author: Carleton Harris, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. William C. BOWERS et ux
    5-5147
    451 S. W. 2d 728
    Opinion delivered March 30, 1970

      Thomas B. Keys, Philip N. Gowen and Hubert Graves, for appellant.

      Penix ir Penix and Douglas Bradley, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. The Arkansas State Highway Commission acquired .06 acres from a total ownership of 1.6 acres, the property belonging to William C. Bowers, and imposed a control of access between the acquisition area and the remainder. On trial, Mr. Lynn S. Van Natta, a real estate appraiser, testified on behalf of Bowers and wife, appellees herein, that the before value of the property was $62,000.00, the after value, $51,-560.00, and that the property had thus been damaged in the amount of $10,440.00. The jury returned a verdict of $5,000.00, and from the judgment so entered, appellant brings this appeal. Only one point is alleged for reversal, viz:

“The court erred in refusing to strike the testimony of Lynn S. Van Natta, witness for appellee, as to damages, or a decrease in market value, equal to 10% of the value the witness placed on a house before the taking, which damages, or decrease in market value, was based on an increase in the flow of traffic.”

We do not agree with this contention. Van Natta, in reaching his conclusions, testified that he considered the loss of access as an element of damage. This, of course, is permissible. Arkansas State Highway Commission v. Kesner, 239 Ark. 276, 388 S. W. 2d 905. Though admittedly, Bowers can still enter his property at the northernmost driveway, it was contended that the southernmost driveway would be difficult to enter, because of a divider which would be placed in that vicinity. Van Natta testified that he understood the divider would extend down to the southernmost driveway. The record then reflects the following testimony:

“Q. Allright, now, then, will that in your opinion be a detriment or hazard to traffic attempting to use that southernmost driveway?”
Counsel for Hwy. Dept.: “Your honor, this is clearly not a proper question. The Highway Department is certainly not under the duty to keep traffic flowing by to increase or decrease traffic.”
Court: “The objection will be sustained.”
* * *
“Q. Start over. Assuming this island is built in Highway 39, which is a traffic divider beginning somewhere at the south end and coming up in Highway 39 toward the north to a point about equal to — about even with their controlled access area here on the right of way, which is roughly the south side of the south driveway; assuming that, will that affect the resale value of this residential area property?
“A. I would consider it would, yes.
“Q. Now, then, we have already gone over — may I assume it would also very definitely affect access to this development area you have already testified about?
“A. Very much so.
“Q. All right. These, of course, are matters you have taken into consideration in arriving at your after values?
“A. Correct.”

On cross-examination, the record reveals the following:

“Q. Mr. Van Natta, I want the jury to understand this. I ask you the third time, I guess, before the Highway Department acquired the .06 of an acre, Dr. and Mrs. Bowers had developed access to that house, didn’t they?
“A. Yes.
“Q. All right. After the taking considering the construction in place, do they not still have that same developed access to the property?
“A. The actual physical pavement is there.
“Q. It is access, isn’t it? The driveway is still there, isn’t it?
“A. That’s right.
“Q. There is no fence in front of the driveway?
"A. No fence in front of the driveway, that’s right, but you have other considerations to take into consideration.
“Q. Just a minute. This is where we took off the land at the south end?
“A. You have the south one bringing in an additional amount of traffic, going to go north past that house and coming around there. There is a rather sharp curve. Therefore, you are going to have a difficult situation.
“Q. How much damage—
“A. Will you let me finish my answer?
“Q. Go ahead.
“A. With the additional traffic, and coming from the direction it will be coming, it makes it much more hazardous to attempt to turn in or out of the south lane of that particular driveway.
“Q. How much damage did you attribute to this?
“A. To that particular lane, most of the ten per cent to that.”
Counsel for Hwy. Dept.: “I move to strike that testimony, your honor. That is not proper.”
Court: “Motion denied.”
Counsel for Hwy. Dept.: “Save our exception.”

It will be noted that, on direct examination, the court sustained the objection relative to increased traffic. Appellee Bowers, who had a dental office in the same building that constituted the home, was endeavoring to show damages that had been suffered, peculiar to appellees, because of the location of the divider, a loss of access being contended. The merits of such a contention are discussed fully in Arkansas State Highway Commission v. Kesner, supra. But, if we should find that a portion of Van Natta’s damage testimony was based on an erroneous premise or noncompensable item, we could not sustain appellant’s motion. Without question, some of the witness’ testimony was pertinent, admissible, and proper for jury consideration.

The motion to strike was ambiguous. “I move to stike that testimony, your honor. That is not proper.” To what testimony do the italicized words apply? There are seven questions and answers (not counting one interruption); as stated, some answers were admissible; some possibly were not. Did the objection refer to the last four answers, the last two, the final answer, or the entire seven?

We have said that a motion to exclude all of the testimony of a witness is properly overruled if a part of it is competent. Arkansas Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802. Since it is not at all clear to which testimony counsel was referring when he moved to strike, and since at least some of the evidence was admissible, the trial court did not err in its refusal to grant the motion.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Sandra STANDRIDGE v. Larry STANDRIDGE
    5-5201
    451 S. W. 2d 726
    Opinion delivered March 30, 1970

      Shaw & Shaw, for appellant.

      Shaver, Tackett, Young ir Patton, for appellee.
   George Rose Smith, Justice.

This is a child custody case. In the original decree, entered on August 16, 1968, the chancellor awarded the divorce to the husband on the ground of desertion, but the wife was awarded the custody of the couple’s only child, Kathleen, who was then not quite two years old. Child support was fixed at $50 a month.

About six months later the child’s father, who had remarried, filed the present petition for a change of custody. The petition was contested by the mother and by the latter’s mother and stepfather, who intervened in the case and asked that they be given the custody of the child if the chancellor found a change to be necessary. After a hearing at which the chancellor had an opportunity to see and hear all the interested persons, the chancellor set aside his original order and awarded custody of the child to the father, with specified rights of visitation in the mother. The question here is whether the court’s order is against the weight of the evidence.

After the divorce the appellant, Mrs. Standridge, was beset by difficulties that were, unfortunately, of her own making. Mrs. Standridge had been trained as a practical nurse. At first she supported herself, Kathleen, and a daughter by an earlier marriage, by following that occupation. Later on, however, she took her children to Dallas, Texas, and temporarily made her home with three other former residents of Polk county. At that time she became involved with a married man of questionable character. Within a short time Mrs. Standridge, along with that man and two others, was arrested for taking part in a scheme, which apparently had been going on for some time, by which roofing shingles were being stolen from a contractor. After a jail confinement that lasted for 86 days Mrs. Standridge pleaded guilty and was put on probation, the exact sentence not being shown by the record. Mrs. Standridge then returned to her mother and stepfather’s home at Cove, in Polk county. At the time of the trial she was still on probation and was employed as a nurse in Mena.

On the day after Mrs. Standridge was put in jail at Dallas an acquaintance from Arkansas picked up the two children and brought them back to Polk county. There the county court vested Kathleen’s temporary custody in the child’s paternal grandmother, Marie Standridge, who was living at Mena. That was the situation at the time of the hearing which resulted in the order by which the right of custody was vested in the child’s father, the appellee. There is no serious objection to the conditions and environment either in Standridge’s home near Texarkana or in Mrs. Standridge’s home at Cove. At the time of the trial Standridge and his second wife were expecting a child; so Kathleen would have a half brother or half sister at either place.

When an infant of tender years is involved the law tends to favor the mother in controversies such as this one. Even so, and despite the sympathy that we naturally have for the appellant, we cannot say with confidence that the chancellor was wrong in deciding the case as he did. In reaching his conclusion the chancellor found that the mother had not properly cared for the child and had not convinced the court that she would properly care for the child in the future.

Precedents are of scant value in cases of this kind, but there are points of similarity between this appeal and that which we considered in Holt v. Taylor, 242 Ark. 292, 413 S. W. 2d 52 (1967). This language from that opinion is especially persuasive: “For a court to choose, in a custody case, between the mother and father, the respective personalities of the parents are vital. It is in this realm that personal observation is of inestimable value.” In the case at bar the arguments for and against a continuation of the mother’s custody are evidently so closely balanced that the case might well have been decided either way in the trial court. When we contrast our mere reading of the printed page with the infinitely better opportunity that the chancellor had for reaching a wise decision, we are unwilling to substitute our judgment for his.

Affirmed.


author: Lyle Brown, Justice.

text:
    Leon SATTERFIELD v. STATE of Arkansas
    5481
    451 S. W. 2d 730
    Opinion delivered March 30, 1970

      Bon McCourtney ir Associates; By: Troy L. Henry, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Lyle Brown, Justice.

This case was before our court in Satterfield v. State, 245 Ark. 337, 432 S. W. 2d 472 (1968), wherein we reversed a conviction on a charge of arson. On retrial Satterfield received the same punishment as on the first trial. The action of the trial court in instructing the jury on the statutory minimum and maximum punishment; in permitting the introduction of a transcript of testimony of two witnesses taken at the first trial and who were not present for the second trial; and in allowing the case to be submitted to the jury — those are the points upon which appellant seeks reversal.

Appellant was convicted on the testimony of three young companions who testified as to remarks made by appellant which could be interpreted to mean that he intended to burn the barn; they further testified that they were in the car with him when he drove to the farm and they saw the blaze originate after appellant made a trip to the barn; and that appellant returned later and watched the barn and its contents of dry hay burn. The owner testified that the barn was not wired for electricity and that the materials of which it was constructed were not combustible; and also that the portion in which the hay was stored was not boxed in. We will not further detail the testimony, referring interested parties to the facts set forth in the first opinion. Such other facts as are necessary to explicate this case will be detailed as we presently set out and discuss the three points for reversal.

Point I. Appellant having received a one-year sentence at the first trial, it was error to submit to the jury a possible sentence exceeding one year. The trial court instructed the jury that it could fix punishment at between one and ten years as provided by Ark. Stat. Ann. § 41-501 (Repl. 1964). Appellant objected and urged, on constitutional grounds, that when .an accused obtains a reversal and new trial he cannot, on the second trial, receive a sentence greater than that fixed at the first trial. That same issue was raised in the recent case of Fuller and Walton v. State, (April 21, 1969), 439 S. W. 2d 801. (Certiorari denied November 17, 1969, 60 S. Ct. Reporter 260.) There we said:

We hold that under the law of Arkansas a new trial granted in a criminal case for error committed in the first trial constitutes a new trial as to penalty imposed by the verdict, as well as to guilt or innocence where the verdict in the second trial is for the same degree of crime as the first verdict, and the penalty assessed by the second verdict is of the same nature and within the statutory limitations for the degree of the crime involved.

Appellant argues that Fuller has been overruled by the later case of North Carolina v. Pearce, 395 U. S. 711 (1969), and Simpson v. Rice, consolidated with Pearce. Pearce and Rice were sentenced after retrial in the States of North Carolina and Alabama, respectively. In those States the court sets the punishment after a verdict of guilty is returned by the jury. In the cited cases the court held, among other things, that the equal protection clause of the Fourteenth Amendment does not impose an absolute bar to a more severe sentence upon reconviction, nor does the double jeopardy clause of the Fifth Amendment impose such a bar. It was held that the due process clause requires that “vindictiveness against the defendant for having successfully attacked his first conviction play no part in the sentence he receives after a new trial.” To insure against .that motive a sentencing judge imposing a more severe sentence after the second trial must point up the factual data upon which the increased sentence is based.

For yet another reason appellant’s Point I is without merit. That is because he received identical sentences in both trials, being the minimum punishment, hence there was no prejudice. Shaddox v. State, 244 Ark. 747, 427 S. W. 2d 198 (1968).

Point II. A good faith effort was not made to obtain the presence of two witnesses who testified at the first trial; it was therefore error to permit the reading of their prior testimony to the jury in the second trial.

Two State’s witnesses, Jerry Turner and Larry Dunn, were reportedly out of the State on the date of the second trial. Over appellant’s objection the court permitted the introduction of their testimony given at the first trial.

It has long been the rule in our State, as well as in many other jurisdictions, that the right of confrontation by a witness may be dispensed with when that witness is unavailable and has given testimony in a previous proceeding against the same defendant, provided the witness was subject to cross-examination in the first proceeding by that defendant. The most common excuse for the exception heretofore recognized has been the absence of the witness from the trial court’s jurisdiction; regarding that excuse the Supreme Court recently made this pronouncement:

Whatever may have been the accuracy of that theory at one time, it is clear that at the present time increased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law. Barber v. Page, Warden, 390 U. S. 719 (1968).

In Pointer v. Texas, 380 U. S. 400 (1964), it was held that the right of confrontation granted by the Sixth Amendment is obligatory on the states through the Fourteenth Amendment.

Reverting to the holding in Barber, it was there held that a witness is not “unavailable” for the purpose of excusing the confrontation requirement “unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial.” Barber also says the right to confrontation is basically a trial right and “includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” See Britton v. Maryland, 298 F. Supp. 641 (1969).

We have combed the record in this case and have concluded that the efforts of the State to obtain the presence of witness Larry Dunn were far too feeble to constitute “good faith effort.” Early in August 1969, a subpoena was issued for Dunn to appear in court on August 15, a pretrial date. (It seems to be the custom to subpoena all witnesses for the pretrial date, at which time the cases are set for a day certain and the witnesses then and there re-subpoenaed for the later date.) The sheriff was unable to subpoena Dunn because he could not find him in Fulton County. At pretrial the case was set for August 26. Four days after pretrial a subpoena was issued for Dunn for the trial date. Again the sheriff was unable to locate Dunn, and upon inquiry learned that he was in Kentucky in attendance at a trade school. Upon ascertaining that Dunn was in another state, the sheriff, according to his own testimony, abandoned any further effort to obtain the witness. He testified that he did not inquire as to the particular town in Kentucky in which the school was located.

It is apparent from the circumstances that the State was put on notice before the pretrial date that Dunn was not in the jurisdiction; yet no effort was made to ascertain his whereabouts until a few days before the actual trial date. It was shown that Dunn’s people lived in the county, and since he was attending school, as opposed to being on a transient trip, it is just as logical that his address in Kentucky could have been obtained by simple inquiry. In fact the State actually was in contact with the Dunn family because Pat Dunn, Larry’s sister, was a witness for the State. Incidentally, she testified that Larry was not aware of the new trial. Also, and as a very practical matter, a telephone call to Dunn could have been fruitful in obtaining his presence even at the late date on which it was discovered he was in Kentucky. Finally, we would note that earlier discovery of Dunn’s whereabouts would have made it practical to have instituted proceedings under Ark, Stat. Ann. § 43-2006 (Repl. 1964), being part of a uniform act for obtaining witnesses from without the State.

We point out a particular reason why Dunn’s presence was important. On the first appeal we held that Dunn was a possible accomplice and that the jury should have been so instructed. That possible status made it particularly necessary that the jury be afforded the opportunity to observe his demeanor.

It must be remembered that the burden was on the State to justify its motion to read into evidence the testimony of the absent witness. The State failed to meet the burden and we must hold it to have been an abuse of discretion to permit the introduction of Dunn’s testimony.

Point III. The evidence was as a matter of law insufficient to support the verdict. The testimony was substantially the same as in the first trial. The facts on which the State relied are detailed in the majority and dissenting opinions on the first appeal. It would be pure repetition to here delineate the facts and circumstances already recited on the first appeal and would be of no value to our jurisprudence. Suffice it to say that we have carefully re-examined them for substantiality and hold the evidence to be legally sufficient to support the verdict.

For the error in permitting the reading of Dunn’s testimony the case is reversed.


author: John A. Fogleman, Justice.

text:
    Carl PURNELL, d/b/a Plantation Embers et al v. Jimmy ATKINSON d/b/a Atkinson & Associates
    5-5196
    451 S. W. 2d 734
    Opinion delivered March 30, 1970

      Dickey, Dickey & Drake, for appellants.

      Henry W. Gregory, Jr. and Robert Tolson, Jr., for appellee.
   John A. Fogleman, Justice.

Acting for Plantation Embers, appellant Carl Purnell entered into an oral contract sometime in 1966 with Atkinson-Torrence Incorporated. Plantation Embers is a corporation engaged in the restaurant business. Atkinson-Torrence was operating as an advertising agency. By the terms of this contract Atkinson-Torrence was to handle Plantation Embers’ advertising with KATV. This agreement was evidenced by a written authorization from Purnell to KATV, the content of which is not disclosed. A part of the advertising agency’s responsibility involved the preparation of materials necessary for advertising three “spots” per week. Appellee Atkinson testified that this oral contract “was a continuing type of thing subject to cancellation on 50 days notice” and that it “was renewed in December for another year, December 1968.” Because of this arrangement, which saved KATV time and expense, KATV discounted by 15% its charge for this advertising. The discount went to Atkinson-Torrence and was its compensation for services; hence, in effect, Purnell did not pay an additional charge for the services. Purnell was billed monthly for the preceding month by Atkinson-Torrence for all charges including the gross charge by the station.

Pursuant to the oral contract, a written contract was executed between KATV and Atkinson-Torrence. This contract ran from December 12, 1967, until December 12, 1968. Although Plantation Embers was not a formal party to this contract, it was made on appellant’s authorization through the oral contract. Prior to this arrangement, Purnell had contracted directly with the television station.

The corporation, Atkinson-Torrence, actually consisted of two people, Mr. Atkinson and Mr. Torrence. Mr. Torrence had done cartoon work used in KATV advertising for Plantation Embers previous to the oral contract with the advertising corporation and prior to the organization of the corporation. Mr. Atkinson, appellee, dealt with Mr. Purnell on copy changes for the advertising. On October 1, 1968, without the knowh edge of Mr. Purnell the corporation was dissolved and Mr. Purnell’s account assigned orallv to Atkinson & Associates which consists solely of Mr. Atkinson. Atkinson renewed the written contract with KATV, effective December 17, 1968, in the name of Atkinson 8c Associates. The parties disagree as to whether Purnell had notice of this renewal. According to Atkinson it was dated December 17, 1968, and a copy sent to Purnell. Purnell denies that he ever received or saw a copy of this contract.

Apparently the first knowledge Mr. Purnell had of the change in the agency came through a letter from Torrence dated December 9, 1968. Purnell was behind in his payments for August and September, and this letter asked that he make these payments in order that the affairs of the corporation could be completed. Purnell testified that he had become unhappy with the advertising because of alleged errors in the announcements and that he had asked to be notified of the time the “spots” were to be run so that he might watch them. When this was not done he withheld payment for August and September, contrary to his prior practice of paying these bills promptly. Upon receiving the letter of December 9, he paid these two bills. Each month thereafter he received a bill for the preceding month but paid none of them. Upon receipt of a bill in February, which set out the balance past due for the months of October, November, and December and the balance due for January, Mr. Purnell wrote on the bottom of the bill, “Jimmy This is in error as these were cancelled months ago” and then returned the bill. When Mr. Atkinson received the bill with the notation, he contacted KATV and arranged to have the advertising stopped as soon as he could. Appellee brought this suit when Mr. Purnell refused to pay the bill. Judgment was given to Atkinson for $870, the amount due prior to the time the cancellation was held to be effective, plus interest.

Appellant Purnell relies on two points: that there was no contract with Atkinson 8c Associates and, alternatively, that it had been cancelled. The first point turns on the validity of the alleged assignment. Appellant advances the theory that the contract was one for personal services and hence not assignable, relying on Roberts Cotton Oil Co. v. F. E. Morse & Co., 97 Ark. 513, 135 S. W. 334, and Leader Co. v. Little Rock Ry. & Elec. Co., 120 Ark. 221, 179 S. W. 358 and 6 Am. Jur. 2d, Assignment, p. 196, § 11. While appellee disputes this theory, it is not necessary to decide this question. An assignment which is invalid or ineffective, even where the contract is for personal services, may be validated by ratification which may relate back to the time of the assignment. 6 C. J. S. Assignments, p. 1133, § 78; 6 Am. Jur. 2d, Assignment, p. 196, § 11, p. 206, § 21; see Corning Roller Mills Co. v. William Kelly Milling Co., 159 Ark. 1, 250 S. W. 895.

On the issue of ratification, the evidence taken in the light most favorable to appellee shows that appellant Purnell had notice of the assignment on the 9 th or 10th of December, 1968. Subsequently he discussed the advertising with appellee, but made no objection to, or repudiation of, the assignment. In this discussion, Purnell again expressed his dissatisfaction with the way the “spots” were being run. The inference, then, is clear that he had knowledge that the spots were being run and would continue to be run. When appellant received bills for the advertising he made no objection until he received the January bill in February. Each statement that was sent him had an invoice from KATV showing the number of spots run during the preceding month. “Atkinson & Associates” was printed on the letterhead of each statement. These facts are sufficient to show that appellant knew the advertising was continuing and that Atkinson & Associates was handling the account. They also show that appellant made no objection and could be said to have ratified the assignment by his conduct. 6 C. J. S. Assignment, p. 1135, § 78; Petitt v. F. V. H. Collins Co., 112 Mont. 12, 113 P. 2d 340 (1941).

Appellant takes the position that by not paying the monthly statements, he evidenced an intention not to ratify the contract. However, he did not pay the October and November bills even though he testified that he did not have notice of the assignment until the 9th or 10th of December, 1968.

Appellee testified without contradiction that the oral contract could be cancelled by either party on 30 days’ notice. While there is some evidence tending to show that the contract was cancelled prior to December 12, 1968, appellant now urges only that the contract was cancelled as of that date. He relies on the conversation that took place shortly after the letter of December 9, 1968. He testified concerning that conversation as follows:

“And I told him that I was willing to pay for anything that I had agreed to buy and pay for, but that I was not happy with this situation, them showing spots that I couldn’t watch and to take the dangers and risk of them running spots for me that I hadn’t even seen, no way to proof copy or anything and that I didn’t want to continue paying for something that I felt was doing me meare harm than good. At no time during our conversation was any mention made of renewal of contract because I was very unhappy with this situation for a period. . .”

On the other hand, Atkinson testified that he first heard of cancellation of the contract around February 10) when he saw the notation on the statement then returned by Purnell. To be effective, notice of termination must be clear, unambiguous and unequivocal. Baker v. Missouri Nat. Life Ins. Co., 372 S. W. 2d 147 (Mo. Ct. App. 1963); Petitt v. F. V. H. Collins Co., 112 Mont. 12, 113 P. 2d 340 (1941); Warrick v. McKnab’s Estate, 164 Kan. 78, 187 P. 2d 502 (1947). We cannot say that appellant’s statement met this test.

Appellant also contends that the contract expired by its own terms on December 12, 1968. Apparently he has confused the written contract to which he was not a party with the oral contract with the agency. While the written contract between appellee and KATV expired on that date, the oral contract did not, as shown by the only evidence in the record, i. e., appellee’s testimony. The court below held the oral contract in existence until February 13, 1969, when it was can-celled, and the record before us supports that finding. The written contract between the agency and the station was renewed in the usual course of their business.

The judgment of the circuit court was based on a finding that the contract had not been cancelled. Since there is substantial evidence to support that view, the judgment is affirmed.

      During a part of the time involved, the business was operated as a proprietorship. It is conceded by appellant that, for the purpose of this case, the change in status is immaterial.

      Neither of these cases involves personal services.

      Appellant’s testimony on this point bears more directly upon the issue of cancellation than it does upon this issue.


author: J. Fred Jones, Justice.

text:
    Cecil M. BUFFALO, Sr. v. ARKANSAS STATE HIGHWAY COMM’N et al
    5-5206
    451 S. W. 2d 737
    Opinion delivered March 30, 1970

      Stubblefield & Matthews, for appellant.

      Thomas G. Keys, Billy Pease and Hubert E. Graves, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Cecil M. Buffalo, Sr. from a decree and order of the Pulaski County Chancery Court requiring him to remove an advertising sign he erected on the right-of-way of state Highway 338, and dismissing his cross-complaint against third parties seeking the removal of an additional encroachment by the third party cross-defendants. Buffalo has designated the points he relies on for reversal as follows:

“The sign of the appellant is authorized, reasonable and necessary for the conduct of appellant’s business.
The state highway department’s assumption of Baseline Road into the state highway system as state Highway No. 338 neither revoked the original authorization for the encroachment nor changed its reasonable or necessary character.
The encroachment of the appellant is temporary and if made in violation of Section 5 of Act 419 of 1953 (Ark. Stats. Sec. 76-544) should be ordered removed only after adjoining encroachments are removed.”

We rather agree with the appellees in their response to the appellant’s points, stated in appellees’ brief as follows:

“There is no such thing as an authorized, reasonable and necessary encorachment.
Inclusion of Baseline Road into the state highway system as Highway No. 338 neither continued to authorize or revoke any authority for encroachments upon the highway, and no such encroachment could be reasonable and necessary in character.
There is no such thing as a temporary encroachment in violation of Ark. Stats. Ann. Section 76-544; removal of an encroachment is not dependent upon the removal of other encroachments.”

The facts in this case are distorted to some extent by implications growing from what the appellant’s attorney characterizes as “a spite law suit,” between the appellant and the third party cross-defendant appellees. From the overall record, however, it appears that Mr. Buffalo purchased the west half of a tract of land, designated “tract 11,” with a filling station thereon. This property fronts 105 feet on the south side of Base Line Road, and also borders the east side of Reck Road where Reck Road intersects, but does not cross, Base Line Road. Mr. and Mrs. Day own the east one-half of tract 11, immediately east of Buffalo’s corner lot, and the north end of the Day property also fronts 105 feet on the south side of Base Line Road. The west boundary line of the Day property coincides with the east boundary line of Buffalo’s property. Base Line and Reck Roads both have 60 foot rights-of-way, and Base Line Road has now been taken over by the state and adopted into the state highway system as state Highway 338.

While Highway 338 was still a county road, and the traffic flow was less than it is now, many encroachments on the 60 foot right-of-way by abutting landowners were permitted by acquiescence as well as affirmative permission and approval by county road officials. A part of the drive or turn-in approach to Mr. Buffalo’s filling station was on right-of-way when Buffalo purchased the property, and the county road superintendent authorized Mr. Buffalo to erect a 4x8 foot sign about 12 feet out into the right-of-way, with the bottom of the sign being two or three feet above the ground. Mr. and Mrs. Day also had a solid board fence built along their west boundary line. This fence is about six feet high and also extends into the right-of-way about eight feet.

After the state took over the maintenance of Highway 338, it seems that additional asphalt was added to the traveled surface of the highway causing it to be considerably higher than the gravel area between Buffalo’s gas pumps and the pavement. Buffalo used his own tractor periodically in filling up holes in the graveled area and in keeping the gravel moved up even with the surface of the blacktop, so that automobiles could easily leave the highway surface without drop-off in entering his service station for gasoline and other services.

The record indicates that Buffalo and Mr. and Mrs. Day had engaged in previous litigation in connection with a surface drainage problem, and that the Days objected to Buffalo’s operation of his tractor on the right-of-way. Mr. and Mrs. Day also objected to the obstruction of vision created by Buffalo’s metal sign. Mr. and Mrs. Day received full credit for reporting Buffalo’s encroachments to the state highway department, resulting in the Highway Commission filing the petition for injunction in the Pulaski County Chancery Court from which comes this appeal.

Buffalo filed a cross-complaint against the Days on June 12, 1969, alleging that they are also encroaching on the right-of-way with their fence, and that if Buffalo is required to remove his sign, then the Days should be required to remove their fence. On June 27, 1969, the Days filed a demurrer, as follows:

“The cross-defendants, R. F. Day and Agnes N. Day, to the cross-complaint of Cecil M. Buffalo, Sr., demur.”

On July 17, 1969, Buffalo filed an amendment to his cross-complaint and alleged that if he was forced to remove his sign, then Days’ fence would obscure his filling station from the view of motorists and prospective customers traveling west on the highway. Buffalo prayed that the Commission’s petition be dismissed and that Days’ rights to maintain their fence as an encroachment into the right-of-way be determined by the court. On October 7, 1969, the chancellor sustained the demurrer and dismissed the cross-complaint by order, as follows:

“On this day came on for hearing the demurrer of the cross defendants, R. F. Day and Agnes N. Day, his wife, to the cross-complaint and first amendment to the cross-complaint of the defendant, Buffalo, and premises considered the Court finds that the demurrer should be sustained and the said Buffalo refusing to plead further, it is ordered by the Court that both the cross-complaint and first amendment to cross-complaint against R. F. Day and Agnes N. Day, his wife, be and the same is hereby dismissed with prejudice.”

Ark. Stat. Ann. § 76-544 (Repl. 1957) provides as follows:

“The rights-of-way provided for all State Highways shall be held inviolate for State Highway purposes, except as hereinafter provided, and no physical or functional encroachments, installations, signs (other than traffic signs or signals), posters, billboards, roadside stands, gasoline pumps, or other structures or uses shall be permitted within the right-of-way limits of State Highways except that political subdivisions, rural electric cooperatives, rural telephone cooperatives, and public utilities of the State may use any right-of-way or land, property or interest therein, the property of the State Highway Commission, for the purpose of laying or erecting pipe lines, sewers, wires, poles, ditches, railways, or any other purpose, under existing agreements or permits or such agreements or permits hereinafter made by the State Highway Commission or under existing laws, provided such use does not interfere with the public use of such property for highway purpose.”

For all practical purposes, under the facts of this case, we agree with the appellees’ statement that “there is no such thing as an authorized, reasonable and necessary encroachment.” In the light of § 76-544, supra, what is reasonable and necessary for the conduct of appellant’s business, must give way to the public welfare under the police powers of the state as expressly set out by statute.

After the petition was filed by the Commission and before hearing thereon, Buffalo removed the 4x8 foot sign and erected another one about 4x4 feet in size and elevated to a height of about 14 feet on two 2 inch steel pipes. Mr. Bill Jeter, maintenance superintendent for the highway department, testified that Mr. Buffalo is actually maintaining several separate encroachments on the highway right-of-way. Mr. Jeter says that there are many other encroachments into the right-of-way by other abutting property owners, and that they all will be requested to remove the encroachments as fast as the highway department can get around to having this done As to the demands made on Mr. Buffalo for the immediate removal of his sign, Mr. Jeter testified as follows:

"Q. Is there any particular reason that the Highway Commission is asking that this particular encroachment be removed at this tíme and at the same time not asking that Mr. Buffalo remove other encroachments or his neighbors encroachments be removed?
A. The reason why that we asked the sign to be removed is that the people using Reck Road say that it obscures their view coming out over the right-of-way.
Q. Does this, in your opinion, create a hazard for traveling motorists?
A. It does.”

We conclude, and so hold, that Mr. Buffalo acquired no prescriptive or other right to the private use of the right-of-way in front of his filling station merely because Mr. White, the county road superintendent, had authorized him to erect a sign on the right-of-way when the highway was a county road. Neither has Mr. Buffalo acquired any private right to build or maintain encroachments on the state highway right-of-way by virtue of his neighbors also maintaining encroachments thereon. From the record before us the state simply owns the 60 foot right-of-way in this case and certainly in the light of the evidence of a hazard to the traveling public, the state has a right to the removal of encroachments erected by Mr. Buffalo. Ark. State Highway Comm’n v. Staples, 239 Ark. 290, 389 S. W. 2d 432; Ark. Stat. Ann. § 76-544, supra.

Buffalo argues that the dismissal of his amended cross-complaint against Mr. and Mrs. Day with prejudice forecloses all possibility of future redress for such wrongs and damage he may sustain by reason of fences erected and maintained by Mr. and Mrs. Day. We do not so interpret the chancellor’s order of dismissal. The chancellor held, and we agree, that Buffalo has no standing to maintain his cross-complaint against Mr. and Mrs. Day in this action brought by the state highway department against Buffalo for the removal of an encroachment built and maintained by Buffalo on the highway right-of-way. Consequently, this decision does not effect Buffalo’s rights to pursue whatever course of action he may have against the Days in a separate action.

In the Oklahoma case of State v. Friar, 25 P. 2d 620, the state sought to enjoin the encroachment by a filling station upon state Highway 66 right-of-way in the incorporated town of Afton. The defendant contended that the town of Afton had jurisdiction over the 70 foot right-of-way through the town, and that there were 10 filling stations already built which protruded from 10 to 15 feet into the right-of-way. The trial court denied the application for injunction and in reversing the decision of the trial court, the Supreme Court of Oklahoma, among other things, said:

“It is elementary that in some cases the rights of an individual citizen or a small group of citizens must give way when the welfare of a great number is affected.
The fact that other filling stations are located within the city limits which also incidentally encroach on the public highway constitutes no defense to this action for the reason that:
‘Laches and estoppel do not operate against the state, and no procrastination of public officials prejudices the state, and their tardiness neither bars nor defeats the state from vindicating its sovereign rights, except where positive statutes so provide.
‘The state’s rights in a public highway differ in no material respect from any other of its manifold sovereign interests and concerns.’ State ex rel. Veale v. Paul, 113 Kan. 412, 214 P. 425.”

In the Alabama case of Jordan v. McLeod, 127 So. 160, two abutting property owners attempted to enjoin the other from encroaching on a public alley right-of-way forming part of a highway through the city of Troy. In applying the “clean hands doctrine” the Alabama Supreme Court said:

“As we understand this evidence, neither party comes to court with his right in the controversy unaffected by his own wrong and encroachments in question, and throughout, the length and breadth of said highway...
The reasonable inferences from the evidence were that both parties were encroaching upon that public highway. The decree was not erroneous, and we will not disturb that result. This will not prevent the city of Troy from acting in the premises against any and all who unlawfully encroach upon that public highway, free of estoppels, laches, statute of limitations, or prescription.”

See also Loud v. Pendergast, 92 N. E. 40, where, in connection with an effort to restrain an alleged violation of a building restriction, the court said:

“Where a plaintiff has violated the very restriction he seeks to enforce to substantially the same extent and in the same general way as has the defendant, and there is no material difference in kind or degree between them, a court of equity will not ordinarily interfere.”

To the same effect is the early Iowa case of Brutsche v. Bowers, 97 N. W. 1076.

The decree is affirmed.'


author: Conley Byrd, Justice.

text:
    Cecil SMITH v. Loleta GOBLE et al
    5-5169
    452 S. W. 2d 336
    Opinion delivered March 30, 1970
    [Rehearing denied May 4, 1970.]

      Lightle ir Tedder, for appellant.

      Wright, Lindsey ir Jennings, for appellee Ford Motor Co.; Barker, Henry, Thurman, McCaskill if Amsler, for White Motor Co.
   Conley Byrd, Justice.

This multiparty products liability litigation grew out of a collision in appellant Cecil Smith’s lane of travel that occurred when a Ford Falcon driven by appellee Loleta Goble crossed the center line and struck the pickup truck being driven by Smith.

Smith and his wife, a passenger, initiated this litigation against Loleta Goble based on negligence. Mrs. Goble’s answer contained a plea that as to her the collision was unavoidable due to a latent defect in her vehicle’s braking mechanism. By a third party complaint Mrs. Goble, her husband and her passengers sought damages against appellee Ford Motor Company and appellee White County Motor Company. Mrs. Goble alleged that she had purchased the 1966 Ford Falcon from White County Motor Company on February 7, 1967, and that on February 21, 1967, while driving in the south bound lane on Highway No. 67, she approached a slower moving vehicle in her lane; that when she applied her brakes to slow down the brakes grabbed, causing her vehicle to swerve into the path of the Smith vehicle; and that the cause of the collision and resulting damages was a defective braking system, unknown to her, which defect, damages and injuries were the fault of negligence, breach of warranty and responsibility of Ford Motor Company and White County Motor Company jointly and severally. Appellant Smith and his wife amended their complaint to also ask for damages against White County Motor Company and Ford Motor Company.

After all parties had rested, the trial court directed a verdict in favor of White County Motor Company. The jury found in favor of Ford Motor Company, but returned a verdict for the Smiths against Mrs. Goble. Mr. Cecil Smith is the only appellant here. For reversal he relies uoon the following points:

“I. The Court erred in requiring the plaintiff to share jury strikes with the original defendant.
II. The court erred in refusing to give instruction on comparative negligence, as between the respective defendants.
III. The court erred in refusing to direct a verdict against Ford Motor Company on the existence of a breach of express warranty.
IV. The court erred in giving instruction No. 40.
V. The lower court erred in permitting dismissal of the complaint against White County Motor Company.”

POINT I: The trial court required the Smiths to share their three peremptory challenges, Ark. Stat. Ann. § 39-229 (Repl. 1962), with Mrs. Goble, her husband and the passengers in her car. In Utley v. Heckinger, 235 Ark. 780, 362 S. W. 2d 13 (1962), we pointed out that in multiparty litigation the parties must be arranged into two groups and each group allowed to exercise three challenges, Ark. Stat. Ann. § 39-231 (Repl. 1962). We can find no abuse of the trial court’s discretion in this instance.

POINT II: The trial court gave the following portion of AMI 501:

“The law frequently uses the expression ‘proximate cause,’ with which you may not be familiar. When I use the expression ‘proximate cause,’ I mean a cause which, in a natural and continuous sequence, produces damage and without which the damage would not have occurred.”

However the trial court, over the objection of all parties, refused to give the bracketed portion that provides:

“[This does not mean that the law recognizes only one proximate cause of damage. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.]”
The trial court gave instruction No. 14 as follows: “You are instructed that if you find from the evidence that there was a defect in the hydraulic braking system of the Ford Falcon driven by Loleta Goble and that the defect existed at the time the automobile left the hands of the Ford Motor Company, and that the automobile was operated and used properly in its intended manner and that the defect caused damages and injuries to the plaintiffs, or any of them, the Ford Motor Company would be liable for the damages sustained as a result thereof.”

Without objection from appellant, the trial court gave instruction No. 15 as follows:

“. . . If you find that a defect in the hydraulic braking system of the Falcon was the proximate cause of the accident, then Mrs. Goble would not be liable for the injuries to any party to this action____”

Assuming, without deciding, that the trial court erred in failing to give the bracketed portion of AMI 501, still we find that any cause for complaint that appellant may have had was rendered harmless by the other instructions given and the verdict returned by the jury. As we read the instructions, the jury had to find that the brake was not defective or if defective, the defect was not a proximate cause of the collision before it could find in favor of Ford Motor Company and against Loleta Goble. Thus when the jury found in favor of Ford and against Goble its finding rendered harmless any alleged error with respect to the bracketed portion of AMI 501.

POINT III: Appellant moved for a directed verdict on the breach of an express warranty upon the basis that Ford Motor Company’s expert Mr. Frey testified that a braking system properly manufactured would not pull to either side. However, even if we assume that appellant is in a position to take advantage of the express warranty, the trial court properly denied the motion for a directed verdict with respect to a breach of the express warranty because of other testimony that there was no defect in the braking system.

POINT IV: Instruction No. 40 given by the court stated:

“The fact that a collision involving a Ford Falcon occurred is not in itself evidence of any fault or liability on the part of anyone.”

Appellant now argues that this instruction is repetitious and amounts to an overemphasis of the burden of proof covered by other instructions and also that the instruction is similar to the unavoidable casualty intruction. Appellant’s only objection in the trial court was: “Let the record show the original plaintiff objects to the giving of instruction No. 40 generally and specifically, for the reason that it is not applicable to this case.” The objections here made are raised for the first time on appeal and for that reason are not considered.

POINT V: Directed Verdict in Favor of White County Motor Company.

When White County Motor Company was sued, it vouched in Ford Motor Company pursuant to the Uniform Commercial Code, Ark. Stat. Ann. Sec. 85-2-607(5) (Supp. 1969). The only proof with respect to White County Motor Company occurred during cross-examination of witness Alvin Doyle Jr., an expert appearing on behalf of the Smiths and the Gobles. On cross-examination by counsel for Ford Motor Company the following occurred:

“Q. What is the effect of a vehicle standing idle for eight to nine months?
A. Not very good.
Q. What will happen?
A. Lots of things can happen; it is better to use a vehicle than it is to sit idle; I think that is common knowledge, but just what will happen, I don’t know, because I haven’t run any particular tests, but I think it is common knowledge to drive one is better than to set it up.
Q-As an automobile mechanic, do you know what will happen in brake wheel cylinders—
A. They have been known to stick, ffeeze up and seize up; I’ve seen it happen from sitting up, and I’ve seen others sit up five and six years and not a thing happen; so, it’s a rather unpredictable arrangement.
Q-You have seen some that had corrosion after they stayed up several months?
A. Not several months, no sir; it is not uncommon to sit up a car several months; I have several times set mine up several months while I traveled abroad, and I have never had any trouble with it from corrosion, or anything of that kind.”

On cross-examination by counsel for White County Motor Company, Mr. Doyle stated that the defects he found could not have been discovered in making a regular inspection of the automobile; probably the only way the defects could have been discovered would be by disassembling the cylinder and entire braking system on the right front; and that to find that the primary piston was not coated properly one would have to disassemble the cylinder.

Any error the court may have committed in dismissing White County Motor Company is now harmless and does not constitute reversible error. The evidence, above, is not sufficient to show any negligence on the part of White County Motor Company. See 8 Am. Jur. 2d Automobiles § 650 and 60 C. J. S. Motor Vehicles § 165(5). Furthermore, since the jury has exonerated Ford Motor Company for an alleged manufacturing defect that appellant’s expert witness admits was latent and could not have been discovered without a complete disassembly of the right front whed brake, appellant is now estopped to complain against White County Motor Company on a derivative liability upon the theory of an implied warranty. See Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844 (1956).

Affirmed.


text:
    Maggie WALKER v. STATE of Arkansas
    5470
    451 S. W. 2d 727
    Opinion delivered March 30, 1970

      Harkness, Friedman & Kusin, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Conley Byrd, Justice.

A jury found appellant Maggie Walker guilty of voluntary manslaughter and fixed her punishment at five years in the penitentiary. For reversal of the judgment upon the verdict, appellant argues that the trial court erred in not dismissing the charges against her because her actions were in self-defense and for her own protection. We find no merit in appellant’s argument.

The record shows that H. D. Hughes, the ex-husband of Mary Hughes, was corresponding with both appellant and the decedent Norene Hatter. Immediately prior to the shooting a commotion occurred when H. D. Hughes tried to get his drunk son to go home. About the time that Mary Hughes, the boy’s mother, started trying to get him home, a fight started between appellant Maggie Walker and Norene Hatter.

Appellant’s version is that when she got even with decedent, the decedent grabbed her dress, started stabbing at her with a knife, and said, “Bitch if you don’t kill me g . . .d . . . I’m going to kill you.” Decedent kept on stabbing, so appellant commenced shooting to protect herself.

Other witnesses stated that appellant started the fight. Alton Hodnett said that when appellant came out of Al’s Cafe, she walked up behind decedent and hit her, and that when decedent turned around, he heard four or five shots.

Dr. Scott McMahen testified that decedent died of three gun shot wounds in the abdomen.

The issue of self-defense was a fact question for the jury.

Affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Margaret WATSON et al
    5-5128
    451 S. W. 2d 741
    Opinion delivered March 30, 1970

      Thomas B. Keys, Philip N. Gowen and Bedford G, Webb, for appellant

      Clark, Clark ir Clark, Guy H. Jones, Phil Stratton and Kenneth Coffelt, for appellees.
   Frank Holt, Justice.

This is a condemnation proceeding in which appellant acquired 12.77 acres from appellees’ tract of land containing approximately 195 acres. The land was needed for the purpose of constructing a controlled access highway facility. This acquisition severed the property, leaving one residual containing 118.83 acres and the other 64.04 acres. One of appellees’ two expert value witnesses testified that just compensation was $7,400 and the other estimated damages at $8,350. Mrs. Bessie Watson Coffelt, one of the landowners, testified that $24,200 was just compensation. One of appellant’s two expert value witnesses testified that the landowners’ just compensation was $2,000 and the other witness placed damages at $2,250. The jury awarded $16,000. From that judgment comes this appeal.

Appellant first contends the trial court erred in allowing Mrs. Coffelt to testify as an expert witness. We agree with the appellant’s contention. Mrs. Coffelt had been licensed for four years as a real estate broker plus two years additional experience as a real estate salesman, as well as experience in real estate transactions while working in her husband’s law office. When she was asked on direct examination for her opinion as to the before value of the land, appellant objected on the ground that she was not qualified as an expert to testify in this proceeding. The court held that: “[SJhe’s qualified as an expert in the field of condemnation of land to base an opinion as to value.” She testified on direct examination that “as an owner” the land was worth $200 an acre before the taking and as a real estate broker “I still say it’s $200 an acre.” At the conclusion of appellees’ case the appellant, in an in-chambers proceeding, moved to strike the testimony of the landowners’ expert witnesses, Barnes and Pearce, as well as Mrs. Coffelt’s, “[f]or the reason that there is no substantial testimony upon which they might base their opinions and the things testified to by them are speculative and highly conjectural.” The court denied the motion as to Barnes and Pearce. The court withheld passing upon the motion as to the testimony of Mrs. Coffelt “as an expert.”

The pertinent rule is well stated in 5 Nichols, Eminent Domain, § 18.42:

“While dealers in real estate, local officials and other witnesses who are supposed to have a special science and skill in appraising real estate are commonly spoken of as ‘real estate experts,’ they are not expert witnesses in the narrower meaning of the phrase. In other words, the general skill and knowledge of his subject which such a witness is supposed to possess is not in itself enough to qualify him to give an opinion of value in an eminent domain proceeding. He must, in addition to such general knowledge, be acquainted with values in the vicinity of the land in controversy, and he must be familiar with the property itself, or at least have examined it at or about the time of the taking.”

On direct examination Mrs. Coffelt stated that she had not “investigated any particular piece of real estate in Faulkner County.” She revealed a lack of familiarity with the value of farm property in the vicinity of the land in question. She testified that she had never sold any farm land. On cross-examination a lack of familiarity with the subject matter was further shown. In our view Mrs. Coffelt did not demonstrate the necessary general knowledge concerning the subject of farm values nor the prices of land in the area to justify a reasonable basis for her testifying as an expert. We must consider her testimony as being prejudicial. The jury awarded almost twice as much as the damages testified to by her two expert value witnesses. We have said many times that where an error is committed to which a proper objection is made, the error will be treated as prejudicial unless it be demonstrated that the appellant was not prejudiced. Arkansas State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794 (1963).

The appellant next asserts that the testimony of Mrs. Coffelt, as a landowner, is insubstantial. We have long recognized that an owner of property is competent to testify as to the value of his property even though he has no knowledge of property values if he has an intimate acquaintance with his property. Arkansas State Highway Comm. v. Duff, (May 12, 1969) 440 S. W. 2d 563. However, it does not mean that every landowner’s testimony constitutes substantial evidence and we review the testimony to determine whether there is a satisfactory explanation given for the conclusion reached. Arkansas State Highway Comm. v. Darr, (Feb. 24, 1969) 437 S. W. 2d 463.

Mrs. Coffelt testified that she considered the before value of the land at $200 per acre. She placed the uniform damage to one residual at $100 per acre because of reduction in size and distortion. She uniformly reduced the value of the other residual from $200 to $50 per acre due to the reduction in size and distortion and asserted that it was landlocked. It appears she was unaware, except by reference to the construction plans, of the existence of a direct access between the two residuals by the construction of a large culvert. She admitted that she had never sold farm property and it appears that she had no knowledge of the value of farm property in this vicinity. Mrs. Coffelt, one of several heirs to the lands, did not live upon nor utilize the property. Her mother had occupied and exercised complete control and management of the property for many years. Based upon the record before us, we are of the view that Mrs. Coffelt failed to demonstrate a sufficient intimate knowledge of the land, before and after the taking, to constitute a reasonable basis for her value opinion. Therefore, we hold her testimony as a nonresident landowner was insubstantial. Arkansas State Highway Comm. v. Darr, supra. See, also, Arkansas State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173 (1962).

The appellant also insists that the court erred in failing to strike the testimony of the landowners’ two expert value witnesses. After careful consideration we are of the view that any infirmities in their testimony bear upon the weight and do not render it inadmissible.

Reversed and remanded.


text:
    Lonnie B. MITCHELL v. Captain O. E. BISHOP Supt.
    5482
    452 S. W. 2d 340
    Opinion delivered April 6, 1970
    [Rehearing denied April 27, 1970.]

      John Sizemore, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Carleton Harris, Chief Justice.

This appeal is another in the long line of court hearings relating to the conviction of Lonnie Mitchell for the crime of rape in Union County in March 1959. The original conviction was affirmed by this court in Mitchell v. State, 230 Ark. 894, 327 S. W. 2d 384. Subsequent thereto, over a period of 10 years, there have been numerous court hearings, in both federal and state courts. After a* second hearing in the United States District Court for the Eastern District of Arkansas, presided over by the late Federal District Judge Gordon Young, the court finding that Mitchell’s petition should be denied, appellant took a second appeal to the Eighth Circuit Court of Appeals and argued several points for reversal.

Points asserted were that, because of the methods employed in the selection of his jury, Mitchell was denied the equal protection of the laws; because of a discriminatory application of the death penalty for rape in Arkansas, Mitchell was denied equal protection and the privilege against cruel and unusual punishment; because of his admission and rape confession, Mitchell was denied due process and the privilege against self-incrimination; because of ineffective representation by his court appointed trial counsel, Mitchell was denied due process and the right to have the assistance of counsel for his defense. Finally, counsel raised the issue of Mitchell’s sanity at the time of the offense and at the time of the trial.

In a comprehensive opinion, that court disposed of each of these points as being without merit, except that it disagreed with the District Court’s finding that appellant had waived the question of coercion in connection with his confession by not raising the question at the state trial; it was held that, under the case of Jackson v. Denno, 378 U. S. 368 (1964), Mitchell was entitled to an independent state court determination as to the voluntariness of his confession; the case was remanded with directions that the State of Arkansas should be granted a reasonable time to afford appellant an appropriate hearing on the issue of voluntariness of his rape confession, or in the alternative, grant a new trial. In compliance therewith, a hearing on this issue was afforded Mitchell in the Union County Circuit Court on April 25, 1967. Though the appellant was present in court with his parents and attorney at the hearing, no testimony was offered, attorneys for the state and appellant agreeing to submit the matter to the trial judge on the records already made in the state and federal courts. The only evidence offered orally was a short addition to the previous testimony of Sheriff Bishop relating to whether Mitchell’s original attorney, J. S. Thomas, visited appellant at the jail while the case was pending. The court rendered an opinion holding the confession voluntary, but we remanded the case, because it was not entirely clear from the court’s findings that all of the evidence in the records before him pertaining to the voluntariness of the confession had been weighed and evaluated. We directed that the case “should be remanded to the trial court for rehearing or a reexamination and reevaluation of all the evidence pertaining to the voluntariness of appellant’s confession.” In compliance therewith, the Union Circuit Court conducted a further hearing on April 18, 1969, at which time oral testimony was given by four city policemen of El Dorado and one State Policeman, all having had some connection with Mitchell’s arrest or detention at the jail. No testimony was offered by appellant, or anyone in his behalf; in fact, Mitchell has never testified in any hearing held in state courts. The trial court rendered a comprehensive opinion, holding:

“* * # that the confession of Lonnie Mitchell was voluntarily made of his own free will, with knowledge and comprehension of his constitutional rights, and without coercion, duress, threat, abuse, enticement or promise of reward from any persons whatsoever, and that same is supported by evidence beyond a reasonable doubt.”

From the judgment entered in accordance with this finding, Mitchell brings this appeal.

At the outset, we might commend appellant’s appointed counsel for the efforts expended on behalf of their client, and the very thorough manner in which their contentions have been briefed. We say this, despite the fact that we do not agree that Mitchell’s confession was obtained involuntarily. No point would be served in detailing the facts, for they have been fully set out in the various opinions that have been rendered in this case by the federal and state courts. Actually, it is difficult to write an opinion which does not simply repeat findings already made by these courts.

We are called upon to pass on the voluntariness of Mitchell’s confession to rape, and counsel also urge that we should adopt and enforce the McNabb-Mallory Rule to further the efficient administration of criminal justice, and it is argued, for that additional reason, should reverse the trial court.

In reaching our conclusions, we particularly note the following facts, though not necessarily in the order of their importance.

First, the confession was taken by tape recorder, and there is no evidence of “breaks” in the recording occasioned by the officers’ stopping the machine in order to tell Mitchell what to say. The only breaks, according to the Prosecuting Attorney, came when it was necessary to turn the record, or place a new record on the machine. The use of the tape recorder is far different from the practice that occurred years ago when the officer would write out in narrative form in his own language the confession, and then present it to the defendant for signature. It is also far different from the question and answer method, for, of course, the interrogation can be halted, if desired, after every question, and later continued (for the record) after “off the record” acts or conversation. A recording reflects the tone of voice used, the intervals between questions, whether the questions are leading, and the pauses made in the answers. Of course, we know that, generally speaking, it is much easier to ascertain the truth from hearing the spoken word than to make such a determination by reading a typewritten page. In the present instance, Mitchell’s statement of events occurring on the evening of the crime, before and after, is first set out by the witness at length without any interrupdon from the state’s attorney (which is noticeable, since appellant said Prewitt told him what to say), and there is no indication whatsoever of any fear or coercion before, or during, the giving of the statement.

Second, appellant’s attorney, J. S. Thomas, testified that he discussed the confession with appellant, explaining that, if any abusive treatment could be connected to the statement, it would help the case, but that Mitchell insisted that he had been well treated.

One of the most important facts is that appellant made no complaint of mistreatment whatsoever until after the trial was over and he had been sent to Tucker State Farm. Though Mitchell testified that Wiley Bran-ton, a prominent and capable Negro attorney, came to see him after the trial, he (Mitchell) said that he did not tell Branton that he had been mistreated; nor did he make any assertion of mistreatment to his father.

In reviewing the record, we find no evidence of mistreatment, or any indication that the confession was involuntary, except the testimony of Mitchell himself. Of course, this testimony must be considered — and we do consider it — but in doing so, we also consider the evidence on the other side. A court, when holding a hearing, or trying a case without a jury, is generally called upon to determine, where there are conflicts in the evidence, which witnesses were telling the truth and which were not telling the truth. Needless to say, Mitchell was more interested in the result of these hearings than any other witness, as well he might be, since his freedom and life were at stake. But to take his testimony, and hold that it is true, would simply mean that we totally disregard the evidence of the Prosecuting Attorney, the Sheriff, the city officers, the State Policeman, and Mitchell’s own attorney, as well as his failure to complain to the others heretofore mentioned Not only that, but his claim of mistreatment would be accepted in the face of obviously untrue statements concerning other charges made by appellant. For instance, Mitchell testified emphatically that he did not see his attorney from the time of his arraignment until the time of trial; that Thomas never talked with him or went to the jail to see him; that Thomas never consulted him at all about the case; that he had only spoken about three words to Thomas in his life; that Thomas did not discuss the jurors with him. We think the evidence clearly establishes that these statements were not correct, and, in fact, his own father testified that he heard Thomas when the jury was being selected inquiring about a particular juror, “What do you think about this one?”

The cases of Miranda v. Arizona, 384 U. S. 436, and Escobedo v. Illinois, 378 U. S. 478, were held not to be retroactive in Johnson v. New Jersey, 384 U. S. 719, and we so held in Gross v. State, May 12, 1969, 440 S. W. 2d 543.

However, in Davis v. North Carolina, 384 U. S. 737, a case which was reversed because of a finding that Davis confessions were the “involuntary end product of coercive influences,” the Supreme Court said:

“We have also held today, in Johnson v. New Jersey, 384 U. S. 719, 16 L. ed. 2d 882, 86 S. Ct. 1772, that our decision in Miranda, delineating procedures to safeguard the Fifth Amendment privilege against self-incrimination during in-custody interrogation is to be applied prospectively only. Thus the present case may not be reversed solely on the ground that warnings were not given and waiver not shown. As we pointed out in Johnson, however, the nonretroactivity of the decision in Miranda does not affect the duty of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1738 (1964).”

Of course, under our own case law, there is a presumption that an in-custody confession is involuntary, and the burden is on the state to show the ¡statement to have been voluntary, i. e., freely and understandably made without hope of' reward or fear of punishment. In determining whether a confession is voluntary, the court must look to the whole situation and surroundings of the accused. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293, and cases cited therein.

After a thorough study of the evidence and proceedings from the time of the arrest, we are definitely of the opinion that the confession was voluntarily given; that appellant was not denied constitutional rights to a fair trial or due process of law, and we are firmly of the view that the confession was properly admitted into evidence.

The McNabb-Mallory doctrine, of course, only applies when there is federal detention. We have consistently held that our statute, - Ark. Stat. Ann. § 43-601 (1947) is not mandatory but directory only. Paschal v. State, 243 Ark. 329, 420 S. W. 73, and cases cited therein. We do not agree with appellant that due process calls for McNabb-Mallory standards to be imposed by the states, and we decline counsel’s suggestion that we depart from previous holdings, first rendered in Browning v. State, 206 Ark. 791, 178 S. W. 2d 77 (1944).

Affirmed.

Byrd, J., disqualified.

        Mitchell v. Stephens, 353 F. 2d 129 (1965).

        Mitchell v. Bishop, 245 Ark. 899, 435 S. W. 2d 91.

      Though the Circuit Court of Appeals has already passed on the question of effective assistance of counsel (Mitchell having contended to the contrary), we might mention that counsel appeared to take more than the ordinary interest in the case, though he was only counsel by appointment. Mitchell’s father testified that he and Thomas met in Pine Bluff for the purpose of consulting attorney Branton, Thomas making the trip by bus.


text:
    W. W. MISENHIMER, Trustee and SECURITY BANK v. PERKINS OIL COMPANY
    5-5209
    451 S. W. 2d 864
    Opinion delivered April 6, 1970

      Douglas Bradley, for appellants.

      Branch, Adair ir Thompson, for appellee.
   George Rose Smith, Justice.

The question in this case is priority of lien between two real estate deeds of trust, which we will refer to as mortgages, executed by Parsons Gin Company. The earlier mortgage was executed by the gin company on April 30, 1957, and is held by the appellee, Perkins Oil Company. The later mortgage was executed by the gin company on January 5. 1967, and is held by the appellant, Security Bank of Paragould. The chancellor upheld the oil company’s claim to priority under the earlier mortgage. We find the decree to be correct.

The controlling issue is really whether the oil company’s mortgage was saved by part payments from the bar of the five-year statute of limitations. Ark. Stat. Ann. § 37-209 (Repl. 1962). That mortgage was executed by the gin company to DeSoto Oil Company to secure five $6,000 notes due annually from December 15, 1957, to December 15, 1961. The first note was paid. Part payments were indorsed on the other four notes by DeSoto before it went out of business and sold those four notes to the appellee, Perkins Oil Company, on 'May 22, 1963. Perkins Oil Company continued to carry on business with the gin company.

The oil company set up two ledger accounts on its books with respect to the gin company. The first one, which accumulated only a half dozen entries, was entitled “Notes Receivable — Parsons Gin Company,” and reflected the gin company’s note indebtedness and the payments thereon. The second account, entitled “Parsons Gin Company,” was the general account in which day-to-day transactions between the parties were entered. On January 31 of two separate years the oil company struck a balance in the latter account and transferred the sum standing to the gin company’s credit as a payment on the note account. In that manner the oil company credited $5,165.17 to the note account on January 31, 1964, and $9,488.36 to the note account on January 31, 1966. Those are the part payments relied upon by the oil company to avoid the bar of limitations.

To continue the statement of facts, the gin company executed its second mortgage to the appellant, Security Bank, on January 5, 1967. That instrument contains this recital: “This lien on the above property is second and inferior to lien held by Perkins Oil Company.” Under our law that recital prevents the bank from taking advantage of the oil company’s failure to indorse the gin company’s part payments upon the margin of the recorded mortgage. Gunnels v. Farmers’ Bank of Emerson, 184 Ark. 149, 40 S. W. 2d 989 (1931). Thus the bank’s claim to priority narrows down to its insistence that the oil company’s transfer of credits to the Parsons note account in 1964 and 1966 did not cause the statute of limitations to begin running anew.

We cannot sustáin that argument. The important point is the fact of payment, not its indorsement upon the notes or upon the ledger. See Slagle v. Box, 124 Ark. 43, 186 S. W. 299 (1916); King v. Boles, 124 Ark. 112, 186 S. W. 607 (1916). And where thei;e are two or more obligations owed by the debtor, the creditor is entitled to apply a part payment as he chooses if the application has not been directed by the debtor. Hawkins v. Hawkins, 200 Ark. 38, 137 S. W. 2d 904 (1940).

Here T. C. Lee, the president of the oil company, testified that the applications of the payments were made with the debtor’s consent. “We consulted with Mr. Parsons and told him what the status of his account was, and he said to apply it on his Notes Payable.” There is no merit in the bank’s objection to Mr. Lee’s testimony under the hearsay rule. The gin company, a partnership, was the principal defendant in the case; so the quoted statements were properly received as admissions made by a party to the suit. Greer v. Davis, 177 Ark. 55, 5 S. W. 2d 742 (1928). They, together with the ledger entries, establish the part payments which kept the notes alive.

Affirmed.


text:
    W. D. BREAZEALE v. Jo Betty BREAZEALE
    5-5104
    451 S. W. 2d 865
    Opinion delivered April 6, 1970

      Joe Holmes, for appellant.

      Reinberger, Eilbott, Smith ér Staten, for appellee.
   Lyle Brown, Justice.

Appellee Jo Betty Breazeale was awarded a divorce, custody of three teen-age children, and child support. W. D. Breazeale appeals only from that part of the decree granting the divorce, alleging insufficiency of the evidence.

It was shown that on two previous occasions the parties became estranged but those difficulties were compromised. It was admitted that one of those incidents involved appellant’s relation with another woman. The present divorce action, filed in January 1969, was based on alleged indignities. The proof in that connection covered two principal items of alleged activities by the husband, namely, (1) false accusations of infidelity directed at the wife, and (2) embarrassment caused by his passing numerous bad checks. We find the proof to be sufficient to sustain the chancellor.

Appellee testified that she was constantly accused of dating other men; that appellant endeavored to see that some member of the family always accompanied appellee when she went to town; and that he called her many immoral names, such as a cheap prostitute. Some of the name-calling was alleged to have been in the hearing of the children. A year or more prior to the trial, appellant was said to have developed the habit of writing bad checks to cover debts, so appellee claimed, that were incurred by appellant over and beyond the necessary living expenses. (It is clear from the record that numerous such checks were outstanding at the time of trial.) In his efforts to appease pressing creditors, the appellee wife testified that appellant sold her engagement and wedding rings, and mortgaged the furniture, as well as the equipment in her beauty shop, all without her knowledge. She said she experienced constant embarrassment from meeting friends and business men who held checks on her husband. She allegedly experienced a feeling of disgrace because the sheriff had been to the house many times with reference to the checks, in fact had there arrested her husband two or three times. On one occasion she said he was arrested on the street in the presence of her and the children.

Appellant offered only his own testimony. He candidly admitted making accusations of infidelity. He testified that in retrospect he realized his charges were wholly unwarranted. With respect to the checks he admitted their circulation but contended that he considered them as notes, telling the recipients he did not have the money. He admitted that at the time of trial he had a total of some twenty-three creditors, mostly individuals, to whom he owed a total of more than $8,000. He contended that he was working at manual labor on the railroad, that his lawyer had a “stack of checks” and was apportioning the proceeds of Breazeale’s check monthly to his creditors. He explained that a substantial part of the “loans” went to support his family at times when he was in a financial strain. He avowed his love for his wife and children and asked that the divorce not be granted because he was hopeful of reconciliation.

Appellant argues that the giving of the checks could form no ground for the granting of a divorce. (Appellant, in his argument here, refers to “postdated checks” but the record does not reflect the use of the term.) The chancellor was warranted in finding from the evidence that the continuous giving of a substantial number of bad checks was wrong. In fact appellant’s own counsel advised him that he made a mistake in giving the checks. The chancellor also believed, and correctly from the evidence, that appellant conducted himself with a conscious indifference to the resulting embarrassment of his wife and children.

Secondly, appellant challenges the sufficiency of the corroborating evidence. Witness Jean Hicks appeared to be on good terms with both parties until shortly before the final separation. Mrs. Hicks testified that on two different occasions she heard appellant accuse appellee of infidelity; and that on another occasion she heard him call appellee an immoral name and within the hearing of the children. The witness recounted one of the incidents wherein the husband was jailed and Mrs. Breazeale returned home by herself. Finally, the witness corroborated Mrs. Breazeale in the latter’s contention that the family was not the recipient of most of the proceeds of the bad checks. Mrs. Hicks testified that on several occasions she helped Mrs. Breazeale pay current bills. It is apparent to us that this divorce action was not a collusive contest, so the reauired corroboration can be “comparatively slight and yet be sufficient.” Walker v. Walker, 248 Ark. 93, 450 S. W. 2d 1.

Affirmed.

Harris, C. J., not participating.


text:
    Dora BERRY v. Clarence C. BIERMAN
    5-5210
    451 S. W. 2d 867
    Opinion delivered April 6, 1970

      Kenneth Coffelt, for appellant.
    No brief filed for appellee.
   Lyle Brown, Justice.

In 1955 appellant Dora Berry deeded one acre of land, on which was situated a small house, to her brother, Clarence C. Bierman, appellee. The recited consideration was $2,100. There was a down payment of $500 and the balance was timely paid at the rate of $50 per month. A right to repurchase was contained in the deed, as follows:

The grantor herein reserves the right and option to repurchase said property at any time after a period of four years from date hereof for the same price as above mentioned. (Italics supplied.)

Appellee Bierman forthwith moved his family into the house. In 1965 appellee added two small rooms to the house and dug a water well, claiming to have spent some $2,000 for those improvements. He was positive in his testimony that when he accepted the deed the word after was not in the right to repurchase clause. It was his contention that the word within there appeared instead of the word after. In that event the right to repurchase would of course have expired in four years. So, appellee says, he made the improvements at a time when he in good faith thought he owned the property outright.

Appellee testified that he discovered the alleged alteration in April 1969, at which time he sent his wife to talk with appellant about releasing the restriction. This suit was filed to reform the deed when appellant Dora Berry declined to release the reservation. Alternatively, appellee asked for reimbursement for his improvements in the event appellant Dora Berry was given the right to repurchase. Appellant answered, denying any change had been made in the deed and asserting that appellee was not entitled to reimbursement for improvements. She also asked for the right to exercise the option to repurchase.

The trial court denied reformation of the deed. It was decreed that Dora Berry’s option to repurchase was valid but that in addition to the purchase price, appellant would have to reimburse appellee for the improvements made. From that part of thé decree Dora Berry appeals.

We cannot agree with the chancellor that appellant, who held the right to repurchase, is chargeable with the improvements. In the first place, the chancellor in effect held that there was no alteration of the deed. There was no appeal from the trial court’s denial of reformation. We therefore have no alternative but to accept the proposition that the word “after” was in the redemption clause at the time the deed was executed and delivered. Secondly, Bierman came into possession of the deed in 1957 (after he paid the full purchase price) and thereafter continuously possessed it. He surely was thenceforth chargeable with constructive notice of the contents of the instrument. From the time the deed was delivered to appellee until he made the improvements (some eight years later) he admittedly did not read his deed. In fact an additional four years transpired before he read it and then because his wife called it to his attention. His wife had known of the wording of the deed previous to the latter date but the record does not disclose when she first discovered it. There is no evidence that appellant said or did anything to lull appellee into believing that her option to purchase had expired.

We have explored the suggestion that appellee might recover the value of the improvements he made under our betterment statute, Ark. Stat. Ann. § 34-1423 (Repl. 1962). That statute allows recovery for improvements made on the lands of another when those improvements are made under color of title. The act is designed essentially to reimburse one who in good faith makes improvements on the strength of a written instrument which on its face professes to pass title but which does not do it. The deed in question does not fall in the category of a “color of title” instrument as that phrase is used in the betterment statute. See Thompson, The Law of Real Property, § 2650 (1940). On its face the deed from Berry to Bierman contains a right of redemption or repurchase which limits the fee simple conveyance.

We reverse and remand with directions that appellee be relieved of any liability for the improvements.

Byrd, J., dissents.


text:
    Thomas HOOVER et ux v. Fred SMITH et ux
    5-5212
    451 S. W. 2d 877
    Opinion delivered April 6, 1970

      Fred Pickett, for appellants.

      William H. Howell and George Steel, for appellees.
   John A. Fogleman, Justice.

Appellants and appellees are adjoining property owners, the lands of appellants lying east of those of appellees. Both tracts are bounded on the north by Little River. Appellants acquired their property in 1963. Their predecessors in title had owned it since 1929. Appellees have owned their property since 1937.

This controversy involves the right of appellants to continue to use a roadway across the lands of appellees as a means of ingress and egress. This way enters appellees’ property at the extreme southwest corner thereof where it intersects a county road. It meanders northerly along the west boundary of appellees’ land to Little River, thence easterly along Little River to an old ferry landing, then to a campground and, finally, to the boundary between appellants and appellees. It has been in existence many years and was used by appellants and their predecessors in title as their primary means of ingress and egress until November, 1968. The preponderance of the evidence supports the chancellor’s finding that it then constituted the only feasible means of access to appellants’ lands. At least 10 years ago appellees enclosed their lands by fencing the entire tract. A wire gap gate was then placed and has been subsequently maintained across the roadway at its juncture with the county road. In November, 1968, appellees replaced this gate with a metal gate, which they locked. Thereafter, they refused passage across their lands to appellees. There was also a gate at or near the boundary line.

Appellants brought this action to enjoin appellees from denying them use of the roadway, claiming an easement for ingress and egress based upon prescription. Appellees defended upon the ground that any prescriptive rights acquired by the public or by appellants had been lost and that no one had the right to cross their lands except by permission.

The preponderance of the evidence supports the chancellor’s finding that the public established prescriptive easements across appellees’ property, at least as far as the ferry site and old campgrounds. It also supports his finding that at least a private easement by prescription existed from the old ferry site to appellants’ lands. The chancery court, however, denied relief to appellants because it found that gates were erected and maintained by appellees for more than seven years, not only to keep cattle enclosed, but for additional reasons sufficient to bar any use of the roadway by appellants as a matter of right.

Appellants assert that abandonment of their prescriptive rights was not shown by a preponderance of the evidence, and that failure of appellants to take steps to remove the gates within seven years did not constitute a bar to present relief. They argue that no clear intention on the part of appellees to obstruct passage over the road was evidenced until the gate was locked.

It is clearly established that erection and maintenance of a gate by an owner does not give notice that subsequent use of a way across his lands is permissive and not as a matter of right, unless it was maintained as a means of asserting the owner’s dominion over the road. Martin v. Terrell, 229 Ark. 787, 318 S. W. 2d 607. The placing of a temporary device across a roadway for the purpose of restraining livestock, but not for the purpose of obstructing an adjoining owner or the public in the use of the road, is not sufficient to interfere with the reasonable enjoyment of a right to use it. Hockersmith v. Glidewell, (Ark., 1913), 153 S. W. 252. On the other hand, it is well settled that erection and maintenance of a gate or a wire gap across a road, by an owner, when his purpose is not merely to restrain livestock, constitutes notice to the public that, thereafter, any travel upon the road is by permission of the owner and not as a matter of right to the public or to any individual traveling the road, even though the gate or gap may be left open during certain seasons. Porter v. Hugg, 162 Ark. 52, 257 S. W. 393; Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59; Kennedy v. Crouse, 214 Ark. 830, 218 S. W. 2d 375.

The cases hereinbefore cited also constitute authority for the proposition that a prescriptive easement may be barred after maintenance of a gate for more than seven years, without any action by one claiming the easement to prevent the obstruction, and that failure to take such action during that period constitutes an abandonment of the easement. Our most recent application of these rules was in Munn v. Rateliff, (November 10, 1969), 446 S. W. 2d 664.

The real point at issue on this appeal is the intention of appellees in placing and maintaining the gates, or at least the gate at the entrance to their property from the county road. In Raney v. Gunn, 221 Ark. 10, 253 S. W. 2d 559, where it had been alleged that there had been an abandonment of permissive and prescriptive rights after the erection and maintenance of gates for the purpose of preventing entry of livestock into a pasture, we held that a landowner seeking injunctive relief against the closing of the gate had the burden of proving that a prescriptive right still existed.

While we agree with the chancellor that the question is a close one, we cannot say that his finding was clearly against the preponderance of the evidence.

Thomas Hoover testified that it had been necessary to open a wire gap to go in and out of the Smith place ever since he could remember and that no one had to ask permission. Those using the gate opened and closed it as they entered the Smith place. Hoover also testified that on the other side of the Smith place he always opened another gate on his own land. Both gates had been in place as long as he could remember. He testified that the latter gate was actually on appellants’ land. According to him, the property line was on the west side of a slough and the fence between the lands of the parties on the east side of the slough. Hoover claimed the fence on the east side and the gate there, but admitted that the fence and gate on the west side of appellees’ property belonged to Smith. The reason for this location of the fence was explained by Glenn Baker, the son of appellants’ predecessor in title and a witness called by appellants, tie said that his father built the fence on the east side of the slough to leave a little road going down through the slough, so people could get to a big bend in the slough without bothering the fence. He stated that most of the slough was on Smith’s land.

Hoover related that he had placed a culvert in the road in 1965 and was assisted by Smith and appellees’ son. He also stated that he htid the county put gravel on about 50 yards of the road from a trestle down to the slough bridge. All this was done, he said, with the knowledge and approval of Smith. Mack Rogers, who helped Hoover with this work, confirmed the presence of Smith when the culvert was installed. Rogers had heard Smith threaten to “cut up the road” on an occasion when Smith • showed him where travel had taken place across his i meadow, making it sort of muddy and “bogged down.”

Smith testified that he had erected a “posted” sign near the entrance gate in 1960. At about the same tíme he also placed an “article” from a farm magazine on a post at the gate. It recited “Read before you enter” and “This is a privilege to enter this, not a right to this property.” Smith stated that he also wrote the words “Read before you enter” on a piece of cardboard which he placed above the piece of magazine paper.

When it was established on cross-examination that Smith did run cattle on his land at times, the following ensued:

“Q. These gates you put up there — these gaps we’ve been talking about, were they placed there to stop the traveling public or to keep your cows in?
A. To keep my cows in and keep the outside cattle out.
Q. It was never your intent until lately, until folks started driving over your meadow for you to keep the public out or Mr. Hoover out, is that correct?
A. Well, I tell you, there has been for years that I’ve threaten to lock it but never did get around to it and I should have done it twenty years ago.
Q. And I take it you have threaten to do it from time to time?
A. In my own mind.”

Mrs. Smith corroborated her husband’s testimony as to the magazine clipping posted on the gate. She also stated that her son had brought materials from college 19 years ago, and stencilled “posted” signs to put up. She recalled that the gates had been locked for short periods of time during several years prior to November, 1968.

Hoover could recall having seen a sign on a board near a spring along the road saying “Keep out.” He testified that he made inquiry of Smith, and that Smith replied that the sign was only intended to apply to people who were running around over the pasture, but not to Hoover.

The question whether the gates were maintained for reasons other than restraint of cattle so that they constituted notice to Hoover and the public was a question of fact to be determined by the chancellor. Brock v. Bates, 227 Ark. 173, 297 S. W. 2d 938. When the evidence is conflicting or evenly poised, or nearly so, in cases such as this, the judgment of the judge who had the opportunity to see and hear the witnesses in evaluating the evidence is persuasive. Munn v. Rateliff, (November 10, 1969), 446 S. W. 2d 664. Viewing the testimony relating to the placing of signs on the gate by Smith, we are unable to say that the chancellor’s finding on the critical point was against the preponderance of the evidence. The chancellor’s finding is particularly persuasive in this instance, because he gave deliberate and extensive consideration to a motion for rehearing questioning his original holding on this point.

Appellants argue that our opinion in the Munn case suggests that a private easement might exist under circumstances which might result in a holding that a public easement had been abandoned, if the way in question is a landowner’s only means of ingress and egress. Yet, we did not have such a case before us there. We definitely stated that the owner there had another means of access. Although we referred to the abandonment of a public way, it is clear that appellant there was relying only upon a public easement, and it is doubtful that the facts would have permitted a claim of private easement. In any event, we have applied the same rules in cases where individual rights, as well as rights of the public, were asserted or apparent. Brooks v. Reedy, 241 Ark. 271, 407 S. W. 2d 378; Lusby v. Herndon, 235 Ark. 509, 361 S. W. 2d 21; Brock v. Bates, 227 Ark. 173, 297 S. W. 2d 938; Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59.

The chancellor correctly held that the fact that there may be no other means of ingress and egress to appellants’ lands would not permit their continued use of the road as a way of necessity. There is a lack of essential ingredients to allowance of such a way: the Smiths are strangers to appellants’ title; and, although it appears from the evidence that there has been another means of access, there is no showing that a necessity existed when appellants purchased their land. Boullion v. Constantine, 186 Ark. 625, 54 S. W. 2d 986; Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18.

The chancellor retained jurisdiction to allow appellants time to proceed under Ark. Stat. Ann. § 76-111 (Repl. 1957) et seq. Under authority of Harper v. Hannibal, 241 Ark. 508, 408 S. W. 2d 591, we reinvest the chancellor with jurisdiction to allow appellants to continue to use the roadway until they have been afforded a reasonable time to so proceed after this decision has become final.