text:
    Lee-Phillips Drainage District v. Beaver Bayou Drainage District.
    5-904
    289 S. W. 2d 192
    Opinion delivered March 26, 1956.
    [Rehearing denied April 30, 1956.]

      Daggett & Daggett, for appellant.

      Charles B. Roscopf and Burke, Moore & Burke, for appellee.
   Lee Seamster, Chief Justice.

On June 9, 1953, the Commissioners of the Beaver Bayou Drainage District filed the instant suit against the Lee-Phillips Drainage District in the Phillips Chancery Court. The petition asked that Lee-Phillips Drainage District be enjoined from pursuing a plan of improving its drainage district until and unless Lick Creek Canal of the Beaver Bayou Drainage «District is cleaned out, widened and deepened; that Lee-Phillips Drainage District should share in the cost of cleaning said canal in proportion to the number of acres drained in each district, or in the alternative, by mandatory injunction the Commissioners of Lee-Phillips Drainage District be directed to take the necessary steps to have the lands in the Lick Creek Canal area of Beaver Bayou Drainage District annexed and made a part of the Lee-Phillips Drainage District.

In order to facilitate an understanding of the issues, we will set out a brief history of the two drainage districts, as disclosed by the record.

The Beaver Bayou Drainage District was created by Act 92 of the Acts of 1907. One of its canals is what is known as Lick Creek Canal, extending from a point where the same intersects the southern boundary of the Lee-Phillips Drainage District to its terminus or outlet into Big Creek, a distance of approximately five and three-fourths miles. The area embraced within Beaver Bayou Drainage District is approximately 50,000 acres — all in Phillips County, Arkansas. Of the total acreage, only approximately 3,500 acres drain into Lick Creek Canal.

The Lee-Phillips Drainage District was subsequently organized and created in 1917 under the General Drainage Laws of this State. This District was organized by proceedings in the Circuit Court of Phillips County, as it embraced lands in more than one county. 46,500 acres of land are embraced in the Lee-Phillips Drainage District — all of which acreage drains into the Lick Creek Canal in the Beaver Bayou Drainage District.

Lick Creek Canal has a total mileage of twenty miles — five and three-fourths miles are situated in the Beaver Bayou Drainage District and approximately fourteen and one-half miles in the Lee-Phillips Drainage District, with, laterals added there is a total of 29.90 miles to be improved in Lee-Phillips Drainage District. The source of Lick Creek is about three miles south of Mari-anna, Arkansas, and runs in a southerly or southeasterly direction through Lee and Phillips Counties to a point where the same crosses State Highway No. 20, between West Helena and Barton, Arkansas. At this point it turns southerly and southwestwardly and finally runs into Big Creek in Phillips County, Arkansas. The Lick Creek Canal has a fall of about three and one-fourth feet per mile in the Lee-Phillips Drainage District and that portion in the Beaver Bayou Drainage District has a fall of about two feet per mile.

During the year 1910 the appellee district constructed an artificial canal, straightening out that part of Lick Creek that was within its boundaries. In 1917 the appellant district was created and during the years 1921 and 1922 work was done for the purpose of straightening Lick Creek and improving the drainage within its confines. To have an outlet for its surface waters, it became necessary to use the Lick Creek Canal in the appellee’s district.

On June 17, 1952, the appellant district filed a petition in Phillips Circuit Court, under the maintenance statute (Ark. Stats. § 21-533) seeking an order levying a tax to defray the costs of cleaning out and rehabilitating its ditches. The appellee district intervened asking substantially the same relief here prayed for and the trial court dismissed the intervention for want of jurisdiction and granted the petition. On appeal, this court affirmed the decision of the trial court, stating that appellee district would have to institute a plenary suit in a court of competent jurisdiction. (Beaver Bayou Drainage Dist. v. Lee-Phillips Drainage Dist., 221 Ark. 550, 254 S. W. 2d 465).

Upon trial of the instant suit, the trial court rendered a decree enjoining the appellant district from proceeding with its proposed improvement or any part or portion thereof unless and until it pays ninety-three per cent (93%) of the cost of cleaning out the five and three-fourths miles of Lick Creek located in appellee’s district. This appeal follows.

For reversal, the appellant cites the following points: (1) That the action is barred by the statute of limitations; (2) that appellant has acquired by purchase as well as by prescription a permanent easement to discharge the waters of Lee-Phillips Drainage District into said Lick Creek Canal of Beaver Bayou Drainage District; (3) that the Lee-Phillips Drainage District as well as the Lick Creek Canal of Beaver Bayou Drainage District is a natural waterway; that there is no diversion of water into said canal by Lee-Phillips and that the right exists as a matter of law for Lee-Phillips to empty into said canal; and, (4) that the injunction of the trial court prevents it from doing any maintenance work whatever although that obligation and right is bestowed on it by Ark. Stats. § 21-407.

Lick Creek served as the natural drain for all the property located in the Lee-Phillips Drainage District. By improving its district some thirty years ago, the appellant caused the surface waters to be drained into the north portion of the Lick Creek Canal, which Canal had been previously constructed by the Beaver Bayou Drainage District to protect its lands from an overflowage of water. The appellant as consideration for the connection of its drainage ditch with the north portion of the Lick Creek Canal located in appellee drainage district, dredged about one mile of the canal and cleaned out the growing timber in the remainder of said ditch, to a point of the natural outlet in Big Creek. This action was taken to compensate for the increased flow of water from the Lee-Phillips Drainage District, occasioned by the improvement of the natural drain. The appellant had the right to perform this work to provide an outlet for the surface waters. Lesser-Goldman Cotton Company v. Cache River Drainage District, 174 Ark. 160, 294 S. W. 711.

The Statute of Limitations is not applicable to the facts in the instant case. The appellant has a right to continué the connection of the drainage districts, which connection has existed for a period of thirty years. However, we feel that this right should he limited by the provisions that are hereafter set out.

It is the contention of the appellant that Lick Creek is the natural drain of all its district and its improvement by straightening and ditching Lick Creek does not change it from a natural drain to an artificial drain. Citing the case of Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160. Appellant contends further that since Lick Creek is a natural drain, its right to use the creek for drainage purposes is unrestricted. Citing, Board of Drainage Commissioners of Drainage District No. 10 of Bolivar County, et al. v. Board of Drainage Commissioners of Washington County, et al., 130 Miss. 764; 95 So. 75; 28 A. L. R. 1280.

The general rule of law relied upon by thé appellant, to the effect that a riparian owner or owners have the right to drain their surface waters into a natural watercourse, has many qualifications and exceptions. This court has followed the general rule of law which limits and restricts the rights of a dominant owner to cast his surface waters upon the owner of servient lands. In the draining of one’s land of surface water it is not permissible to direct the flow of the water upon the adjoining lands, or to increase the volume of the flow by the construction of a drain or ditch. See Missouri Pacific R. Co. v. Parker, 167 Ark. 42, 266 S. W. 959; Leader v. Mathews, 192 Ark. 1049, 95 S. W. 2d 1138.

The purpose for which the appellant and appellee drainage districts were created is basically of a public nature. The design is for the benefit, not the injury, to land owners in the respective drainage districts. The upper district has the right to allow the natural flow of waters from its lands to follow the natural drain into the lower district, without obstruction. The lower district has the burden of protecting its land owners from this natural flow of water, without damage to the land owners in the upper district. However, the upper district, tlie appellant, slionld be required to furnish, the additional facilities to dispose of the extra flow of water into the appellee district, that would be caused by the proposed improvement.

We find that the trial court erred in its method of arriving at the respective cost to the parties on an acreage basis. The result under this method would require the appellant district to pay 93% of the cost of cleaning out the five and three-fourths miles of Lick Creek located in the appellee drainage district. The appellee district should be responsible for the costs of providing drainage for the natural flow of water through the Lick Creek Canal and the appellant district should be responsible for the costs that would be necessary for providing additional drainage for the extra flow of water through the canal that would be caused by the proposed improvement of its drainage district.

The trial court will permit the parties to take additional evidence so that the cost to the parties may be pro-rated in accordance with the provisions set out in this opinion.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: J. SeaborN Holt, Associate Justice.

license: Public Domain

text:
    Jones v. Lawless.
    5-898
    288 S. W. 2d 324
    Opinion delivered March 26, 1956.

      Gordon B. Carlton, for appellant.

      Geo. E. Steel, for appellee.
   J. SeaborN Holt, Associate Justice.

A petition signed by 63 qualified electors was filed in the Pike County Court for a special election in Pike County School District No. 1 “for electing one member to the County Board of Education in Zone 4 Pike County, § 80-3020 Ark. Stats. 1947.” On March 30, 1955, this petition was granted by the County Court and an election was ordered to be held on April 30, 1955, at such place or places as the Board of Election Commissioners might designate. In apt time Pike County School District No. 1 published notice setting out that one of its purposes was “to elect one County Board Member from Zone 4 for a regular term of 5 years.” Kirby School District No. 32 had caused to be published a similar notice for the .same purpose. Following these notices the special election was held in accordance with the County Court order. Appellant says in.his brief, “The Special election was held in School District No. 1 and Zone 4 of Pike County pursuant to the order of the County Court.” The Board of Election Commissioners on April 4, 1955, designated the Langley School House Building as the polling place in Pike County School District No. 1 and Zone 4, for the special election to be held on April 30, 1955. Thereafter, (April 15, 1955) the Board of Directors of Kirby School District No. 32 gave notice that a special election would be held in Zone 4, School District 32, on April 30, 1955, and the Daisy School Building was designated as the polling place. The election was held and appellant Jones received a majority of the votes cast at the Langley box and ap-pellee Lawless received a majority of the votes cast at the Daisy box. It is conceded that Lawless received a majority of the combined votes oast at Langley and Daisy boxes.

Pike County, in April 1941, was divided into four zones under Act 327 of 1941, and in that zoning order Kirby School District 32 was placed in Zone 3 and Daisy School District in Zone 4. In an order of the County Board of Education, February 28, 1949, Daisy School District 37 was dissolved and its territory annexed to Kirby School District 32 in Pike County.

In due course the Pike County Board of Election Commissioners, on May 4, 1955, filed with the Clerk of the County Court a report and certificate of the result of said election: that appellee Lawless had received 95 votes and Jones 66 votes in the special election, and that Lawless had been elected County Board Member for the regular term of five years from Zone 4. Thereafter on May 10, 1955, the County Court entered an order which contained this recital: “This Court, after a careful analysis of the result, from a canvass of the returns, and from an examination of the Zoning Order of 12th of April, 1941 for Pike County, Arkansas, made from an examination of certain order of the County Board of Education made and entered on the 28th day of February, 1949, dissolving Daisy School District No. 37 of Pike County and annexing the territory thereof to Kirby School District No. 32 of Pike County; and from an examination of a Rezoning Order made by the County School Re-Districting Committee of Pike County on the 4th day of April, 1955, in accordance with Act 229 of the Acts of the General Assembly for 1953 and from other facts and records examined and construed, is of the opinion, and so finds, that the territory which, prior to the dissolution of the Daisy School District under the orders of the County Board of Education, together with the property, funds and obligations of every nature of said district were annexed to Kirby School District No. 32, and said territory has continuously since 1949 been a part of the Kirby School District, and by reason of the Kirby School District having been placed in Zone 3 of Pike County, became a part of said Zone 3. The Court further finds that, since the re-zoning action of the County School Re-districting Committee on the 30th day of April, 1955, without regard to other acts and orders of the Zoning and Re-Districting Committee, of the County Board of Education, or of the Board of Election Commissioners for Pike County, all of the territory embraced in the old Daisy School District of Pike County became a part of Zone 3 and that as a result of said Re-Zoning Order, without regard to other orders or facts, the electors of the old Daisy School District were without right to legally cast their votes at the special election of April 30, 1955, for the County Board Member to be elected for Zone 4, and that the election so held at the Daisy Schoolhouse was void and the votes there polled and counted and certified to the clerk of this court by the Board of Election Commissioners for Pike County cannot be legally' counted or considered in determining the results of the election called and held on the 30th day of April, 1955, for the purpose of electing a County Board Member for Zone 4; that said box should be expunged from the record of the said election and that A. M. Jones, having received a majority of the votes cast and counted at the Langley box in District No. 1 of Pike County, which embraces the identical territory as Zone 4 of Pike County, should be declared the duly elected County Board Member for Pike County for the five-year term for which said election was called and held,” and declared Jones to be the duly elected County Board member from Zone 4.

An appeal from County Court Order was duly prosecuted by appellee Lawless to the Circuit Court. It was stipulated between the parties that Henry Lawless, ap-pellee, received the larger number of votes tabulated in the Langley and Daisy boxes. On a hearing in the Circuit Court the court found that the purpose and effect of the appeal from the County Court could only be to test the correctness of the County Court’s tabulation of the election returns and certifying the results, and “ ... that in order to go behind the returns and test the validity of the votes it must be done in proper time and by direct action or original action in the Circuit Court. This was not attempted by the intervenor, A. M. Jones, and if attempted was not accomplished in proper time.” The order of the County Court, accordingly, was reversed with directions to the County Court to declare Henry Lawless duly elected and further that the purported re-zoning order of April 4, 1955, by the County Board of Education, should be set aside and declared void, in order to re-zone in a manner more equal in area and school attendance.

This appeal followed. For reversal appellant relies on the following points: “1. The territory, which prior to 1949 comprised the Daisy School District, upon being annexed to Kirby District No. 32, became not only a part of the Kirby District but a part of Zone 3 of Pike County, and the electors residing therein could not legally vote a board member from Zone 4. 2. An election could not be legally held under the petition, the order of the court and the notice of election given pursuant thereto, except within District No. 1 of Pike County. 3. District 1 and Zone No. 4 being synonymous, the board member who was elected was elected by the votes cast at the Langley School House Box, which was the only election held in said district and zone on April 30, 1955. 4. The judgment of the County Court has become final by reason of the fact that no direct contest was instituted by the appellee in the Circuit Court of Pike County, contesting said election and the judgment of said court, within twenty days from the date of the election. 5. In the alternative, if the electors residing in that part of Kirby School District No. 32, which prior to 1949 comprised and constituted the Daisy School District, were entitled to vote in the special election of April 30, then and in that event, there was no legal election for board member from Zone 4 for the obvious reason that no opportunity was afforded the electors residing in the territory, which prior to 1949 comprised the New Hope District, to participate in that election.”

We have concluded, in the circumstances here, that the judgment of the Circuit Court is correct and must be affirmed. Obviously, appellant here was attempting to contest a school election in the County Court, which has no jurisdiction in an election contest. The jurisdiction for such contest is lodged in the Circuit Court and not the County Court. “ ... with respect to school elections the county courts were vested with but two powers; canvassing returns and certifying results. . . . That court merely canvasses the returns and declares the result, its order constituting a permanent record of the outcome of the election. An appeal from that order would merely test the correctness of the court’s tabulation of the returns. An election contest, on the other hand, involves the matter of going behind the returns and inquiring into the qualifications of the electors and other matters affecting the validity of the ballots. Jurisdiction of such a contest was conferred upon the circuit court by Act 366, and we have no reason to think that the Legislature did not intend for that jurisdiction to be exclusive. ’ ’ Parsons v. Mason, 223 Ark. 281, 265 S. W. 2d 526. Since it is stipulated, or admitted, in the present case that appellee Lawless received a majority of the votes cast at the two polling places in the special election, the only power and duty vested in the County Court was merely to canvass these returns and certify the results. It could not go behind the returns and inquire into the qualifications of the electors and other matters that might affect the validity of the ballots cast. Guthrie v. Baker, 224 Ark. 752, 276 S. W. 2d 54, “Head Note No. 2. ‘Proffered testimony relating to votes cast at an illegal voting place held not admissible in Circuit Court on an appeal under Act 403 of 1951 from an order of the County Court declaring the results of an election for membership to County Board of Education.’ ”

Our conclusion makes it unnecessary to discuss the points raised by appellant which, in effect, would be proper in an election contest properly brought in the Circuit Court. Judgment affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Williams v. Harrell.
    5-866
    288 S. W. 2d 321
    Opinion delivered March 26, 1956.

      Tompkins, McKenzie & McRae, for appellant.

      Denman & Denman, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is a suit to recover a promissory note and other items of personal property. Equity jurisdiction was invoked so that Herman Bonds, the maker of the note, could be enjoined from making direct payments until the conclusion of the litigation.

Appellant, Mrs. Clara Williams, brought the suit against appellee, Mrs. Nell Harrell, alleging: that appellant was the owner of the personal property and the $2,000.00 promissory note dated May 6, 1954, signed by Herman Bonds, and payable to Mrs. Williams; that Mrs. Williams left the note and property in her apartment in Prescott, Arkansas, and went to Texas on a trip; that, due to illness, she was unable to promptly return to Prescott; that in a long distance telephone conversation on June 6, 1954, she requested L. J. Harrell (husband of appellee, Mrs. Nell Harrell) to take charge of the note and other property for her as her bailee; that Mr. Harrell complied with Mrs. Williams’ request and then died while still having in his possession the note and some of the property; and that the appellee, Mrs. Nell Harrell, had possession of the note and property and refused to return any of it to Mrs. Williams. In her answer Mrs. Harrell admitted that she held the note and some of the articles of personal property, but claimed that by the will of her husband, L. J. Harrell, she was given all of his property in fee simple, and that L. J. Harrell became the owner of the note and property in a final settlement between himself and Mrs. Williams.

A large portion of the evidence was directed to the affairs and business dealings between Mr. Harrell and Mrs. Williams. It was stipulated that on July 16, 1953, Mr. Harrell had sold his interest in the tourist court business to Mrs. Williams; but, even so, the evidence showed that Mrs. Williams continued to have various business and personal transactions with Mr. Harrell. Letters she wrote to him in June and July, 1954, substantiated the fact that she was getting money from him at those times. Mrs. Williams testified that she drew a check on May 12, 1954, to “cash” for $350.00 and paid Mr. Harrell all that she then owed him. The check bore the notation: “To Lynne for city bills”; but after the photostatic records of the bank had been checked, it was finally stipulated that the quoted notation was not on the check when it went through the bank.

Mrs. Williams testified, just as her complaint alleged, that Harrell got the note out of her apartment on June 6, 1954, and was keeping the note for her and that she had never endorsed it. She claimed that she and Mr. Harrell had a final settlement out in the park in Texarkana on the 28th of June, 1954, and that he had there the clipboard — on which she left the note in her apartment — and that the note was not then on the clipboard. She said she entirely failed to think about the note or get it back from Harrell. Her testimony, that she was able to repay Harrell on June 28th, is at variance with the letters that she wrote him wherein she said she was without fnnds. Mrs. Williams relied strongly on the fact that she had never endorsed the note; and contended that Harrell was a good business man and would have obtained her endorsement on the note if he had received it in any final settlement.

It had been shown that when the tourist court was sold to Mr. Herman Bonds, he paid $3,000.00 in cash and executed the note for $2,000.00. Mrs. Harrell and her witnesses testified that they heard a conversation between Mrs. Williams and Mr. Harrell at his place of business in Prescott the latter part of May or the 1st of June, 1954, in which Harrell said to Mrs. Williams: “I will take this note and you take the money and pay the bills.” Also it was testified that on Mr. Harrell’s books, under “Accounts Receivable,” he had written in his own handwriting this notation: “1954, May, Note Plerman Bonds, $2,000.00.”

Thus the Chancery Court had to decide whether Mrs. Williams had surrendered the note to Harrell on June 1, 1954, or whether Mrs. Williams had left the note in her apartment, as she testified, and that Harrell got the note as her agent on June 6, 1954. The evidence was in hopeless conflict and there are many inconsistencies on each side. We omit many details, the recital of which would add nothing favorable to the reputation of the litigants. The Chancellor awarded the note and some of the personal property to Mrs. Harrell. Each side has appealed. We discuss, first, Mrs. Williams’ direct appeal, in which are argued two assignments.

I. The appellant says:

“The finding of the Chancellor is not only against the preponderance of the evidence. It is contrary to the stipulation filed in the case.”

It was stipulated that L. J. Harrell had sold all his interest in the tourist court and cafe to Mrs. Williams by hill of sale dated July 16, 1953; and “ . . . it is further stipulated and agreed that there will be no evidence introduced at the trial of this cause, oral or documentary, relating in point of time prior to July 16, 1953 . . . for the purpose of proving any indebtedness owing by Clara Williams to L. J. Harrell or by L. J. Harrell to Clara Williams.”

Appellant says that the Chancellor’s memorandum opinion shows that in reaching his findings in this case he considered business dealings and relationships between L. J. Harrell and Mrs. Williams prior to July 16, 1953. It is true that the Chancellor mentioned earlier dealings and relationships, but these were not mentioned . . for the purpose of proving any indebtedness owing . . . ,” which is the language of the stipulation. The references, that the Chancellor made to earlier dealings of the parties, were by way of recitals only, and were not determinative of his findings and conclusions. He was careful to point out that he based his findings on the credibility of the witnesses.

The fact that Mrs. Williams and Mr. Harrell had a financial settlement on July 16, 1953, did not alter the fact that they had many subsequent transactions and business dealings. Mrs. Williams’ letters showed that she asked Mr. Harrell to make financial payments for her; and she admitted owing him money as late as her letters of July, 1954. The fact that Mrs. Williams insisted that a final settlement had occurred between her and Mr. Harrell in the park in Texarkana on July 26, 1954, shows that financial transactions arose after July 16, 1953. If she had a financial settlement with Mr. Harrell on July 28, 1954, why did she not get the note at that time1? That is the question that Mrs. Williams was unable to answer. She brought this suit and had the burden that any plaintiff has in a replevin action, that is, to prove that the plaintiff is the owner and entitled to the possession of the items in litigation. The Chancellor found that Mrs. Williams had not proved her right to prevail; and, in reaching that conclusion, he did not make any finding violative of the stipulation, and did not go contrary to the stipulation.

II. Appellant says:

“The note was not transferred, but if it were transferred, it was not transferred for value.”

If Mrs. Harrell’s witnesses are right —■ and the Chancellor so found — then the note was transferred by Mrs. Williams to Mr. Harrell on the first of June, 1954, when Mrs. Williams and Mr. Harrell had the conversation testified to by four witnesses; and Mrs. Williams ’ admission of a settlement in the park in Texarkana on the night of July 28, 1954, and her failure to demand the note at that time, support the conclusion that Harrell had received the note as his own in the settlement on the 1st of June, 1954.

The fact that Mrs. Williams had not endorsed the note does not prevent it from having been transferred. Sec. 68-149 Ark. Stats, provides:

"Where the holder of an instrument payable to his order, transfers it for value without endorsing it, the transfer vests in the transferee such title as the trans-ferror had . . .”

Some of our cases on that provision of the negotiable instruments law are: Cureton v. Farmers State Bank, 147 Ark. 312, 227 S. W. 423; and McDonald v. Olla State Bank, 192 Ark. 603, 93 S. W. 2d 325.

Conclusion: As previously stated, the decision in this case turns on the credibility of the witnesses. The Chancellor saw the witnesses and heard them testify. We are asked to say that his findings are against the preponderance of the evidence; but a careful study of the entire record does not convince us that he was wrong in any respect. Therefore we affirm the decree both on direct appeal and cross appeal.

         Included were a television, an electric refrigerator, a lawn mower

       The date of Mr. Harrell’s death was August 11, 1954. and other articles, but the most of the evidence concerned the promissory note.

       In one letter of July 16, 1954, Mrs. Williams thanked Mr. Harrell for $5.00 that he had just sent her and thanked him for paying certain bills for her in Prescott and also said that, if she went back to housekeeping, she wanted to use his refrigerator. In another letter, Mrs. Williams requested Mr. Harrell to make the monthly payment for her on her car; and it was shown that this payment was $150.00. In the same letter she referred to the refrigerator as being his. In another letter, Mrs. Williams said to Mr. Harrell: “You keep a statement oí-an account of what you have paid of mine. ... I want to know how much I owe you.”

       These questions were asked of Mrs. Williams: “Q. When you paid him up in Texarkana you paid him in cash out in the park? A. Yes. . . . Q. Now you testified still later on the 28th of June you had a settlement with Mr. Harrell and where did that occur? A. In the park at Texarkana. Q. And did I understand you to say that he had the clipboard there at that time? A. Yes. Q. Was that the same clipboard that had the note and other miscellaneous bills on it? A. Yes, the note was not on thqre. Q. Did you have any conversation about the note, any discussion about the note at that time? A. The note hadn’t entered my mind. . . .”

       See § 34-2101 et seq. Ark. Stats, and cases there cited.


author: MiNor W. Millwee, Associate Justice.

text:
    Crow v. Russell.
    5-893
    289 S. W. 2d 195
    Opinion delivered March 26, 1956.
    [Rehearing denied April 30, 1956.]

      George M. Booth and Coleman & Mayes, for appellant.
    No brief for appellee.
   MiNor W. Millwee, Associate Justice.

Appellant, S. L. Crow, brought an action of unlawful detainer against appellees, Josiah E. Bussell and wife, in which he sought possession of a certain dining room and damages for its alleged unlawful detention in the sum of $1,550.00. A writ of possession was issued upon the posting of the statutory bond by appellant but appellees filed a cross-complaint in which they sought judgment for loss of prospective profits allegedly suffered by them in the sum of $1,130.00 because of appellant’s breach of an oral lease contract under which appellees operated the dining room for three months as tenants of the appellant.

At the conclusion of all the evidence the trial court found, as a matter of law, that appellees’ eviction was wrongful because no notice to terminate the tenancy had been given them and a verdict was directed in their favor upon appellant’s complaint. Appellant concedes the correctness of this ruling but contends the court erred in overruling his motion for a directed verdict upon appellees’ cross-complaint because the evidence is insufficient to sustain the verdict in favor of appellees in the sum of $200.00 for loss of prospective profits sustained by reason of appellant’s breach of the contract.

There is little dispute in the evidence which discloses that appellant had the Randolph Hotel in Pocahontas, Arkansas, under lease from the owner in December, 1954, when it was orally agreed that appellees would take over operation of the dining room until August 1, 1955, when appellant’s lease expired and there would be further negotiations as to a written lease. The appellant was inexperienced in the hotel business and had been operating the dining room at a loss. Mrs'. Russell was an experienced operator of eating establishments. It was also agreed that for the term of January 1 to August 1, 1955, appellees would furnish meals to appellant and one hotel employee and pay one half of the hotel utility bills and for $87.00 worth of groceries on hand, when profits permitted, as consideration for the oral lease of the dining room and equipment.

Appellees took over the dining room January 1, 1955 and operated it until shortly after the filing of the instant action on March 26,1955. According to appellees ’ records, the receipts of the business for the months of January, February and March, respectively, were in the amounts of $404.02, $410.66 and $551.44. The total business disbursements for the same respective months were $409.35, $384.86 and $409.15, resulting in a net loss of $5.33 for January and net gains of $25.80 and $142.29, respectively, for February and March. In addition ap-pellees and their two children received all their meals which were valued at approximately $135.00 per month.

A banquet hall was added to the premises in January and appellees acquired the business of serving-luncheons to two civic clubs and had made arrangements to serve another club at an estimated additional profit of $10.00 weekly at the time of eviction. When appellees first took over the project very few guests of the hotel were taking their meals there but nearly all of them were doing so when this suit was filed. Mrs. Russell estimated they would have realized a cash profit of $175.00 monthly besides the meals for her family for the four months unexpired term of the oral lease if it had not been breached by appellant. She advised appellant in February that they would begin paying on the utility bills in March. Appellant asked her to pay $35.00 as ap-pellees’ part of the utility bills to date shortly after March 1st. At that time appellant owed appellees $68.30 for meals furnished two of his guests and Mrs. Russell told him to bring the utility bills and they would have a settlement, but he refused to do so.

The rule applicable in cases like this was clearly stated by Judge Hart, speaking for the court, in Black v. Hogsett, 145 Ark. 178, 224 S. W. 439, as follows: “The principle touching the question of profits as an element of damages is well settled. The rule is that where one party to a contract is prevented from performing the same by the fault of the other party, he is entitled to recover the profits which the evidence makes it reasonably certain he would have made, had the other party carried out his contract. The rule that damages which are uncertain or contingent can not be recovered, does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover. Straudle v. LeRoy, 122 Ark. 189, and Harmon v. Frye, 103 Ark. 584.” Other cases to the same effect are: Spencer Medicine Co. v. Hall, 78 Ark. 336, 93 S. W. 985; Beekman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S. W. 988; Blumenthal v. Bridges, 91 Ark. 212, 120 S. W. 974; Harrell v. Davis, 210 Ark. 939, 198 S. W. 2d 180.

In arguing that the evidence of prospective profits was too speculative and conjectural, appellant relies on such cases as Beasley v. Boren, 210 Ark. 608, 197 S. W. 2d 287, and Sumlin v. Woodson, 211 Ark. 214, 199 S. W. 2d 936. In the Beasley case Judge RobiNs pointed out that no records or data were introduced in support of plaintiffs’ theory of loss of anticipated profits at a new and untried business location. Similar conditions existed in the Sumlin case where plaintiff was relying primarily upon the experience of a prior operator in the absence of any showing that plaintiff’s ability as a merchandiser approached that of his predecessor.

When considered in the light most favorable to ap-pellees, we conclude that the evidence was sufficient to sustain the verdict of $200.00 for loss of prospective profits. In our opinion the evidence meets the test of reasonable certainty and is not too speculative or conjectural to be considered as the proximate result of appellant’s breach of the oral lease contract.

Affirmed.


author: George Rose Smith, J.

text:
    Twin City Lines, Inc. v. Houck.
    5-872
    289 S. W. 2d 198
    Opinion delivered March 26, 1956.
    [Rehearing denied April 30, 1956.]

      Harper, Harper & Young and Theron Agee, for appellant.

      Ralph W. Robinson and Hardin, Barton, Hardin & Garner, for appellee.
   George Rose Smith, J.

This is an action brought by Gertrude Houck and her husband for damages resulting from a traffic collision in which Mrs. Houck was injured. The jury awarded Mrs. Houck $18,000 in damages and awarded her husband $1,500. The appellant’s principal contentions are that Mrs. Houck was guilty of contributory negligence as a matter of law and that the larger verdict is excessive.

The accident occurred on a one-way street leading from Fort Smith to Van Burén. Mrs. Houck, driving alone, had parked her car on the right-hand side of the street and was about to alight on the street side. Without looking back for oncoming traffic she released the door lock with her left hand, allowing the door to open not more than two inches. While still holding the door handle she reached forward with her right hand to turn off the ignition. At that moment the appellant’s bus, traveling very close to the cars parked on the right, struck the door, bending it outward in a U-shaped curve. The plaintiffs’ proof is to the effect that Mrs. Houck was jerked so violently by the impact that her neck was broken. She also sustained a comparatively minor leg injury.

The operator of the bus, traveling at some distance behind Mrs. Houck, had seen her park her car. He says that as he approached the parked car a motorist in the other traffic lane honked his horn and began to pass the bus. The two lanes are somewhat crowded when cars are parked on both sides of the street. The jury were warranted in finding that the bus driver, without reducing his speed, drove extremely near the cars parked on his right and in doing so struck Mrs. Houck’s door, which was open an inch or two. The bus driver testified that he did not sound his horn, that if necessary he drives within an inch of parked cars, and that he understands it to be against the law for a person “to open the door against traffic,” as Mrs. Houck did.

The proof does not show that Mrs. Houck was con-tributorily negligent as a matter of law. The question is whether a reasonably prudent person would, in Mrs. Houck’s circumstances, release the door catch, and allow the door to swing slightly ajar without first looking to the rear. No doubt such conduct takes place daily; it is for the jury to say whether it amounts to carelessness. The only Arkansas decision cited by the appellant on this issue, Ponder v. Carroll, 193 Ark. 1120, 105 S. W. 2d 72, is readily distinguishable. There the plaintiff alighted from a wagon and, apparently without looking for danger, walked into the stream of traffic. That such reckless conduct was held to he negligence is not controlling with respect to the altogether different facts now before us. It cannot be said that Mrs. Houck’s actions would be regarded as carelessness by all fair-minded men.

We do not consider the $18,000 verdict to be too liberal. Before her injuries Mrs. Houck had earned more than $5,000 a year from the operation of a beauty shop and a cafe. There is evidence to show that she is permanently disabled as the result of a fractured vertebra in her neck and that she may have to wear a rigid brace for the rest of her life. The verdict can hardly be declared excessive if her present condition is due solely to the collision. The appellant insists, however, that such a conclusion is not supported by substantial evidence.

On this issue the conflicting testimony presented a question for the jury. Physicians who testified for the appellant believe that Mrs. Houck suffers from a congenital defect caused by the failure of certain neck bones to fuse during her childhood. But two of these doctors had originally diagnosed Mrs. Houck’s injury as a fractured vertebra, and that opinion was expressed by a medical witness called by the plaintiffs. It is argued that the latter view is based upon the assumption that Mrs. Houck suffered a “whiplash” strain and that there is no proof to support such an assumption. Mrs. Houck testified, however, that she experienced a violent jerk at the moment of the collision. The jury were justified in believing that this testimony, couched in layman’s language, satisfied the medical requirement that a severe flexion must have occurred. In reaching their conclusion the jury may well have considered the fact that the defect, if congenital, had apparently never manifested itself in any way before the collision occurred.

We find no merit in the appellant’s remaining contentions, that the verdict in favor of Mr. Houck is excessive and that two instructions given by the court were abstract.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Harris v. Starr.
    5-907
    288 S. W. 2d 332
    Opinion delivered March 26, 1956.

      Shaw & Spencer, for appellant.

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

On April 29, 1951 the wife of appellant, E. A. Harris, was killed in an automobile collision on Highway 71. On May 18, 1951 Harris filed a complaint against appellee, Joe Starr, d/b/a Oklahoma Exposition Shows, J. F. Brown, S. K. Clark and Floyd Brown, alleging negligence on the part of Floyd Brown who was driving a truck attached to a carnival cook shack, and alleging that said Brown was operating the truck under the control and management of Starr. Personal service was had on all of the dé-fendants except Starr and service was apparently attempted on him by serving the Secretary of State under Ark.. Stats. § 27-340 or § 27-341 as more fully set out hereafter.

None of the above named defendants appeared for trial and on October 16, 1951 a default judgment was taken against all and each of them in the total amount of $16,495. There were in fact three suits filed against appellee and the other defendants growing out of the same accident. One was by E. A. Harris, an individual; one by E. A. Harris, as administrator, and; one by E. A. Harris, as next friend of his minor child. These suits were all consolidated for trial, and for the purpose of this opinion we will treat them as if they were one cause of action.

Joe Starr was in 1951 and at all times since a resident of Oklahoma, and it appears that most of his time is given to managing or conducting a traveling carnival show. In the early part of August 1955 Starr appeared with a show in Howard County and on the 6th of August the sheriff levied an execution on certain rides and equipment supposedly belonging to Starr, in an effort to collect the judgments above mentioned. A few days thereafter Starr, appearing specially, filed a “MOTION TO SET ASIDE JUDOMENT AND QUASH EXECUTION.” In this motion Starr stated that he had never been served with any process in the above mentioned cases. It was further stated that service was attempted upon him under the Arkansas Non-Eesident Motor Yehicle Act by having the sheriff of Pulaski County serve the Secretary of State, but that he did not receive notice from any source that snch process had been served upon the Secretary of State, and that he in fact knew nothing of the judgments until the 6th of August 1955. Starr further stated that he had never been notified that the complaints had been lodged against him and that he was represented by no attorney concerning the matter, and had no knowledge of the pending litigation. In the motion it was further stated that said judgments should be set aside for want of service of process upon him, and for fraud practiced upon him and the court. It will be noted that this motion contained no allegations with respect to a meritorious defense.

Upon the above motion both sides presented testimony to the court on the question of whether or not Starr had been properly served or whether he had been represented by an attorney, and both sides rested. The trial judge took the matter under consideration and it was agreed that he would announce his decision within five or six days, after the attorneys on each side had presented briefs.

Previous to the day on which the court was to render its decision Starr filed an amendment to the above mentioned motion in which he set out the facts purporting to show a meritorious defense to the original action. Among other things it was stated that the truck which was driven by Floyd Brown was the property and under the control of J. F. Brown and that Floyd Brown was the agent of J. F. Brown; that Floyd Brown was in no wise connected or associated with him [Joe Starr] or the Oklahoma Exposition Shows; that S. K. Clark owned the cook shack involved in the collision and that he was not an agent, servant or employee of Starr or the Oklahoma Exposition Shows, and; that neither he nor the Oklahoma Exposition Shows nor any of their agents, servants or employees had control of the aforesaid vehicles at the time of the accident.

The trial court, over the objections of appellant, allowed Starr to amend his motion, and to introduce his testimony in support thereof. Appellant saved his exceptions and refused to cross examine Starr or to introduce testimony. Thereupon the trial court set aside the judgment against Starr and quashed the execution.

Appellant makes no contention that the testimony, taken over his objections, does not show a meritorious defense. So, the questions presented for our determination are: (a) Was it error for the court to permit ap= pellee to amend his motion?; (b) Was appellee properly served in the original suit? and, if not; (c) Was appellee bound by the knowledge of his purported attorney?, and; (d) Did the court err in quashing the execution?

(a) Notwithstanding both parties had introduced testimony on appellee’s original motion [which contained no allegations of a meritorious defense], had rested and agreed to submit briefs, and the court had stated it would announce its decision on a day certain, we think the court did not abuse the discretion it had in the matter in allowing appellee to amend his motion, before decision day, to plead a meritorious defense. Ark. Stats. § 27-1160 provides, in substance, that the court may, at any time, in the furtherance of justice, allow a pleading to be amended by inserting material allegations so long as the amendment does not change substantially the claim or defense. This court has many times held that the trial court has wide discretion in allowing pleadings to be amended. In St. Louis, Iron Mountain & Southern Railway Company v. Power, 67 Ark. 142, 53 S. W. 572, it was held not error for plaintiff to amend his complaint by inserting new matter after the issues were joined and the jury impaneled, but defendant was entitled to a continuance. In Kempner v. Dooley, 60 Ark. 526, 31 S. W. 145, we said: “It was in the sound discretion of the circuit court to permit or refuse to permit the amendment offered by the appellee, Dooley, to be made at the time it was offered, and the court is of the opinion that the circuit court did not abuse its discretion in refusing to allow the amendment to Dooley’s answer, after the cause had been heard upon the pleadings and evidence.”

During the trial in Biddle et al., Receivers v. Riley, 118 Ark. 206, 176 S. W. 134, plaintiff offered evidence of future loss or damages when it was discovered the complaint contained no such allegation. The trial court permitted plaintiff to amend the complaint over objections. This court in sustaining the trial court said: ‘ ‘ The court had the right to permit an amendment at any stage of the proceedings which would not operate to the prejudice of the defendants in their preparation for the trial, and it was not suggested to the court that this introduced new matter which would render it necessary for defendants to have additional time in which to meet the issue.”

In Smith-Arkansas Traveler Company v. General Tire & Rubber Company, 182 Ark. 818, 33 S. W. 2d 712, the court said, at page 822 of the Arkansas Reports, “The fact that appellee attempted an erroneous theory did not disentitle it to amend under a correct theory.”

In Missouri Pacific Transportation Company v. Williams, 194 Ark. 852, 109 S. W. 2d 924, after the trial had begun, plaintiff filed an amendment to his complaint, alleging wrongful conduct on the part of the driver of the bus. The court allowed this amendment over the objections of the defendant, and it was contended in this court that this constituted reversible error. In disallowing this contention the court said: “We do not agree with this contention, the plaintiff had a right to amend his pleadings at any time, even after progress of the trial had commenced, however, within the sound discretion of the court. If such amendment was of the nature or kind as to cause surprise to the defendant to not reasonably be prepared to meet, it would have been proper, upon motion, to have continued the cause . . .”

In Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 654, it is stated: “We have repeatedly stated that the trial court is invested with broad discretion in allowing amendments to pleadings under Ark. Stats. § 27-1160 in order to effectuate the manifest purpose of the statute to permit the trial of litigation upon its merits.”

It is noted that appellant did not ask for a continuance when the court permitted the amendment to be made.

Also, the record shows that appellee informed the court that if he were not allowed to amend he would take a non-suit, and the court could have allowed him to do so since no counter-claim had been filed. See: Carpenter v. Dressier, 76 Ark. 400, 89 S. W. 89; Watts v. Watts, 179 Ark. 367, 15 S. W. 2d 997; Norton v. Hutchins, Chancellor, 196 Ark. 856, 120 S. W. 2d 358, and; Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583.

(b) Apparently an attempt was made to serve Starr originally pursuant to the provisions of Ark. Stats. § 27-340 or § 27-341. The former applies generally to a non-resident doing business in this state and the latter to a non-resident owner or driver of a vehicle on the highways of this state. Both require service of process on the Secretary of State and that a copy be registered to the defendant at his last known address. Here, however, there is no contention that the last requirement was complied with.

(c) Appellant ably contends that Jack Bradley, a licensed attorney, represented Starr as his attorney in the original proceeding. Bradley and Starr both deny the relationship. There is no direct proof that such relationship existed although there is considerable testimony indicating that it did. This presented a fact question to the trial judge and we cannot say he committed reversible error in reaching the conclusion he did.

Certain letters were introduced in evidence showing that Bradley had at one time represented S. K. Clark, J. F. Brown and Floyd Brown. In one letter Bradley wrote appellant’s attorney that he was withdrawing from the other cases and that later he might withdraw from Starr’s case. Bradley, who was at the time an attorney but is now a county judge in Oklahoma, explained this statement in this way. He said that he had been a friend of Starr for several years but at the time he received the registered letter containing copy of the complaint he did not know where Starr was and had not talked to him but thought that if Starr should hire him in the case he might represent him or he might not. Starr testified that he did not know that suit had been filed against him and that judgment had been rendered against him until the execution was served in August 1955. The clerk of the circuit court in 1951 entered Bradley’s name on the docket as attorney for Starr but she admits that neither Starr nor Bradley had told her to do so and that she was merely presuming. It is not contended that Bradley ever filed any pleading on behalf of Starr or that he took any part or steps in the original trial.

(d) Appellant makes the contention that the trial court erred in quashing the execution, and in support thereof cites Ark. Stats. § 29-509 and § 30-311. We conclude that no error is shown upon the part of the trial court. The first cited statute applies, in this connection, only to judgments that have been modified. The other section provides for the giving of a bond or security for the stay of an execution or order of sale pending a hearing on whether the execution shall be stayed or quashed by the trial court. The section does not apply to the facts in this case because here the trial court did not quash the execution until after he had heard all of the testimony and had set the judgment aside.

Affirmed. ■

Justice Millwee dissents.


text:
    Wilbourn v. Davis.
    5-913
    288 S. W. 2d 331
    Opinion delivered March 26, 1956.

      Melvin T. Chambers, for appellant.

      Keith & Clegg, for appellee.
   Paul Ward, Associate Justice.

Some time prior to 1954 Mrs. Margaret Wilbourn died leaving a will, one paragraph of wbieb reads as follows:

“SIXTH: My daughter, Mrs. Yerda W. Davis, with my consent has spent on my home on North Washington Street, Magnolia, Arkansas, some money for improvements and repairs. My daughter agreed to live in my home with me and help me for at least awhile. It is my will that for any expenses heretofore incurred in the making of any repairs and improvements to my said home or which she may hereafter make, not to exceed TWO THOUSAND DOLLARS ($2,000.00), and that is the limit which I have placed for such repairs and improvements, and I direct that she be paid, not to exceed the sum of TWO THOUSAND DOLLARS ($2,000.00) for. any repairs or improvements heretofore made or which she may hereafter make to my home as aforesaid. ’ ’

The above will was admitted to probate on January 5,1954 and on January 11,18, and 25,1954 the statutory Notice was published directing all persons having claims against the estate to file the same within six months.

On March 31, 1955 appellee, the daughter of Mrs. Wilbourn mentioned in the portion of her will above copied, filed an itemized statement of the amount she had been out for improvements and repairs on her mother’s home, showing said amount to be $1,950.37.

Appellant, Ira Wilbourn, an heir of the deceased and a beneficiary under the will, contested the above claim of appellee on three grounds. First, that the claim was barred by the Statute of Limitations, it being more than three years since appellee had made the repairs and improvements. Second, that more than six months had elapsed since the date of the publication of Notice until the filing of the claim as is required under Ark. Stats. Supp. § 62-2601. Third, that the claim was not verified as required by statute.

No testimony was introduced by either side, and the Probate Judge on the pleadings, ordered the executor of the will to pay appellee the sum above mentioned.

We have concluded that the action of the trial judge was proper. Under the- wording of Mrs. Margaret Wil-bourn ’s will it appears clearly to us that appellee was a legatee under the will and not a creditor of the estate. Mrs. Wilbourn could of course will her property to whom she pleased. Here she chose to leave some of it to her daughter because, apparently, she appreciated what her daughter had done, and not because she felt or was in fact under a legal obligation to do so. This being true it was not even proper for the executor to pay appellee until after all debts of the estate had been presented and paid. This is a complete answer to all of the grounds relied on by appellant.

Since appellee was a legatee and her claim is not based on a contract the Statute of Limitations has no application. This is specifically recognized in 34 C. J. S. page 133 under the subheading of “Effect of testamentary provisions” where we find “ ... a direction to the executor to pay a specified debt is clearly a recognition of the debt, and an expression of an intention that it shall be paid regardless of the Statute.” Also in 21 Am. Jur. page 649 we find, in this connection, the following statement: “Statutes limiting the time within which actions may be brought on claims against the estate of a decedent have been held inapplicable to actions for the recovery of legacies . . .” The sentence following the above quotation answers appellant’s second contention that the claim should have been filed within six months. It reads: "Statutes of non-claim have likewise been held inapplicable to snch actions.”

The above announcements and conclusions are in no way in conflict with this court’s opinion in the case of Kaufman v. Redwine, 97 Ark. 546, 134 S. W. 1193, where it was said: "The direction in the will for the executor to pay all just debts does not mean that he shall pay them without probate.” In the case under consideration we are not dealing with a debt but with a legacy.

Affirmed.


author: Sam RobiNsoN, Associate Justice. Paul Ward, Associate Justice

text:
    Five Lakes Outing Club, Inc. v. Horseshoe Lake Protective Association
    5-889
    288 S. W. 2d 942
    Opinion delivered March 26, 1956.
    [Rehearing denied April 30, 1956.]

      Daggett & Daggett, for appellant.

      Davis & Davis, Nance i& Nance and Dale & Fogle-man, for appellee.
   Sam RobiNsoN, Associate Justice.

Beginning in the year 1903, the appellant Five Lakes Outing Club bought about 3,000 acres of land on the peninsula of Horseshoe Lake in Crittenden County, Arkansas. There are four small lakes on the peninsula purchased by the club: Mud, Cleaver, Goose and Brushy Lakes; Porter Lake is also in that vicinity. In 1954, the clnb constructed a levee across Mud Lake at its west end, near the point where it joins Horseshoe Lake, and a levee across Cleaver Lake at its east end, near the point where it joins Horseshoe. The appellees filed this suit, asking that the Five Lakes Club he required to remove the levees. The chancellor held that the levees must be removed, and Five Lakes Club has appealed.

On appeal, appellant argues six points, but by reason of the conclusion we have reached, it is only necessary to discuss the issue of res judicata, and the issues of whether Horseshoe Lake is a navigable stream and whether Mud and Cleaver Lakes are a part of Horseshoe Lake. »

Horseshoe Lake is about seven miles long, and is shaped as its name implies. It is close to the Mississippi River and, prior to the year 1905, drained into the river from one end through a stream known as Lost River; later, this stream was called Buck Bayou. The north end of the peninsula of Horseshoe Lake is known as Happy Jack.

In 1905, the Mississippi River levee was constructed across Buck Bayou, thereby blocking the drainage from Horseshoe Lake and causing the lake to rise about five feet. This rise in the level of the lake inundated the end of the peninsula consisting of the area known as Happy Jack. About 1914, the Five Lakes Outing Club attempted to enclose Happy Jack with a fence, although at the time, there was water on it to a depth of several feet caused by the five foot rise of Horseshoe Lake. In the case of State Ex Rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 1014, this court held that, by reason of the fact that the waters of Horseshoe Lake had covered the land known as Happy Jack for a period of more than seven years, the State had acquired it by prescription.

In the late twenties, J. O. E. Beck and other riparian owners of land adjacent to Horseshoe Lake dug a ditch which was calculated to lower the level of the lake to the level existing prior to the construction of the levee across Buck Bayou. This court held that Beck and the others had the right to lower the lake to its former level, but the court was of the opinion that the ditch would not actually lower the lake more than three feet. Beck v. State ex rel. Attorney General, 179 Ark. 102, 14 S. W. 2d 1101.

As heretofore mentioned, there are four small lakes on the land purchased by the Five Lakes Club; all of these lakes connect with Horseshoe Lake in some manner; Cleaver Lake connects with Horseshoe on the east side of the peninsula, and Mud Lake connects with Horseshoe on the west side of the peninsula. It appears that in the rainy seasons, Horseshoe runs into Goose Lake and Brushy, Lake, and Horseshoe is connected directly with Porter’s Lake by Mosquito Bayou.

First is the question of whether the principle of res judicata applies. Appellees contend that the court held, in Thompson v. Parker, that the State had acquired Mud and Cleaver Lakes by prescription. There, it was stoutly contended by those seeking to establish State ownership by prescription that not only had the State acquired the area known as Happy Jack, but had also acquired Mud and Cleaver Lakes, This court held only that the State had acquired Happy Jack. Although those contending for State ownership maintained that the State had acquired Mud and Cleaver Lakes, as well as Happy Jack, there was no contention on the part of any one that Cleaver Lake and Mud Lake were a part of Happy Jack. It is perfectly clear that Cleaver Lake and Mud Lake were considered to be separate and apart from Happy Jack, and the opinion in Thompson v. Parker deals only with Happy Jack; hence, the issue of whether the State has acquired Mud and Cleaver Lakes by prescription is not res judicata.

Appellant next contends that Horseshoe is not a navigable stream, and, therefore, even if Mud and Cleaver Lakes should be considered a part of Horseshoe, appellants would own all of Mud and Cleaver since they own the land on both sides of those lakes. In Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, we held that Horseshoe Lake is a navigable stream. Once navigable does not mean always navigable. Parker, Commissioner of Revenues v. Moore, 222 Ark. 811, 262 S. W. 2d 891. But here, there has been no change in the character of the lake from the standpoint of navigability since the Bar-boro case was decided in 1915, hence we cannot now say that Horseshoe Lake is non-navigable.

Last is the question of whether Mud and Cleaver Lakes are a part of the bed of Horseshoe Lake. According to the evidence, Horseshoe Lake was just about at its normal level on May 21, 1955, and the water in Mud and Cleaver Lakes ranged in depth from 3 feet at the point where Mud joins Horseshoe Lake to 1.8 feet where Cleaver Lake joins Horseshoe; there are trees, stumps, and water lilies in both Mud and Cleaver Lakes. Occasionally, both of these lakes have gone dry for considerable periods, even since the dam was built across Buck Bayou. When Horseshoe is at its normal level, which appears to be at the elevation of 191.2 feet, it joins with both Mud and Cleaver Lakes, and undoubtedly the water is at an equal level in Brushy Lake, Goose Lake, and Porter’s Lake; in fact, one of the maps shows the level of the water to be 191.2 feet in both Porter’s Lake and Mosquito Bayou at the same time water is at 191.2 feet in Horseshoe Lake.

There would not be much more reason for saying that Mud and Cleaver Lakes are part of Horseshoe Lake than there would be for saying Porter’s Lake is part of Horseshoe. Horseshoe and Porter Lakes are connected by Mosquito Bayou. Obviously, the water level in Porter’s Lake is influenced by the water level in Horseshoe Lake, the same as the water level in Mud and Cleaver Lakes is influenced by the water in Horseshoe. In Medlock v. Galbreath, 208 Ark. 681, 187 S. W. 2d 545, this court held that Portia Bay, a stream 125 yards wide and 3% miles long, was non-navigable, and although connected with Black River by a running stream, it was not a part of the river.

There is no doubt about Mud Lake having existed for many years prior to the construction of the levee across Buck Bayou in 1905. One of the maps introduced in evidence is a contour map prepared by the United States Engineers in 1890 from a survey made in 1878 and 1879. The map shows Mud Lake, and at that time, the elevation of its south bank was 205 feet and this was also the elevation of the north bank, which is pretty much the same as the condition existing today. Photographs in the record made for the purpose of the trial of this case show well-defined banks on Mud Lake, the top of the bank being about ten feet above the water level. The elevation of the bed of Mud Lake is not shown in the 1878 contour map, but it is apparent from the map that the bed of the lake was covered with water at that time. The depth of Horseshoe Lake is shown in detail by cross-sections from one end to the other, but the depth of Mud Lake is not shown; neither is the depth shown as to Brushy Lake and Goose Lake, but the depth of Porter’s Lake is shown by cross-sections. The map shows the confluence of Mud Lake with Horseshoe Lake. Horseshoe is meandered, but Mud Lake is not.

When the levee was constructed across Buck Bayou in 1905, it caused the flooding of Happy Jack and raised the water level in Mud and Cleaver Lakes, as well as in Goose Lake, Brushy Lake, Porter’s Lake, Mosquito Bayou and Buck Bayou. No doubt, Mud Lake and Cleaver Lake have been dry, from time to time in dry seasons, but Mud Lake was not dry in 1878, when the contour map, above referred to, was made; most of the time following the construction of the levee across Buck Bayou, they have not been dry. But, they were dry in 1954; there is a picture in the record, taken that year, showing a tractor plowing in the bed of Mud Lake.

What we have here are two small lakes joining with a larger lake, and although the smaller lakes join with the larger, they are not a part of the larger. And a rise of the water in the larger lake, causing a rise in the smaller lakes, in no way affects the ownership of the smaller lakes. “It is said to be a universal rule governing tlie measurement of waters that where a water of a larger dimension is intersected by a water of a smaller dimension, the line of measurement of the first crosses the latter at the points of junction from headland to headland, and the existence of tidelands in the intersecting water in no respect affects the result.” 56 Am. Jur. 495.

The Five Lakes Outing Club owns title to the bed of Mud and Cleaver Lakes and, therefore, had the right to build levees across these lakes. Medlock v. Galbreath, supra.

Justices Holt, Millwee and Ward dissent.

Paul Ward, Associate Justice

(dissenting). I agree with the majority that the opinion in the Parker case is not res judicata, in favor of appellee of the issue in this case. Having established the above fact, it seems to me that the majority have made the fundamental mistake of attaching no further significance to the decision in the Parker case as it relates to the facts in this case. It should be obvious to anyone that the opinion in the Parker case should control the opinion in this case, aside from the question of res judicata, if the facts in the two cases cannot be definitely and logically distinguished. This distinction has not been made by the majority. It appears to me that practically every argument employed by the majority in this case could have been urged, and most of them were urged, in the Parker case.

The majority being unable to agree with the principal argument made by appellants in this case that the Parker case should be overruled, and by further admitting that Horseshoe Lake is navigable at this time they have thereby assumed but not discharged the obligation of demonstrating that the material facts in this case are different from the facts in the Parker case. In fact, I find nowhere in the majority opinion an attempt to make this distinction. If there is anything in the majority opinion which approaches such an attempt it appears to be the matters which I shall now mention but which, as I shall attempt to point out, are far from convincing.

(a) The majority point out that there are two other • lakes on the peninsula [Goose Lake and Brushy Lake] in addition to the two lakes here involved and state that they are all connected with Horseshoe Lake “in some manner.” Just what bearing- that fact has on the issue in this ease is not explained. Certainly the status of Goose Lake and Brushy Lake could have no more hearing on the title to the bed of Mud and Cleaver Lakes in this case than the status of Mud and Cleaver Lakes had on the title to the bed of Happy Jack Lake in the Parker case, and it seems to me the majority opinion admits that there was no significant bearing in the latter instance.

(b) It is noted by the majority that on May 21, .1955, that the water in Mud and Cleaver Lakes ranged in depth from three feet to 1.8 feet while “Horseshoe Lake was just about at its normal level. ’ ’ Apparently this was an attempt on the part of the majority to show that Mud and Cleaver Lakes are not navigable and therefore not a part of Horseshoe Lake, but this fact is not a paramount issue here. In the first place, under the Parker opinion, it is not necessary to show that the two lakes are navigable but merely to show that they are a continuation or a part of Horseshoe Lake which is conceded to be navigable. In the second place, under the Parker opinion the banks of Horseshoe Lake extend to the normal Mghwater mark and not to the “normal level.”

(c) The following statements appear in the majority opinion: “What we have here are two small lakes joining with a larger lake, and although the smaller lakes join with the larger, they are not a part of the larger. And a rise of the water in the larger lake, causing a rise in the smaller lakes, in no way affects the ownership of the smaller lakes.” The authority for the conclusion reached in the last sentence above quoted, taken from Am. Jur., may or may not be good law under .some circumstances but it cannot be accepted here because the ruling-in the Parker case [which the majority are unwilling to overrule] is just to the contrary under the facts in this case.

Justices Holt and Millwee concur in this dissent.


author: Per Curiam.

text:
    Jay M. Rowland v. The Bar Rules Committee of Arkansas.
    5-878
    288 S. W. 2d 330
    Opinion delivered March 26, 1956.

      Harry E. Meek, A. F. Triplett, J. H. Lookadoo, Harry T. Wooldridge, Cooper B. Land, Eugene A. Matthews and John Harris Jones, for petitioner.

      John P. Woods, Howard Cockrill, John D. Eldridge, Jr., J. B. Baggett, A. L. Smith, 0. A. Graves and Abner McGehee, for respondent.
   Per Curiam.

The petition by Jay M. Rowland for reinstatement, as an attorney, is denied. This denial is based on the following record: Affirmance by this court on June 28, 1948 of petitioner’s conviction óf a felony in the case of Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370 — reference is made to that case for a full statement of facts on which the opinion was based — the denial of Petition for Certiorari by the Supreme Court of the United States on March 4, 1949, and a subsequent denial of a similar Petition by the United States District Court for the Western District of Arkansas; the Bar Rules Committee’s Petition for Disbarment filed on May 2, 1949; this court’s Order of Permanent Disbarment on June 27, 1949; Petitioner’s application for Reinstatement and this court’s subsequent denial thereof on February 18, 1952; and the present Application for Reinstatement filed November 4, 1955.

It could serve no useful purpose to spread again on the records of this court the facts leading up to and bringing about petitioner’s permanent disbarment on June 27, 1949. In that order we said: “The clerk of this Court is directed to enter an order of permanent disbarment of Jay M. Rowland, under authority of 3 Ark. Stats. Secs. 25-401, et seq, and Amendment No. 28 to the Constitution. See Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370. Order effective as of this date. Mr. Justice Mill wee dissents from that part of the order making the disbarment permanent.”

We now decline to modify or change that order in any respect.

Justices Millwee and RobiNsok dissent.

Justice George Rose Smith not participating.


author: Lee Seamster, Chief Justice.

text:
    Barnard v. First Methodist Church of Mena.
    5-900
    288 S. W. 2d 595
    Opinion delivered April 2, 1956.

      James D. Stoker, Bonn G. Allison and W. C. Benton, for appellant.

      Nabors Shaw, for appellee.
   Lee Seamster, Chief Justice.

Mrs. E. Maria Barnard McKee died February 12, 1955. The appellee offered for probate as her holographic will the following instrument.

“To the Methodist Church of Mena, Arkansas.
“I, E. Maria McKee being of sound mind I give to this church for the purpose of educating youth to Christ ■— all my possessions to be disposed or used as tbe Board of Stewards and tbe Minister sees fit.
‘ ‘ Signed—
“Mrs. E. Maria Barnard McKee
1010 Janssen Ave.
Mena, Arkansas
“My band and seal
Dec. 29th, 1947”

Tbe Polk Probate Court ordered tbe instrument admitted to probate as tbe last will and testament of Mrs. McKee. Tbis appeal is from tbat order.

Tbe appellants are tbe brothers, sisters and a niece of tbe deceased, ber next of kin. Tbe appellants contend tbat tbe instrument, so probated as tbe decedent’s holographic will, is not testamentary in character and tbe court erred in considering extrinsic evidence to supply tbe animus testandi which was not apparent in tbe writing.

Tbe will was found in Mrs. McKee’s strong box, in an envelope which also contained a will dated 1945. Tbe previous will gave all of ber property to ber husband. Tbe husband bad died several months before tbe will here in question was written.

Tbe phrase “being of sound mind” is one usually used in writing wills; she disposed of all of ber property in tbe instrument, which would include ber food and clothing. Tbis provision could not reasonably become effective until after ber death. Tbe purpose for which she wanted all of ber property used was for “educating youths to Christ.” She delegated to tbe appellee tbe power to carry out tbe provisions of ber will.

We bold tbe instrument to be testamentary in character and tbat the animus testandi is apparent from tbe writing. Cartwright v. Cartwright, 158 Ark. 278, 250 S. W. 11.

Tbe appellants also contend tbat tbe proof was not sufficient to establish said will by three credible, disinterested witnesses because some of the witnesses were members of the appellee chnrch.

Mr. Bill Lauck Wood, a chnrch member witness, was an officer of the bank where the deceased transacted her business. Mr. William G. Spencer, a church member witness, was her lawyer — all such witnesses were mature and no gain would inure to any of them, individually, under the will. They were competent witnesses. See 57 Am. Jur. p. 243,- Sec. 320.

The statutory method of making the proof of a holographic will is found in Ark. Stats. 1947, Section 62-2117, Sub-Sec. B. The proof in this case was sufficient to establish the validity of the will. Sanders v. Abernathy, 221 Ark. 407, 253 S. W. 2d 351.

The court’s action in probating the will is supported by a preponderance of the evidence.

Judgment affirmed.