of 1967, amended by Act 999 of 1975 (Ark. Stat. Ann. §§ 76-2501 et seq. (Supp. 1975) ).

      The one exception, South Dakota, brought suit to compel the Secretary of Transportation to pay $3,361,546.60 of federal-aid highway funds,- withheld for noncompliance for the fiscal year 1973, to which the state otherwise would have been entitled. The court entered a summary judgment upholding the Secretary’s determination and refusing to order payment of the money to South Dakota. South Dakota v. Volpe, 353 F. Supp. 335 D.C. (1973).


author: Carleton Harris, Chief Justice.

text:
    Bill WILKENS and Helen WILKENS v. STATE of Arkansas
    CR 76-31
    538 S.W. 2d 298
    Opinion delivered July 12, 1976

      Jeff Duty, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

A jury convicted appellants, Bill and Helen Wilkens, of possession of stolen goods, and fixed punishment at 14 years for each in the Department of Correction. From the judgment so entered comes this appeal. It is asserted that the convictions are not supported by substantial evidence; that the trial court erred in excluding certain evidence, and that the prosecuting attorney was permitted to ask questions during cross-examination which constituted prejudicial error. We proceed to a discussion of these points.

Two witnesses testified with regard to the relevant elements of the offense. Rimer Clark, a Benton County deputy sheriff, stated that he searched appellants’ home pursuant to a search warrant (the validity of which is not challenged), on March 7, 1975, and found the television in what appeared to be appellants’ “living room,” connected to an electrical socket and apparently in use. The deputy removed the set and returned it to the sheriff’s office, where it was identified as property stolen from Horace Holland’s residence in Madison County on November 11, 1974.

The owner, Horace Holland, testified that his home was burglarized on November 11, 1974, with the television and several other items missing. Holland said that he had paid $550.00 for the set, two years before the theft, and that he valued it at $300.00 when it was stolen.

Appellants and one of their employees testified that the television set was brought to the premises by Jack Humphrey, a friend and former employee of the appellants, who left it there. The Wilkinses stated they were not aware that the television had been stolen, and that they did not buy it from Humphrey. The defense offered by appellants will be more fully discussed under the next point. The testimony, if believed by the jury, was sufficient to sustain the conviction.

Although the defense was permitted to offer testimony that the Wilkenses were unaware that the television was stolen, that they did not buy it, and that Wilkens later told Humphrey that he would have to remove the set because appellants were getting ready to move, the court would not permit Mrs. Wilkens to testify concerning statements by Humphrey relative to his reason for bringing the television to their premises.

Appellants then proffered the testimony of Mrs. Wilkins to the effect that Humphrey had told her that the television belonged to him and his wife; “that they had been separated and were going back together and that he wanted to leave [the television] there until the reconciliation could be arranged and so indicated to her that it was his property, he and his wife’s property.” Counsel further offered to prove by Mrs. Wilkens that Humphrey had “indicated” to her “that this property was his property,” and “that it was her impression at all times that the property belonged to Jack Humphrey.” The trial court sustained the state’s objection to this proffer, ruling that Mrs. Wilkens could not testify about what someone else had told her, and that appellants would have to produce the witness, Humphrey.

Appellants testified that a subpoena had been issued for Humphrey, but had been returned with a notation that he could not be located, and such subpoena does appear in the record. It is vigorously contended that the exclusion of this testimony deprived them of an opportunity “to explain the circumstances and reasons for the possession.”

The proffered evidence was not admissible as far as establishing the truth of the statement made, but we think, under our cases, that Mrs. Wilkens should have been permitted to testify to the facts proffered as a matter of showing her reason, and motive, in accepting the television. In Daniels v. State, 168 Ark. 1082, 272 S. W. 833, this court pointed out that it was a matter for the jury to determine the reasonableness and sufficiency of the explanation given by the accused of his possession of the stolen property, and in Stewart v. State, 214 Ark. 497, 216 S.W. 2d 873, we again mentioned that the possession of the property justified an inference that such possession was a guilty one “and may be of controlling weight unless explained by circumstances or accounted for in some other way consistent with innocence.”

Of course, it is purely a matter for the jury to determine the weight of testimony offered, but we are of the view that the trial court should have permitted Mrs. Wilkens to offer her reasons for accepting the television from Humphrey, such reasons, if believed by the jury, being consistent with innocence.

It is asserted that the court erred in permitting the prosecuting attorney to ask appellants whether they were guilty of other criminal offenses. Most of the questions asked appellants related to whether they were guilty of being in possession of certain items of stolen property, the questions specifically mentioning the property and the person from whom such property had been stolen. To each question appellants answered in the negative. A large number of such questions were asked. The rule is stated in Black v. State, 250 Ark. 604, 466 S.W. 2d 463, where we said:

“We have held that one cannot be asked if he has been indicted, or charged, or accused, of other crimes, but for the purpose of testing credibility, one may be asked if he has been convicted of a particular offense, or if he was guilty of some particular offense. The state is bound by the answer that the witness gives.”

Particular complaint is made about two questions asked; in one instance the prosecutor asked Mr. Wilkens if he was guilty of arson, which was answered, “No.” and the prosecutor then added to his question whether appellant was guilty of “burning your own home?” In another instance, the question propounded was, “Are you also guilty of the crime of being in possession of stolen property recently stolen from Mr. Bill Rollins and being in your possession one crystal earrings, one jet drop earrings, etc.”

In the first instance, it appears only that the prosecutor was endeavoring to comply with our directive that the question be specific, i.e., relate to some particular offense. The second question, containing the phrase, “being in your possession” appears improperly worded and in the nature of testimony by. the prosecutor, but there could have been no prejudice, since Mrs. Wilkens herself admitted that Ithe articles in question had been recovered from the auction house that she and her husband operated.

As previously stated, there were a number of these questions asked (seven or eight) and appellants appear to be arguing that the questions were not asked in good faith, but that the interrogation was solely for the purpose of inflaming the jury against the appellants. However, there is no showing whatsoever that the questions were not asked in good faith, and certainly there is no rule of law that limits the number of such questions, so long as the interrogation complies with our requirements, and is made in good faith. Actually, Mrs. Wilkens admitted being in possession of several of the items inquired about. The court did not err in permitting these questions.

Because of the error heretofore discussed under Point 2, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.


author: George Rose Smith, Justice.

text:
    Ralph Wayne CONOR v. STATE of Arkansas
    CR 76-40
    538 S.W. 2d 304
    Opinion delivered July 12, 1976

      Jim D. Spears and Sam Sexton Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon a charge of possession of marihuana with intent to deliver, Ralph Wayne Conor was found guilty and was sentenced to three years’ imprisonment. For reversal he argues that the trial court should have sustained a pretrial motion to suppress as evidence a quantity of marihuana and a pistol, assertedly obtained by means of an illegal search of an automobile.

At about 1:20 p.m. on March 21, 1975, a Fort Smith police officer received an anonymous telephone call. The caller said that at a certain car washing establishment there was a Lincoln Contenental automobile with Louisiana license plate 177A368. He said that the car was occupied by two armed black males and asked the officer to look into the matter. The officer passed the information on to the radio dispatcher, who broadcast it.

An hour or more later two officers in a police car spotted the automobile in question and stopped it. It was then occupied by two black males and a black female. The officers directed the three to get out of the car. As the female was alighting a pistol fell to the ground from beneath a coat in her lap. The officer informed all three that they were under arrest. The officers then searched the car, finding marihuana in an envelope on the floor and a larger quantity of marijuana in the trunk.

Under the “fruit of the poisonous tree” principle the admissibility of the evidence depends upon the validity of the warrantless search, which in turn depends upon the existence of probable cause for the warrantless search. Probable cause exists when the facts and circumstances within the arresting officers’ own knowledge or of which they have reasonably trustworthy information are sufficient to convince a reasonably cautious man that an offense has been or is being committed. Draper v. United States, 358 U.S. 307 (1959). Here the arresting officers had no personal knowledge about the commission of an offense. Of course they were entitled to act upon the collective knowledge of the police, Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969), but the radio broadcast of the tipster’s information could add nothing to its original trustworthiness.

The State concedes that the carrying of a pistol is at most a misdemeanor and is actually permitted when one is upon a journey. Ark. Stat. Ann. § 41-4501 (Repl. 1964). Thus at the outset there was no certainty that the occupants of a car from Louisiana were necessarily committing an offense by carrying a pistol. That was a circumstance to be considered.

The pivotal question, however, is the reliability of the information upon which the officers acted. The identity of the anonymous caller remains unknown. In contrasting such an informant with one who discloses his identity the Supreme Court has said: “The informant was known to [the officer] personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip.” Adams v. Williams, 407 U.S. 143 (1972). In United States v. Calovich, 392 F. Supp. 52 (W.D. Mo. 1975), the court examined the point at length and concluded that a warrantless arrest and a warrantless search cannot be justified simply because an anonymous tip proves to be accurate.

That is really all we have here. The facts verified by the officers — that is, the identification of the Lincoln car and its occupancy by two black males — did not suggest in any way whatever that an offense was being committed. The one incriminating fact, that the men were armed, was not verified until the officers had put the men under restraint by directing them to get out of the car. We do not in the least imply that in this case the officer who initiated the broadcast had not actually received an anonymous telephone call. But, unlike the situation in which the informant is known, the officer’s testimony cannot be corroborated or disputed. Hence, if this arrest must be upheld on the basis of sufficient probable cause, any officer may arrest anyone at any time and justify his action by attributing it to an anonymous telephone call. The protection afforded by the Bill of Rights is not to be so readily circumvented.

The State also argues that the arrest was permissible under the “stop and frisk” rule recognized in Terry v. Ohio, 392 U.S. 1 (1968). Here, however, the officer candidly testified that the vehicle was stopped only because of the anonymous tip. The typical stop-and-frisk situation is so fundamentally different from the halting of a moving vehicle on the basis of an anonymous telephone call that we see no reason to discuss the distinction at length.

Reversed.


author: John A. Fogleman, Justice. Frank Holt, Justice,

text:
    ARKANSAS STATE GAME AND FISH COMMISSION et al v. A. F. STANLEY et al
    75-272
    538 S.W. 2d 533
    Opinion delivered July 12, 1976

      William H. Donham, for appellants.

      McMath, Leatherrhan & Woods, for appellees.
   John A. Fogleman, Justice.

The Arkansas State Game and Fish Commission acquired some 34,000 acres of land in Arkansas and Jefferson Counties, beginning in 1948. It is known and designated as the Bayou Meto Wildlife Management Area. At the time of acquisition nearly all of the merchantable timber had been recently removed, but since that time no timber has been cut from these lands. In 1973, the Commission decided to initiate a program of “harvesting” of timber on these lands. Pursuant to the plan evolved, the Commission entered into a contract on October 18, 1973, with Alvin Yarbrough, for the cutting and removal of certain timber from a 640 acre tract constituting a part of an area of 2,080 acres designated as Compartment 2B, one of numerous such compartments in the overall plan of the Commission. On July 17, 1974, suit was filed by appellees (citizens, taxpayers and hunters) as a class action, to enjoin the Commission, its members and director and the timber contractor from cutting and removing timber under the contract. Appellees alleged that, if the contract was performed, the area involved would be destroyed as a wildlife and waterfowl habitat, and contended that the proposed action by the Commission was ultra vires, arbitrary, capricious, unreasonable and unlawful. A decree was entered on April 1, 1975, enjoining appellants from carrying out the particular timber cutting operation. This appeal comes from that decree, which was based upon the chancery court’s holding that the contract was ultra vires and that the Commission had acted arbitrarily, capriciously, unreasonably and unlawfully in entering into it, and that the making of this particular contract was an abuse of discretion. We disagree and reverse.

The parties are not in agreement about the scope ofjudicial review of actions of the Arkansas State Game and Fish Commission, which is not only an administrative agency with constitutional status but the repository of certain powers of government enumerated in Amendment 35 to the Arkansas Constitution by which it was created. As we view the matter, we need not resolve all the differences between the parties as to the powers of the Commission or the scope of judicial review. If the act was ultra vires, there is no question about the power of equity courts to restrain it. Arkansas State Game & Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W. 2d 540; Shellnut v. Arkansas State Game & Fish Comm’n, 222 Ark. 25, 258 S.W. 2d 570. If the Commission’s action is not ultra vires and was not arbitrary or capricious, unreasonable or wantonly injurious, in bad faith, or an abuse of its discretion, then the injunction must be dissolved. Arkansas State Game & Fish Comm’n v. Eubank, supra; Farris v. Arkansas State Game & Fish Comm’n, 228 Ark. 776, 310 S.W. 2d 231; Shellnut v. Arkansas State Game & Fish Comm’n, supra. The matter of unreasonableness is not directed at the question of the wisdom of the action, which we take to be outside the scope of judicial review. The Game and Fish Commission’s actions are certainly not to be judged solely on the basis of their wisdom or the lack of it any more than the actions of a city council or another administrative agency. See Patterson v. U.S., 178 F. Supp. 771 (D.C. Ark. 1959); Haynie v. City of Little Rock, 243 Ark. 86, 418 S.W. 2d 633; Am. Jur. 2d 558, Administrative Bodies and Procedure, § 207. To do so would be to impermissibly substitute the judgment of the courts for that of the agency. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041. See also, City of Batesville v. Grace, 259 Ark. 493, 534 S.W. 2d 224.

It was alleged and shown that this contract was the first entered into in the implementation of a plan to cut some of the merchantable timber on practically all of the Bayou Meto Wildlife Area. The contract provided for the sale of mixed hardwoods marked by Commission agents and employees with blue and yellow paint. It authorized the erection of mills, camps, roads and other improvements necessary in the logging and manufacturing of the timber sold in locations approved in advance by representatives of the Commission and required removal of the contractor’s structures, tools and equipment prior to the expiration of the contract. There were restrictions on the manner of utilization of the trees cut, the height of stumps and a provision for triple damages for unnecessary damage to unmarked trees, witness trees, monument and timber reproduction, to be determined by the Commission’s local officer in charge, who could also require cutting of unmarked trees unavoidably damaged and the payment of current market value therefor.

The chancellor not only found that the Commission’s actions were ultra vires and capricious and arbitrary but that they were violative of the limitations on its powers set forth in Farris and contrary to the interest of the public. These general conclusions are apparently based upon the specific fact finding of the chancellor, which was as follows:

Without detailing the evidence, it is clearly apparent that the intensity of the timber cut proposed would effectively destroy the particular 640-acre tract as a refuge for ducks. At the present time, ducks come into this area to feed on acorns, and other food. To destroy the trees to the extent set forth in the proposed cut would drastically reduce the number of ducks using the area. The evidence reflects that ducks often roost at night in open water; but during the day they fly to wooded areas, such as this 640-acre tract. They feed there, and return to their roosting area at night. It is also to be noted that this tract would be used by ducks as a refuge even more extensively if the Commission could devise a means for flooding the tract for more of the Winter period when ducks are in this area. But the evidence also clearly reflects that the present situation as to water is far better from the standpoint of ducks than would be the case if the proposed timber cut is made.
It goes almost without saying that if the proposed cut is made, it will be many years before the tract is restored to its present state with respect to “cover.” That is the principal reason why the danger is so important for this Court to realize. Unlike the situation in Eubank, supra, the ill effects will last far longer than a few days. In fact, the damage done might well be permanent, insofar as the duck population in the Bayou Meto Refuge is concerned.
Although we have emphasized the importance of providing a refuge for ducks in Bayou Meto, this wildlife management area is inhabited by other wildlife, and several witnesses testified on this point. The evidence reflects that the proposed cut would damage the refuge from the standpoint of this other wildlife.

On trial de novo, we find that the preponderance of the evidence shows that the contract was not ultra vires and that the Commission’s action was not arbitrary or capricious, or an abuse of its discretion.

In considering the question of the powers of the Commission, we must first view Constitutional Amendment 35, which, of course, is an act of the ultimate sovereign, the people of Arkansas, and is subject only to constitutional, not legislative or judicial, limitations. See Smith v. McNair, 231 Ark. 49, 328 S.W. 2d 262; Arkanaas State Game & Fish Comm’n v. Edgmon, 218 Ark. 207, 235 S.W. 2d 554; Farris v. Arkansas State Game & Fish Comm’n, 228 Ark. 776, 310 S.W. 2d 231; Shellnut v. Arkansas State Game & Fish Comm’n, supra. Pertinent provisions are:

The control, management, restoration, conservation and regulation of birds, fish, game and wildlife resources of the State, including hatcheries, sanctuaries, refuges, reservations and all property now owned, or used for said purposes and the acquisition and establishment of same, the administration of the laws now and/or hereafter pertaining thereto, shall be vested in a Commission to be known as the Arkansas State Game and Fish Commission, to consist of eight members. ***
Commissioners shall have knowledge of and interest in wildlife conservation. ***
*****
The fees, monies, or funds arising from all sources by the operation and transaction of the said Commission and from the application and administration of the laws and regulations pertaining to birds, game, fish and wildlife resources of the State and the sale or property used for said purposes shall be expended by the Commission for the control, management, restoration, conservation and regulation of the birds, fish, and wildlife resources of the State, ***
*****
Said Commission shall have the power to acquire by purchase, gifts, eminent domain, or otherwise, all property necessary, useful or convenient for the use of the Commission in the exercise of any of its duties, ***

Judicial interpretation of these powers has been rather limited, but this court has, on occasion, been called upon to review various actions and has commented upon the extent of, and limits on, the constitutional grant. We have held that the Commission has a very broad discretion in determining how wildlife shall be conserved. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, 215 Ark. 229, 219 S.W. 2d 948; Hampton v. Arkansas State Game & Fish Comm’n, 218 Ark. 757, 238 S.W. 2d 950. In Wrape, we said that the Amendment is complete within itself and that it was intended by the Amendment to either provide or leave to the Commission, methods for attaining the ends enumerated. See also, State v. Casey, 225 Ark. 149, 279 S.W. 2d 819. We have said that the powers of the Commission are broad. Arkansas State Game & Fish Comm’n v. Hornaday, 219 Ark. 184, 242 S.W. 2d 342; State v. Casey, supra.

Even though the issues were not related to the particular subject before us, the language of this court in treating rules and regulations adopted by the Commission are equally applicable to any other discretionary power vested in the Commission by the amendment. In Casey, we said:

*** Under these provisions of the amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not for revenue. ***

In Farris, we said:

*** A majority of this court has determined that the Game and Fish Commission as opposed to the Legislature, is vested with the power to make such rules and regulations as is deemed necessary to protect and conserve the wildlife resources of the state. In the exercise of its police power the Commission has determined that it should prohibit the sale of game fish from private impoundments of water. The Commission has a wide discretion within which it may determine what the public interest demands, and what measures are necessary to secure and promote such requirements. The only limitation upon this power to formulate these rules and regulations, which tend to promote the protection and conservation of the wild life resources of the state, and which tend to promote the health, peace, morals, education, good order and welfare of the public is that the rules and regulations must reasonably tend to correct some evil, and promote some interest of the commonwealth, not violative of any direct or positive mandate of the constitution. **•" The Commission, as trustee for the people of this state, has the responsibility and is charged with the duty to take whatever steps it deems necessary to promote the interest of the Game and Fish Conservation Program of this state; subject only to constitutional provisions against discrimination, and to any valid exercise of authority under the provisions of the Federal Constitution. ***

It is also important that we have in view the purposes of the Commission in acquiring and maintaining the area involved. The records of the Commission during the acquisition period revealed that the original approach was made by the initiation of an investigation of possible acquisition of a wildlife management area in the vicinity of Stuttgart, followed by authorization of the activation of a plan for establishing a wildlife management area on Bayou Meto embracing about 7,000 acres of the land.now owned. The minutes of the Commission recorded the approval of the Bayou Meto Land Acquisition as a Federal Aid Wildlife Restoration project by the United States Fish & Wildlife Service. They also recited that waterfowl, deer, squirrel, furbearing animals and turkey population were to be there protected and managed to provide maximum restoration and utilization and that other use to be made of the land was timber management. There was testimony that Regional Federal Aid documents disclosed that the land was acquired as a wildlife management area, not as a public duck shooting area, in spite of the fact that a former secretary of the Commission had described it as a public shooting ground for ducks when he testified in Hampton v. Arkansas State Game & Fish Comm’n, supra.

Testimony of James Talley, Forester for the Game and Fish Commission, indicated that the contract on the 640 acres was only the first step in a cutting cycle designed for both timber and game management on the entire tract. At a rate of 640 to 1,200 acres per year, according to a letter from Talley introduced in evidence, several years would elapse before all the timberlands were reached.

W. D. Gaines, Biologist for the Arkansas State Game & Fish Commission, compiled a habitat analysis for the Commission on Compartment 2B, which was outlined in the Commission’s wildlife forestry management plan for the Bayou Meto Wildlife Management Area. He had written a rough draft of the analysis in the summer and fall of 1973, but did not have it in the form exhibited in evidence prior to the execution of the timber contract. Gaines had a college degree in biology and additional hours of credit in forestry. He had previously been employed by U.S. Gypsum Company, a private timber company, for whom he formulated wildlife management plans for some 100,000 acres in Arkansas, Louisiana, Tennessee and Mississippi along the Mississippi River. He had been employed by the Commission for approximately five years, of which he had spent at least three and one-half years in carrying out direct management on 80,-000 acres of Commission land as District Wildlife Biologist.

In making his analysis, Gaines made field inspections of the area, both before and after the marking of trees to be cut on the 640-acre tract. He found little of the compartment in an artificial green tree reservoir, and only a small portion of the 640 acres flooded or used by migratory waterfowl. This area could not be counted on as a duck reservoir but it could be developed into a green tree reservoir if it were encompassed by a levee and deep wells and pumps were installed. In considering multi-species management, he found Compartment 2B capable of supporting 50 to 60 per cent of the wildlife it had a potential for supporting. In his analysis he attributed this to general stagnation and unproductivity of the overstory mast producing timber species which should afford, in a cyclic manner, hardwood mast in sufficient quantities to act as a supplemental food supply during late fall and winter and to the absence of sufficient ground growing food and cover. He explained the desired procedure as follows:

The best overall feasible management technique that could and should be employed in this forest is a general thinning of the growing stock to provide a release to over-burdened trees providing additional sunlight to the crowns, to provide small openings or holes in the forest creating the growth of grass, weeds, and reproduction of the forest species that will aid both in a renewable vigorous and sustained long range equilibrium of the forest as a whole and provide in the brush areas needed food and cover for most forest game animals.

Gaines found a population of one white-tailed deer for each 40 to 50 acres in the tract. He described this as extremely low for a bottomland hardwood area. This he attributed to the lack of available browse and cover because of the overstory canopy and general deterioration of the forest. Hindering factors which caused a low fall turkey population were lack of nesting cover, bugging grounds, escape cover from predators, spring and summer plants producing berries, fruit and seeds, and winter grasses and buds necessary to supplement overstory mast production. He found the compartment unsuitable for migratory or wintering waterfowl without development for flooding. He stated that a hardwood forest managed for waterfowl should provide a vigorous, healthy stand of older classes of trees, well spaced to promote the maximum amount of mast production, and interspersed with small openings containing grass, weeds, and other plants to provide food for ducks when the overstory trees did not produce. The best overall management for squirrels, according to his analysis, was to create a forest condition that has a large percentage of healthy, well-spaced trees 30 to 100 years old. From a long range point of view, scientific forest game management plans through removal or thinning of standing trees to prevent stagnation and deterioration of a mature forest would be advantageous for squirrels in spite of a short term adverse effect on the population. Gaines’ analysis as to rabbits was that population increased quickly in newly thinned areas that provided cover as well as food from plants that grow in newly created openings. Gaines reported that forest removal as a wildlife management technique is widely accepted by professional wildlife managers throughout the nation as the only practical means for large scale wildlife management, in spite of Severe attack from a portion of the public not directly involved in wildlife management, whose viewpoint he described as naive. Gaines said that fencing a temporary forest and keeping out fires would doom it to extinction. He stated his opinion that there was a necessity for diversification in publicly owned wildlife areas to fulfill the needs of the present and future population of Arkansas on a multi-species basis, i.e., deer, squirrels, turkeys, ducks. According to Gaines, different forest management practices would be utilized in other compartments, because of differing situations.

The testimony of Gaines had very strong support from that of Dr. Leslie L. Glasgow, a consultant employed by appellants after this suit was filed and described by appellees as possessed not only of an impressive academic record but of some experience in managing wildlife habitats, at least on an advisory basis. Dr. Gla: gow, a teacher of forestry and wildlife at Louisiana State University holds a bachelor’s degree in forestry, a master’s degree in wildlife conservation, a doctor’s degree in wildlife management and enough hours for a master’s degree in zoology. He had been Director of the Louisiana Wildlife and Fisheries Commission, an Assistant Secretary of the United States Department of the Interior, administering the National Parks Bureau, the United States Fish & Wildlife Service, the Bureau of Marine Resources and the Bureau of Commercial Fisheries, Waterfowl Biologist for both Louisiana and Indiana, and a wildlife consultant since 1952, mostly in the development of wildlife management plans for private individuals, state and federal governments, generally in wet lands. Dr. Glasgow is also a duck hunter and has written on related subjects for publication. He had visited the area three times between 1956 and the time he testified. He spent three and one-half hours on the ground inspecting Compartment 2B after viewing it from the air, just a month before he testified. He observed the markings on the trees made for carrying out the contract involved. He found little lesser vegetation on the forest floor.

Dr. Glasgow said that an unmanaged wilderness would not produce a sustained habitat for an optimum wildlife population that is adapted to the area, but would develop into a few old trees that dominate the site, so that the number of suitable areas for wildlife, with the exception of squirrels, decreases, as will the wildlife. He said that it was difficult to manage wildlife, but that wildlife responds to management of the habitat, and that the most practical and commonly used method is to manipulate the timber stand by use of a selective removal of trees or groups of trees, as in the Commission’s plan, to provide diversity in the stand, to permit development of other food producers such as annual weeds and other ground vegetation, to stimulate reproduction of desirable species of trees, rather than undesirable hardwoods which are shade tolerant, and to stimulate food production on remaining trees by their increased exposure to sunlight. He found that Compartment 2 B, in its existing condition, was not a good habitat for either waterfowl or other wildlife, because the vigorous trees that were dominant had been previously removed, leaving only cull species which were undesirable from a wildlife standpoint. From his examination of the Commission’s plan, he found it to be a step in the right direction toward development of an adequately diversified wildlife habitat and felt that the luxury of managing an area for a single purpose rather than for multiple species of game could no longer be afforded. Dr. Glasgow testified that the selective removal plan would improve the waterfowl habitat without question and would not destroy waterfowl coming into Arkansas and staying in the Bayou Meto Management Area.

James Talley, the Game & Fish Commission Forester, had been previously employed by the Arkansas Forestry Commission as Fire Control Assistant and Associate Forester. In the latter position he had formulated all the programs of the Arkansas Forestry Commission. He was instrumental in marking the compartmental selection for forest management of the Bayou Meto Wildlife Management Area. He said that both single tree and group selection methods had been used in Compartment 2 B, the former to remove broken, overmature, diseased and undesirable trees and the latter to let sunlight hit the forest floor for the benefit of the young tree generation in order to produce more desirable trees as well as mushrooms, berries, seeds, browse, insects and grubs for wildlife food. The area was marked under his supervision and direction.

Carl Hunter, a farm manager possessed of a degree in agriculture, with a major in biology had served as a wildlife biologist for appellants for 13 or 14 years ending in 1957. He observed that a large mature open forest which produces heavy mast crops most years produces large concentrations of waterfowl. He had gone over the area in question and estimated that 50 per cent of the timber would be cut. This he said would deteriorate the wildlife habitat, would only benefit deer, would be detrimental to some degree to other types of wildlife and would afford hardships to duck hunters through ruts left by machinery and by reason of treetops and underbrush resulting from the cutting. Potential hardships on hunters were emphasized by other witnesses.

Wayne Hampton, who served on the Game and Fish Commission from August 1960, until April 1962, visited the area and found that, on a half-acre sample there were 17 trees, 10 of which, all acorn bearing, were marked for cutting. He thought the Commission plan would destroy the Bayou Meto Area as a duck habitat. A county surveyor testified that the proposed timber cut was heavy and erratic. A sawmill operator testified that cutting operations would result in damaging 20 per cent of the remaining trees.

A number of witnesses, whose only qualification was that they were duck hunters, were permitted, in spite of appellants’ objections, to give opinion evidence, because, according to the chancellor, all duck hunters consider themselves experts. We can accord little weight to this testimony. There were those who had cut timber, or had seen timber removed, from lands and found that a habitat for ducks had been destroyed to the detriment of duck hunting. Some had found that deer hunting had not been affected and that in certain areas squirrel, coon, and turkey could be hunted. Some of these joined in the opinion that, if the program were carried on, the area would be destroyed as a duck habitat. Most of the testimony on behalf of appellees was directed toward the effect of the plan on duck hunting in the wildlife area and in the general vicinity. Many were concerned with the number of mast producing and den trees marked for cutting. In determining the questions presented here, we must remember that the Commission’s duties and its right to determine how they are to be performed, i.e., how wildlife is to be conserved, are not to be measured by mere doubt-creating suggestions. W. R. Wrape Stave Co. v. Arkansas State Game & Fish Comm’n, supra.

The strongest evidence favoring appellees was a publication entitled “Disappearing Wetlands in Eastern Arkansas” written by Trusten Holder, who had retired in 1969 after 29 years’ service with the Game & Fish Commission and who is considered an authority on the subject on which he wrote. Gaines disagreed with some of Holder’s statements. Holder was not available for cross-examination. His publication contains the following statement:

Contrary to popular opinion an area does not have to be managed. In fact, most of the real benefits to wildlife and to the general public can be received just by buying a wooded tract and keeping it from being cleared.

Dr. Glasgow specifically expressed his disagreement with this statement in spite of his great respect for the author. This witness stated that selective cutting and followup of wildlife stand improvement was an accepted and approved practice in many areas of the United States.

When we view the whole record, it seems clear to us that the action of the Game & Fish Commission was not ultra vires or unlawful. It was simply an exercise of discretion of that body in the “control, management, restoration, conservation . . . of . . . game and wildlife resources of the State, . . . sanctuaries, refuges, reservations ... ” It is also clear to us that the Commission has not acted arbitrarily and capriciously. To act arbitrarily means to act in a manner decisive but unreasoned, or arising from an unrestrained exercise of the will, caprice of personal preference, based on random or convenient selection or choice rather than on reason or nature and to act capriciously means to act without being guided by steady judgment or purpose. City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921; City of North Little Rock v. Harble, 239 Ark. 1007, 395 S.W. 2d 751. However unwise or inexpedient the Commission’s decision may be or however wrong it may turn out to be, there is no evidence that it was unreasoned or without steady judgment or purpose. There may well be a difference of opinion about the propriety of the particular procedure adopted to accomplish the basic purposes of Amendment 35, but it certainly cannot be said that there is not respectable authority supportive of the approach being taken. In considering the matter we must remember that the Commission is composed of members having knowledge of and interest in wildlife conservation.

Nor can we say that the Commission abused its discretion. Here again, we must defer to the knowledge and interest of the Commission and would have to say that there was no reasonable basis for their decision before we could say that there was an abuse. This we cannot do. It is urged that the Bayour Meto Wildlife Management Area was acquired and dedicated primarily, if not solely, for a duck refuge. There is clear evidence that, even at the beginning of the property acquisition, other purposes were contemplated, in spite of the testimony of the then executive secretary of the Commission, in Hampton v. Arkansas State Game & Fish Comm’n, supra, that the primary purpose for the acquisition was for duck Hunting and shooting. Even if that were the case, there is nothing whatever to limit the discretion of the Commission to change the primary use of all or any part of the sanctuary or refuge or to devote the property to other uses, so long as they are within the scope of the purposes enumerated in Amendment 35. Decisions in this regard are policy matters vested entirely in the Commission, so long as it acts within limitations which have been imposed on the exercise of its powers. Evidence of abuse of this discretion should be so clear as to be virtually beyond argument before the courts should declare it so. The constitutional amendment left to the Commission the adoption of methods to reach the desired ends. In this respect we must also say that the Commission is substituted for the General Assembly in determining what is in the public interest in the matter of wildlife conservation. Farris v. Arkansas State Game & Fish Comm’n, supra. At least when the matter is debatable, it would be beyond our powers to substitute our judgment for theirs. See City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697.

The decree is reversed, the injunction dissolved and the case dismissed.

The Chief Justice and Justices Holt and Roy dissent.

Frank Holt, Justice,

dissenting. I must respectfully dissent. It is true that the Commission has broad discretion in matters concerning the conservation of wildlife. Hampton v. Ark. State Game & Fish Comm., 218 Ark. 757, 238 S.W. 2d 950 (1951). However, it is well established that the power of the Commission is subject to judicial review and restraint by the courts where, according to the evidence, it exceeds that power. Shellnut v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S.W. 2d 570 (1953); Ark. State Game & Fish Comm. v. Eubank and Johnson, 256 Ark. 930, 512 S.W. 2d 540 (1974); and Farris v. Ark. State Game & Fish Comm., 228 Ark. 776, 310 S.W. 2d 231 (1958).

In the case at bar it appears that the majority relies primarily upon the testimony of appellants’ experts in determining that the chancellor’s finding is against the preponderance of the evidence. The appellees also presented expert witnesses. Mr. Hunter, who had worked as a wildlife biologist for appellant for approximately 14 years, testified that since 1957 he has managed the Wing Mead Farms consisting of approximately 7,000 acres with about 2,000 of these acres in hardwood timber and duck reservoirs. There has been no cutting permitted in this area in at least 35 years and possibly 50 years. His management of the Wing Mead Farms has been so successful that Dr. Glasgow, one of appellants’ principal witnesses, brought one of his wildlife classes from Louisiana State University on a field trip to observe the Wing Mead Farms. According to Mr. Hunter, an uncut forest produces large concentrations of water fowl. He had observed the area in question and testified that approximately 50% of the timber would be cut according to appellants’ proposal. He further testified that, as a result of the proposed cut, “I think it would deteriorate the wildlife habitat.” Appellants’ selective cutting would be beneficial only to deer hunting and would be detrimental to other types of wildlife including duck hunting.

The appellees adduced as evidence a publication, “Disappearing Wetlands in Eastern Arkansas,” written by Mr. Trusten Holder. Mr. Holder retired in 1969 after 29 years’ service with the appellant Commission. He is an acknowledged expert and an authority on the subject of his article. In his publication he wrote:

Contrary to popular opinion an area does not have to be managed. In fact, most of the real benefits to wildlife and to the general public can be received just by buying a wooded tract and keeping it from being cleared.

Wayne Hampton, a witness for the appellees, was of the view that the appellants’ proposed cut would “ruin” the Bayou Meto area as a duck habitat. It is significant that he had once served as a commissioner on the appellant Commission. He is a longtime resident of the general area. According to him, it appeared that approximately~one-half of the trees would be destroyed. Another witness, who is director of the American Duck Hunters Association, testified that he had seen the results of a similar cut on other areas managed by appellant Commission. He described the cut: “I would call it a total destruction of any duck woods that I have ever seen in my life. I was never so amazed as to what we were led to believe that had happened in this area.”

The majority summarily rejects and accords little weight to the testimony of duck hunters, most of whom were local landowners or residents. Based upon many years of experience, they were knowledgeable about the results of appellants’ proposed timber cutting. From their observation of the cutting and removing of timber, such as that proposed by appellants, it would be detrimental to and destroy the area as a duck habitat.

After review of all the evidence, I am unable to say that the chancellor’s finding is clearly against the preponderance of the evidence and I would affirm.

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


author: John A. Fogleman, Justice.

text:
    Jack FREEZE, Mayor, et al v. Buck JONES and Raybon L. HARVEL
    75-386
    539 S.W. 2d 425
    Opinion delivered July 12, 1976
    [Rehearing denied September 13, 1976.]

      Dailey, West, Core & Coffman, for appellants.

      Franklin Wilder, for appellees.
   John A. Fogleman, Justice.

On December 23, 1974, the Board of Directors of the City of Fort Smith adopted Ordinance 3224 vacating and abandoning a block of Birnie Avenue between Midland Boulevard and North 32nd Street. The city’s action was initiated by the petition of Safeway Stores, Inc., the owner of all the abutting property on both sides of Birnie Avenue between Midland and North 32nd Street. It was filed October 23, 1974, and was followed by a public hearing on December 3, 1974, at which presentations about the closing were made by the city’s Director of Planning and by the attorney for the petitioners. No one spoke in opposition to the proposed action, although notice was published twice in November.

The portion of the street affected was dedicated as Prairie Avenue by the filing of a plat of Kelley’s Addition to Fort Smith in 1906. Birnie ends at Midland on the west and Albert Pike on the east. Pryor Avenue is one block, and Kelley Highway, two blocks, south of Birnie. Wirsing is one block, and Johnson, two blocks, north. The street right-of-way was 50 feet wide but the paved portion was only 20 feet wide. There was a dip in the street between Midland and North 32nd where a branch or drainage ditch crossed it. After heavy rains, Birnie was rendered impassable for a time. Continued washing made maintenance difficult on this part of the street.

Midland Boulevard is one of the main traffic arteries in Fort Smith. It consists of three lanes of traffic in each direction, divided by a median. It carries 16,000 vehicles per day. It runs diagonally in a northeasterly-southwesterly direction. Albert Pike is a heavily travelled street connecting with Midland, north of Birnie. North 32nd Street between Kelley Highway and Spradling are also arterial streets. There are no residential uses of the property abutting the portion of Birnie vacated.

Immediately after the petition was filed, Safeway Stores conveyed the property on both sides of Birnie to Wal-Mart Properties, Inc., who then planned to build a shopping center on it.. The latter corporation promptly conveyed the south one-half of the right-of-way to the City of Fort Smith, and it will be used for utilities. No one questions the fact that the closing of the street was critical to the shopping center plans, as it enables the abutting property owner to build a shopping center on one side and a parking lot on the other without a street intervening.

In the ordinance, the Board of Directors of the city specifically found that the right-of-way was not required for corporate purposes, that no public inconvenience would result from the closing, that the owners (who were the petitioners) had consented to the abandonment, and that the public interest and welfare would not be adversely affected.

On December 22, 1974, appellee Buck Jones, petitioned the Chancery Court of Sebastian County to enjoin the closing of the street, alleging that the ordinance violated Ark. Stat. Ann. § 19-3825 (Repl. 1968) and that Brooksher v. Jones, 238 Ark. 1005, 386 S. W. 2d 253 barred the closing of this portion of the street, as res judicata. Appellee Harvel was added as a plaintiff by an amended petition. Another amendment filed on the day before the trial alleged that the action of the city in adopting the ordinance was arbitrary, capricious, unreasonable, not for any public purpose, and in violation of public safety. The decree from which this appeal was taken declared the ordinance null and void and enjoined the city from carrying it into effect. On trial de novo, we reverse.

We first quickly dispose of appellees’ argument that this case is governed by our decision in Brooksher v. Jones, supra, in which an ordinance closing the same portion of Birnie Avenue was held void. The chancery court correctly rejected appellees’ plea of res judicata, even if the parties are considered as identical. In Brooksher, we expressly disavowed any intention to hold that the city could not vacate the street under Ark. Stat. Ann. § 19-2304 (Repl. 1968) under any circumstances. We restricted the holding to the undisputed facts then before the court. The critical distinction is that as we have twice previously pointed out, there was no finding by the city governing board, or other evidence, that this portion of Birnie Avenue was not required for corporate purposes, as there was here. Kemp v. Simmons, 244 Ark. 1052, 428 S.W. 2d 59; City of Little Rock v. Linn, 245 Ark. 260, 432 S.W. 2d 455. Evidence in the present case shows that traffic on Birnie Avenue has declined since the trial in Brooksher. The only evidence on the subject then was that closing of this portion of the street would work a hardship on many people. The preponderance of the evidence is to the contrary here. So Brooksher is not controlling here, either as res judicata or binding precedent.

We just as quickly dispose of appellees’ contention that the power of the city to close the street under Ark. Stat. Ann. § 19-2304 was limited by § 19-3825. The very words of the opinion in Brooksher, supra, relied upon by appelles so strongly as res judicata, clearly indicate the contrary. The same indication is also clearly implicit in our decisions in Stephens v. City of Springdale, 233 Ark. 865, 350 S.W. 2d 182; Roberts v. Pace, 230 Ark. 280, 322 S.W. 2d 75; Risser v. City of Little Rock, 225 Ark. 318, 281 S.W. 2d 949, cert. den. 350 U.S. 965; and Cernauskas v. Fletcher, 211 Ark. 678, 201 S.W. 2d 999. See also City of Little Rock v. Linn, supra.

The city challenged the standing of appellees to bring the action. Appellee Harvel had resided for 30 years at 2620 North 37th Street in Prairie View Addition, which is at the corner óf North 37th Street and Birnie Avenue. This is five blocks from the strip closed by the ordinance. Appellee Jones’ property is at 4817 South V Street, far removed from Birnie Avenue. Jones also has some interest in a tract at 3620 North 6th Street, which is also quite distant from the strip of street being vacated.

It is well settled that appelles, as citizens and taxpayers did not have standing to challenge the city’s action. City of Little Rock v. Linn, supra. Relief is available to those who suffer special and peculiar injury or damage, but this special injury or damage must be such as is not common to the public in general and not just a matter of general public inconvenience.

No attempt was ever made to show that appellee Jones had suffered special damages which would give him standing to challenge the street closing. Harvel attempted to show special damage by reason of diminished fire protection and inconvenience of travel. He based his contention about fire protection upon the location of fire plugs and additional turns required at square corners. He had been a District Fire Chief in Fort Smith before his retirement. He said that the number one response company for his area would come south on Albert Pike and west on Birnie to his property and not use the closed portion at all. The number two response company is west and south of his property and according to his information would proceed to Kelley Highway, on Kelley to Midland, thence left on Midland, on Midland to Birnie and then left on Birnie. He said that square turns at Kelley and North 32nd and at Pryor and North 32nd would be more difficult for fire equipment than the angle turn to the right at Midland and Birnie. Harvel said that if Birnie were closed, he would have to drive to Kelley Avenue to enter Midland when he travelled downtown. He could also travel north on North 32 nd Street to enter Midland. At each of these alternate intersections there is a traffic light, but there is none at the west end of Birnie. Harvel said he would have to make an extra turn in travelling either alternate route and he objected to having to wait at traffic lights before entering Midland. He also testified that it would be more difficult for ambulances and the police to locate and reach his residence.

Harvel had retired in 1971 and admitted that he did not know the present plans of the fire department for responses to his neighborhood. The Fort Smith Fire Chief said that he had never used Birnie Avenue as a response route and had never heard of its being used as a response route in his 33 years in the department, that there was no need for fire response vehicles to use Birnie between Midland and North 32nd Street, that the equipment approaching Harvel’s property would leave Midland at Kelley Highway and proceed on North 32nd Street to Birnie, and that the square corners could be turned without much difficulty. He had been consulted about the effect of the closing by the Planning Director. Some persons who used streets in the area testified that it was easier to enter Midland at intersections controlled by traffic lights than at Birnie where there was no light, and that many people who travelled Birnie actually entered Midland by first going south to Kelley or north two blocks to Johnson, which intersection with Midland was also light-controlled. There was testimony by the city’s Director of Planning that it is more desirable that traffic be funnelled to an arterial street via a collector street or another arterial street, rather than by way of a local street, such as Birnie. The Director of Planning and Transportation for the Western Arkansas Planning and Development District testified that it was extremely difficult to enter Midland from Birnie because of the heavy Midland traffic and the difficulty of executing a right hand turn from Birnie because of the angle of intersection.

Appellees are in no better position than were the protestants in Linn and Risser. Appellees attempt to distinguish City of Little Rock v. Linn, supra, on the basis that the vacation of the strefet in that case was under an exception to Ark. Stat. Ann. § 19-3825. This is an incorrect reading of Linn. In that case, we held the closing valid under both §§ 19-2304 and 19-3825, the petition for closing having been under both sections.

Assuming that a citizen and taxpayer has standing to attack an ultra vires act of the city, appellees have failed to show that the ordinance was ultra vires. It is true that the city governing board cannot sell, give away or exchange the streets of a city without the consent of abutting owners or without statutory authority and that any attempt to do so is ultra vires. Beebe v. City of Little Rock, 68 Ark. 39, 56 S.W. 791. But we do not consider that there has been any sale, exchange or gift of the city streets in this case. The abutting owners consented and the city had statutory authority to vacate the street when it was no longer needed for corporate purposes under Ark. Stat. Ann. § 19-2304. In making this determination, the city’s governing board had a very wide latitude of discretion. City of Little Rock v. Linn, supra. We cannot say that this discretion was so abused under the circumstances as to make the ordinance involved ultra vires. While we held in Risser that a contract for the permanent abandonment of city streets would be ultra vires, there is no evidence of any contract in this case. A conveyance to the only abutting owner is not prohibited. Barbee v. Carpenter, 223 Ark. 660, 267 S.W. 2d 768. Nor is a vacation of a street for the benefit of the abutting owner if the street is not needed for corporate purposes. Kansas City Southern Ry. Co. v. City of Ft. Smith, 228 Ark. 625, 309 S.W. 2d 315; City of Little Rock v. Linn, supra.

Appellees, however, attempt to extend the rule of Risser by their contention that, as beneficiaries of the public trust under which the streets were held by the city, they are entitled to attack the action as a gift of trust property without consideration and in violation of Art. 5 § 21 of the Arkansas Constitution. Mr. Harvel testified that he did not see why the city could not take bids on the portion of the street closed and sell it. It is vigorously argued on his behalf that this should be done and, because it was not done, appellees have standing to challenge the city action. It is also argued that the property should have been devoted to other corporate uses.

This argument is based upon a misconception of the character of the title of the city to the street right-of-way and of its corporate powers. Appellees argue that under Ark. Stat. Ann. § 19-2304, the city could use the lands for other public or municipal objects or purposes, or sell it and use the proceeds for such purposes. Appellees rely heavily upon such cases as Goodman v. Powell, 210 Ark. 963, 198 S.W. 2d 199, which only goes to the question of equity jurisdiction in a case involving a public square. It does not support their argument as to standing in this case, however, involving streets dedicated by the filing of a plat and accepted by the city. The property which can be so used or sold is only lands which have been acquired by or donated to the city. The ownership of the fee in the Birnie Avenue right-of-way remained in the abutting owners together with all rights not inconsistent with the public use to which the property was dedicated. Lincoln Hotel Co. v. McGehee, 181 Ark. 1117, 29 S.W. 2d 668. Taylor v. Armstrong, 24 Ark. 102; Town of Hoxie v. Gibson, 150 Ark. 432, 234 S.W. 490. When a city vacates a street in which it has only an easement, it has no further rights in the property. Kansas City Southern Ry. Co. v. City of Ft. Smith, supra. It cannot be sold by the city but passes to the abutting owners. Beebe v. City of Little Rock, supra; Arkansas River Packet Co. v. Sorrels, 50 Ark. 466, 8 S.W. 683; Town of Hoxie v. Gibson, supra. Neither can the city devote the street to another public use even though the legislature may have attempted to authorize such action, because to do so would impose an additional servitude upon the land in violation of the rights of the abutting owner, who would have the right to enjoin such use. Lincoln v. McGehee Hotel Co., supra; Arkansas River Packet Co. v. Sorrels, supra; City of Osceola v. Haynie, 147 Ark. 290, 227 S.W. 407. But a non-abutting owner, such as both appellees, could not enjoin the action, unless he could show special and peculiar injury not suffered in common with the general public. Arkansas River Packet Co. v. Sorrels, supra. See also, State v. City of Marianna, 183 Ark. 927, 39 S.W. 2d 301. Cf. Campbell v. Ford, 244 Ark. 1141, 428 S.W. 2d 262; Adams v. Merchants & Planters Bank & Trust Co., 226 Ark. 88, 288 S.W. 2d 35.

Since there is no theory upon which appellees had standing to challenge the ordinance in question, the decree is reversed and the cause dismissed.

      In Brooksher, the only finding as to the basis for the action of the City Commission was that it was for the purpose of allowing Safeway Stores, Inc. to erect buildings on the vacated portion of the street.