author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Carl E. ABBOTT et ux v. C. T. PEARSON Jr., et al
    74-227
    520 S.W. 2d 204
    Opinion delivered March 3, 1975

      Daily, West, Core & Coffman, by: Thomas A. Daily, for appellants.

      Pearson & Woodruff, by: Ronald G. Woodruff, for appellees.
   George Rose Smith, Justice.

The appellants, husband and wife, filed this suit to quiet their title to part of a recently abandoned railroad right-of-way and to cancel a deed by which the railway company had purportedly conveyed the disputed part of the right-of-way to the appellee Pearson. This appeal is from a final order sustaining a demurrer to the appellants’ complaint, for failute to state a cause of action. The key question is whether the property description in the 1954 deed by which the appellants acquired their land must be said as a matter of law to have conveyed no interest whatever in land lying within the boundaries of the railroad right-of-way. Inasmuch as we have concluded that such a rigid interpretation of the deed is not necessarily the proper construction of its language, we hold that the demurrer to the complaint should have been overruled.

According to the complaint, with its exhibits, in 1881 certain landowners executed a right-of-way deed to the Frisco Railroad’s predecessor, “for the purpose of constructing and operating said Railway and the necessary conveniences and uses thereto attaining.” The easement appears to have been 300 feet wide for a distance of 1,500 feet and 100 feet wide for the remaining length of the grantors’ 80-acre tract. The deed provided that if the grantee ceased to use the land for the specified purposes the title would revert to the grantors or their heirs or assigns.

Apparently both the right-of-way and contiguous lands were thereafter platted as lots and blocks within the city of Fayetteville. In 1954 the appellants purchased lots that were abutted at the rear by the railroad right-of-way. The warranty deed to the appellants described the property as a certain Lot 12 and part of Lot 11, “except that part of it in the Frisco Railroad right-of-way.” The railroad company was then still claiming the right-of-way.

In 1968 the Frisco abandoned part of its right-of-way and by quitclaim deed conveyed it to the appellee Pearson. (The deed to Pearson also included Lot 16, but in their brief the appellants have relinquished the claim which their complaint originally asserted to that lot.) We are not now concerned about whether the Frisco’s deed actually conveyed title to Pearson, for the appellants must recover on the strength of their own title.

The disputed question of law centers upon the quoted language in the appellants’ deed, “except that part of it in the Frisco Railroad right-of-way. ” At the outset it is essential to bear in mind the sound distinction, recognized by our decisions, between a description purporting to stop at the edge of an abandoned right-of-way and one purporting to stop at the edge of a right-of-way still in use. We considered the former type of description in Pyron v. Blanscet, 218 Ark. 696, 238 S.W. 2d 636 (1951), where the grantor’s deed to the appellees contained a metes and bounds description extending to the edge of an abandoned railroad right-of-way and thence along that right-of-way for a given distance. In reluctantly holding that the grant did not extend to the center of the abandoned strip we said:

The appellees insist that the legal effect of their deed is to convey to the center line of the abandoned right-of-way, and several cases from other jurisdictions are cited to support this contention. In practical effect there is much to be said in favor of this view, since the opposite rule often leaves in the grantor the ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way, street, alley, etc.
The appellants rely chiefly upon Fordyce v. Hampton, 179 Ark. 705, 17 S.W. 2d 869 [1929], and with some reluctance we concede that case to be controlling. There we held that although a conveyance of land bounded by an alley is usually presumed to carry title to the center line, the presumption does not arise when the alley has been vacated or abandoned. In the opinion we recognized the fact that two lines of authority exist and chose the rule that the grantee takes to the center of an abandoned easement only when the grantor explicitly expresses that intention. Those of us who are joining in this opinion do . not think the doctrine of the Fordyce case to be a desirable one, since a grantor does not ordinarily intend to retain title to an abandoned right-of-way that is of little practical value. But the Fordyce case laid down a rule of property .... If the rule is to be changed it should be done by legislation that operates prospectively rather than by judicial decision that is retroactive.

The rule, however, is — and should be — entirely different when the right-of-way is still in use. In that situation the conveyance extends to the center of the right-of-way unless a contrary intention is clearly stated. Thompson explains the sound reasons for the rule:

The intent to convey to the middle line of the highway arises from the presumption that the adjoining owners originally furnished the land for a right-of-way in equal proportions; and from the further presumption that such owner, in selling land bounded upon the highway, intended to sell to the center line of the street, and not to retain a narrow strip which could hardly be of use or value except to the owner of the adjoining land. The public policy of discouraging separate ownership of narrow strips of land is the basis for the rule.
***%•*
The presumption that a deed carries to the center of an abutting road applies to private as well as public roads. It also applies to railroad rights-of-way.

Thompson on Real Property, § 3068 (Repl., 1962).

As Thompson indicates, the rule favoring an extension of the conveyance to the center line of the right-of-way, “unless a contrary intention is clearly stated, ” rests upon two strong practical circumstances in its favor. First, that interpretation gives effect to what is almost certainly the intention of the parties. Among scores of similar statements the following comments upon the element of intention are typical:

In Barker v. Lashbrook, 128 Kan. 595, 279 P. 12 (1929), the court sensibly observed that “it is difficult to conclude that businesslike people, able to own, sell, and buy land, could reasonably have had in mind, at the time of the sale and purchase, the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency.”

In Brown v. Weare, 348 Mo. 135, 152 S.W. 2d 649 (1941), it was said: “We cannot conceive that it was the intention of the grantor to retain the title to the servient estate in the strip over which the right of way ran while disposing of the abutting land. Furthermore, as pointed out in Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379, the term ‘ “right of way” has two meanings in railroad parlance — the strip of land upon which the track is laid — and the legal right to use such strip.’ See also, Tiffany Real Property, 3d. Ed., § 772. The grantor must have intended to except the use only.”

Again, the principle was by no means overstated in Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir. 1939), where the court declared: “If construed as appellees would have it, a result both unreasonable and clearly unintended would have been produced.For it is inconceivable that Gregory, plaintiffs’ grantee, would have bought a tract of land split into two tracts by a small narrow strip which the Canal Company was not only authorized to use as a lateral, but if appellees are right, appellees would be entitled, under the restrictions in the Canal deed, to close up and occupy and thus cut appellant’s land in two.

“If construed as appellant contends it should be, every part of the deed would be harmonized and reconciled, and a result would be produced both reasonable and without doubt, in accordance with what the parties to the deed intended.”

Secondly, as Thompson, supra, says, there is a sound public policy discouraging the separate ownership of narrow strips of land. The Kansas court, after reviewing the development of the established rule at common law, aptly summarized the considerations of public policy: “Experience revealed that separate ownership of long narrow strips of land distinct from the territory adjoining on each side, was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.” Bowers v. Atchison, Topeka, & S.F. Ry., 119 Kan. 202, 237 P. 913, 42 A.L.R. 228 (1925).

We recognized and applied the rule in McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444 (1937). There the description in a deed ran in a southerly direction “to a street; thence in a westerly direction along the north line of said street” for a given distance. After recognizing the rule that a conveyance describing land as being bounded by a street or highway is generally held to indicate an intention to convey to the center thereof, we said: “When, in 1926, the appellant McGee purchased lot 8, so situated, and so described in the deed by specific measurements, projecting appellant’s south line to the north line of Nance avenue, she nevertheless acquired a fee to the center of Nance avenue. This, for the reason that there were no expressions showing an intent to limit the grant in a manner contrary to the general rule of construction. ” (Italics supplied.)

In the case at hand the chancellor reasoned that the pivotal language in the deed, “except that part of [the described lots] in the Frisco Railroad right-of-way,” could not be interpreted in any way except as an exclusion of the land itself from the deed. There are two answers to that point of view. First, a reference to the right-of-way can refer to the easement only, rather than to the entire fee simple. See Thompson, supra, § 3069. Secondly, such language may be intended to except the easement from the grantor’s warranty rather than to reserve the entire servient estate to the grantor. Thompson, § 3094. In this connection we may observe that the language of the granting clause in the appellants’ deed, “do hereby grant, bargain and, sell,” constitutes an express warranty in Arkansas. Ark. Stat. Ann. § 50-401 (Repl. 1971).

Judge William Howard Taft, in a statement that has been quoted many times, explained why the courts go to extreme lengths in construing narrowly such clauses as the one now in controversy: “The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard then the older cases.” Paine v. Consumers’ Forwarding & Storage Co., 71 F. 626 (6th Cir. 1895).

Yet there is nothing unfair about such a strict interpretation of the language, because the draftsman of the deed has been put on notice by scores of cases that he must express his intention to reserve the servient estate so clearly that no reasonable construction can avoid his meaning. In the case at bar the draftsmen excepted that part of the lots “in” the railroad right-of-way. That language appears to be no stronger than the explicit metes and bounds description which we construed in McGee v. Swearengen, supra, yet we held the McGee conveyance to extend to the center of the street. Similarly, in Kassner v. Alexander Drug Co., 194 Okla. 36, 147 P. 2d 979 (1943), the deed described only the north 120 feet of two lots, but the court held that the conveyance extended to the center of an abutting railroad right-of-way on the south. Again, in the Shell case, supra, the grantor described a tract as containing 162 acres, “except therefrom 5.6 acres taken up by the rights of way of the Neches Canal Company lateral, making 156.4 acres herein and hereby conveyed.” Despite the grantor’s arguable intent to convey only 156.4 acres, the court held that his deed conveyed the entire 162 acres, subject to the rights-of-way.

There is no end to the examples that might be found in the authorities (with a few contrary cases) to illustrate the rule that the grantor must clearly and unmistakably state his intention to reserve the servient estate underlying the right-of-way. We find it hard to believe that the draftsman of the deed to these appellants, had he been familiar with the law and had he meant to effect the reservation contended for by the appellee, would have contented himself with the language that he selected. It would have been so much simpler for him to have explicitly stated that the grantors were reserving to themselves the entire servient estate within the boundaries of the railroad right-of-way. Any number of methods of similarly expressing affirmatively the pivotal intention to reserve an interest come readily to mind.

Finally, the case reaches us on demurrer to the complaint. When the description in a deed is doubtful the court may put itself in the position of the parties and interpret the language used in the light of attendant circumstances. Schweitzer v. Crandell, 172 Ark. 667, 291 S.W. 68 (1927). Although we think the better construction of the deed now in controversy to be that argued for by the appellants, we ought not to foreclose the possibility that extrinsic proof may be of assistance. The record does not disclose what reservations or exceptions were contained in the chain of title between the execution of the right-of-way deed to the railway company in 1881 and the execution of the warranty deed to the appellants in 1954. We do not know how much of Lots 11 and 12 were subject to the Frisco’s easement. Although the Frisco’s deed to the appellee shows that the company’s “main track” is still upon that part of the original easement that is contiguous to the land purportedly conveyed by the Frisco to the appellee, we have no idea whether that fact indicates that the various references to the “right-of-way” may have had some reference to the strip occupied by the tracks rather than to land susceptible of being used for other railway purposes. All the foregoing questions relate to evidentiary matters not required to be included in the appellants’ complaint. It is clear that the case is not one to be decided upon demurrer, upon the sole basis of a 12-word clause in the appellants’ deed and without regard to what may prove to be enlightening extrinsic proof.

Reversed, the demurrer to be overruled.

Fogleman, Jones and Holt, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot accept either the result reached by the majority or its premises. I do not believe that it is appropriate to apply “center of the right-of-way” presumptions in this case. Furthermore, I cannot see how either “ownership of a narrow and inaccessible strip of an abandoned railroad right-of-way” or “a narrow strip which could hardly be of use or value except to the owner of the adjoining land” is involved.

In 1881, Isaac and Mag. J. Taylor conveyed to the predecessor of appellee St. Louis-San Francisco Railway Company a tract of land. The granting clause read:

...do hereby grant, bargain, sell and convey to said Railway Company the following described tract and parcel of land situated lying and being in the County of Washington, State of Arkansas, to-wit: The East half of the Southwest quarter of Section Nine (9) in Township Sixteen (16) north of Range thirty (30) West, to-wit: A strip of land three hundred feet in width beginning on the Northern boundary line of said tract and running South with the line of Survey of said Railroad fifteen hundred feet measuring two hundred feet in width on the west side of said line and one hundred feet in width on the east side of said line and equidistance from center of said Railroad Company tract and from said point North to South boundary line of said tract a strip one hundred feet in width running with said line of survey and measuring fifty feet on either side from the center of said railway company tract said railway company, its assigns and successors. . . .

It is clear that adjoining owners did not furnish equal proportions of the tract used for railroad right of way. The Taylors furnished it all. It is also clear that the “strip” is at least 300 feet (a city block) in width and 1500 feet (five city blocks) long, with an additional strip 100 feet wide for an additional distance. Although the exact dimensions of the tract now in dispute are not clear, the railroad company conveyed 0.44 acres of this right of way in the City of Fayetteville to appellee Pearson.

The habendum clause of the deed from the Taylors to the railroad company reads:

....to have and to hold the same forever for the purpose of constructing and operating said Railway and the necessary conveniences and uses thereto attaining to which we hereby bind ourselves, our heirs, executors and administrators forever provided, however, that in case said railway company shall fail or cease to use said land for said purposes then this grant and title shall revert to the undersigned grantors, their heirs or assigns.

The conveyance under which appellants claim reads as follows:

That we, Charles E. Hughes and Ruby E. Hughes, husband and wife, for and in consideration of the sum of One Dollar and other valuable considerations to us in hand paid by Carl Abbott and Helen Abbott, husband and wife, do hereby grant, bargain and sell unto the said Carl Abbott and Helen Abbott, husband and wife, and unto their heirs and assigns, the following described land situate in Washington County, State of Arkansas, to-wit:
Lot Numbered Twelve (12) and the North sixty (60) feet of Lot Numbered Eleven (11) in Block Numbered Five (5) of Archias-Bushnell Addition to the City of Fayetteville, as designated upon the recorded plat of said addition, except that part of it in the Frisco Railroad right of way.
This deed is made subject to a mortgage in favor of the Fayetteville Building and Loan Association the unpaid balance of which in the sum of $5,982.94 the grantees herein assume and agree to pay and also subject to a second mortgage in favor of Carl Ferguson, the unpaid balance of which in the sum of $690.00, the grantees assume and agree to pay as a part of the consideration of this conveyance.
To Have and to Hold the said lands and appurtenances thereunto belonging to said Carl Abbott and Helen Abbott, husband and wife, and unto their heirs and assigns, forever. And we, the said Charles E. Hughes and Ruby E. Hughes, husband and wife, hereby convenant that we are lawfully seized of said land and premises; that the same is unincumbered, and we will forever warrant and defend the title to the said lands against all legal claims whatever.

The fiction that it was the intention of appellants’ grantors to merely except the easement from their warranty is simply inconsistent with the plain language of the deed. There is no exception from the warranty. There is an exception from the grant. Whenever an exception is a part of the granting clause of a deed, it must be read in connection with the grant as a limitation therein. Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S.W. 345, 29 ALR 578. An exception is of some part of an estate not granted at all. Eye v. Baumann, 231 Ark. 278, 329 S.W. 2d 161. That,which is excepted is not granted at all. Beardslee v. New Berlin Light and Power Co., 207 N.Y. 34, 100 N.E. 434 (1912). Consequently, that part of it (Lot Numbered 12 and the North 60 feet of Lot Numbered 11 in Block Numbered 5 of Archais-Bushnell Addition to the City of Fayetteville) in the Frisco Railroad right of way was not granted to appellants. There are cases from other jurisdictions in which similar exceptions have been held to be an exception of the land and not just an easement. See e.g. Reynolds v. Gaertner, 117 Mich. 532, 76 N.W. 3 (1898) “except two and forth-sixths hundredths acres to the Chicago and Canada Southern Railroad”; Vincent v. City of Kalamazoo, 111 Mich. 230, 69 N.W. 501 (1896) - “except so much thereof as was set aside for sidewalk purposes”; Hannah v. Southern Pacific Railroad Co., 48 Cal. App. 517, 192 P. 304 (1920) - (1) “reserving a strip of land 100 feet wide for the right of way of the Southern Pacific Railroad Co. ” - (2) “reserving a 100-foot strip granted by Alfred Robinson, trustee, as a right of way for a railroad by deed recorded in Book, ...” - (3) “excepting therefrom a strip of land 100 feet wide containing 1.75 acres, being the right of way of said Southern Pacific Railroad Company” - (4) “containing 20.61 acres, less 1.75 acres, right of way of said Southern Pacific Railroad Company ...”

The use of the words “grant, bargain and sell” would hardly make the granting clause in this deed an express warranty, because the deed contains a general warranty clause which is indeed, much broader than the limited warranty provided by Ark. Stat. Ann. § 50-401 (Repl. 1971). This section itself contains certain exceptions and is inapplicable where the deed contains other clauses stating the claims against which the title is warranted. Doak v. Smith, 137 Ark. 509, 208 S.W. 795.

Furthermore, the use of those words does not create a general warranty. The covenant against encumbrances is limited to those done or suffered by the grantor. Seldon v. Budley E. Jones Co., 74 Ark. 348, 85 S.W. 778. There we said:

....In regard to the covenant against incumbrances the rule is thus stated: “The covenant against incumbrances embraces every right to and interest in the lands conveyed, diminishing the value of the estate, but not inconsistent with a transfer of the fee. It is not a mere covenant to indemnify, though often described as such, but an engagement that the grantor’s title is not incumbered, and is broken, if at all, at the instant of its creation.” 2 Warvelle on Vendors, §§ 971, 975. See Brooks v. Moody, 25 Ark. 452.

The easement for the railroad right-of-way was an encumbrance. Patton on Titles 1022, § 344 (1938); Thompson, Title to Real Property 71, § 61 (1919); Maupin on Marketable Title to Real Estate 851, § 305; 3 Flick, Abstract & Title Practice (2d ed.) 259, § 1951; 92 CJS 69, Vendor & Purchaser, § 206; 25 Am. Jur. 2d 418, Easements & Licenses, § 2; 57 ALR 1376, 1426, 1436; 4 Tiffany, Real Property 135, § 1004 (1920); 7 Thompson on Real Property (Perm. Ed.) 198, § 3720. The latter author says:

3721. Particular rights and easements as encumbrances. A right of way in existence when the grantor acquired title does not constitute a breach of a covenant that the grantor has not done and has not suffered to be done any act, matter, or thing whatsoever to encumber the land.

The railroad right-of-way was an encumbrance done or suffered by a remote grantor, not appellants’ grantor.

I do agree with the premise of the majority that the intention to except the fee of the right-of-way or to reserve an interest therein in the grantor must be clearly expressed. 1 ask “How could it have been more clearly expressed than by words in the granting clause ‘except that j>art of it in the Frisco Railroad right-of-way?” (Emphasis mine.)

I am incapable of expressing my conception of the correct holding in this case any better than the learned chancellor did. He said:

As successor in title to the right-of-way grantor, plaintiffs claim those portions of the lots formerly within the abandoned right-of-way, as being appurtenances to the lots. After abandonment of right-of-way by railroad, it conveyed its interest in the right-of-way to defendant Pearson by quit claim deed. Based on these allegations, the complaint asks removal of Pearson’s quit claim deed as a cloud on plaintiff’s title.
The demurrer, with other reasons not pertinent here, challenges the statement of a cause of action. In my opinion, the demurrer should be sustained. While such a demurrer admits all facts well pleaded, it does not admit conclusions of law. Further where there is a variance between the pleading and exhibits thereto, the exhibits control the pleading.
Paragraph 3 of complaint alleges that the conveyance to plaintiff was “specifically subject to a railway right-of-way in the defendant ... Railway Company.” Exhibit A to complaint is plaintiff’s deed, and part of the granting language in that deed is “except that part of it” (the described land) “in the Frisco Railroad right of way.” Exhibit B to the complaint is the right-of-way grant to defendant railway.
Thus, the grant to plaintiff of Lot 12 and part of Lot 11 was not merely subject to the right-of-way, but had excepted from it that part of the railway right-of-way. The effect is that such part as lay in the right-of-way simply was not granted.
Ordinarily, an exception in a deed description must be described with the same definitiveness and certainty that is required when describing the property granted. But, if the language of the exception provides information which, when supplemented by competent extrinsic evidence, satisfactorily identifies the excepted parcel, it is sufficient. Parker v. Cherry, 209 Ark. 908; Rye v. Baumann, 231 Ark. 278.
Here, a plaintiff’s deed description, together with the railway company right-of-way grant, furnish com-píete description of the excepted parts of the lots in question. The exception therefore removed the excepted portion from the grant to plaintiff, and on the face of the complaint, with exhibits, plaintiff has no title to such excepted portion.
The effect of plaintiffs’ authorities is simply to say that the grantor, where an exception appears to be made, is only recognizing the pro tempore or perpetual existence of a dominant estate of use, such as an easement or a common carrier right-of-way, and does not intend to except the servient fee from the whole grant. Practical reasons are advanced to support the conclusion, such as the economic unlikelihood of one deliberately excepting a narrow or irregularly shaped piece from a greater tract, and the proliferation of litigious causes likely to arise from such a matrix. Such considerations are well and good, and may lead to enun-ciations of a generally desirable public policy. But they do not answer particular cases, based upon particular facts, nor serve to alter more anciently grounded rules of conveyancing and titles.
It is recognized that a danger exists in becoming bound up in semantics, but: It is noted the language in cases cited are in terms of “less railroad right-of-way” or “excepting railroad right-of-way”. In the instant case, the language is “except that part of it in the Frisco Railroad right-of-way”. If words have not lost their meaning, the instant exception is considerably more than mere recognition of the physical existence of the right-of-way; it is a specific exception of the land, those parts of the platted lots that lie in the right-of-way.
Plaintiffs’ concluding point in their brief on motion for reconsideration is without merit. It offers, as argument, the legal result sought by the complaint. The whole suit is on the theory that the right-of-way is an appurtenance to plaintiffs’ grant. If there was no grant of the land in the right-of-way, the inclusion of “appurtenance” in the habendum clause would not supply the omission in the grant. An attempted exception in the habendum will not stand as against an entire grant in the granting clause (Mason v. Jarkson, 194 Ark. 236); no more will it supply a full grant where there is exception in the granting clause.

This case is virtually identical with Hall v. Wabash R. Co., 133 Iowa 714, 110 N.W. 1039 (1907). The language of the court there is particularly applicable and I would apply it here. That court said:

. .. .The plaintiff’s deed to the S.W. V* of the N.W. !4 of section 28 was from Athalia Carroll, who owned the land when the right of way was first located, and who deeded the same to the old Iowa Central Railroad Company. In her deed to the plaintiff, she excepted the land occupied by such right of way, in the following language, “excepting the part occupied by the right of way of the Iowa Central Railroad Company.” This exception is clear and unequivocal, and no title to the land embraced in the right of way passed. She deeded all of the 40-acre tract, except the land occupied by such right of way. We do not see how an exception could be more definite, or how the intent of the grantor could be made plainer. The railroad company then had a recorded deed of the right of way. An exception in the grant of the right of way alone would amount to nothing, and, unless the exception in question withheld from the grant the strip of land so occupied, it is meaningless. It was the soil itself that was in terms excepted from the grant, and not merely the right of way.
The exception before us is not repugnant to the grant, and must be held valid; and, if it be valid, the title to the land occupied as right of way remained in the grantor, with the like force and effect as if no grant had been made. Spencer v. Wabash Railroad Company (Iowa), 109 N.W. 453; Wiley v. Sirdorus, 41 Iowa, 224; 4 Kent, Com. 468; Moulton v. Trafton, 64 Me. 218; Marshall v. Trumbull, 28 Conn. 183, 73 Am. Dec. 667; Ashcroft v. Eastern R. Co., 126 Mass. 196, 30 Am. Rep. 672; Allen v. Scott, 21 Pick. (Mass.) 25, 32 Am. Dec. 238. It was therefore error for the court to instruct that the plaintiff was entitled, under his deed from Mrs. Carroll, to recover as to the 40 acres in question. Spencer v. Wabash Railroad Co., supra.

This case has been cited with approval in Studebaker v. Beek, 83 Wash. 260, 145 P. 225 (1915); Higgins Oil & Fuel Co. v. Victory Co., 230 F. 421 (1916); Las-Daub Realty Corporation v. Fain, 210 N.Y.S. 623 (1925); Marr v. Wood, 283 Ky. 428, 141 S.W. 2d 573 (1940); Corning v. Lehigh Valley Railroad Co., 14 A.D. 2d 156, 217 N.Y.S. 2d 874 (1961). Appropriate distinctions are made when the grant excepts a right of way and when the conveyance is subject to a right of way. See Moakley v. Blog. 90 Cal. App. 96, 265 P. 548 (1928); Corning v. Lehigh Valley Railroad Co., supra.

In spite of the language quoted from McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444, the decision, as I recall it, seems to be somewhat inconsistent with the result here, although I am not sure whether the majority is holding that appellants’ grant carried the “reversionary interest” to the center of the railroad right of way, to the outer boundaries of the lots described in the deed or clear across the right of way. There, Monaghan, as trustee, owned a quarter section of land. The south boundary line of the tract was in the right of way of State Highway No. 70. A right of way for a drainage canal 45.8 feet wide across the Monaghan tract adjoined the highway right of way on the north. The quarter section was then platted as Compress Subdivision. The plat showed the highway and located a street designated as Nance Avenue immediately adjoining the drainage district right-of-way on the north. A lot conveyed by Monaghan to the appellant McGee was bounded on the south by Nance Avenue. Subsequently, Monaghan conveyed the land in the right-of-way for the drainage canal to Doyle, who obtained permission from the drainage district to erect a building on the tract so long as it did not interfere with flowage through the drainage canal. Nance Avenue was later vacated by the City of West Memphis. Monaghan had quitclaimed all interest in Nance Avenue and his residuary interest in the drainage ditch to the property owners along the north side of Nance Avenue. Swearangen was the devisee of Doyle, the deceased. Appellant McGee claimed the reversionary interest in all three rights-of-way since her southern boundary was separated from the south boundary of the quarter-section only by these rights-of-way. Ms. Swearengen claimed that Ms. McGee had no interest in Nance Avenue and certainly none beyond the center line. This court held that Monaghan had retained the fee underlying the drainage district and highway easements and that his conveyance to Ms. McGee did not carry a “reversionary interest” beyond the center line of Nance Avenue and that his quitclaim deed to adjoining owners would not convey any interest to Ms. McGee because of the prior conveyance to Doyle.

It seems to me that the holding that Monaghan retained the fee underlying all these easements except one-half of Nance Avenue, where there was no reservation or exception anywhere in the conveyance to Ms. McGee, is not consistent with the holding here where there was.

I certainly disagree with the statement that the language here is no more explicit than that in McGee. In McGee, there was not even an attempt to express a reservation of the ser-vient tenement. Here there was a clear, concise, and, in my opinion, effective expression of intention. The ordinary scrivener would have expressed it no differently.

I should like to point out that, except for isolated extreme applications which would not even permit extrinsic proof, the principal authorities relied upon by the majority do not involve a situation like the one before us. The widely quoted language of Mr. Justice (then Judge) Taft in Paine v. Consumers' Forwarding & Storage Co., 71 F. 626 (6th Cir. 1895) involved deeds closing with the phrase, “Subject to all legal highways”. Judge Taft said of this:

.... There is not the slightest evidence that the land within the lot lines was subject to any easement of way, public or private, and unless this refers to the common way for all the lots sought to be reserved in Water street it is difficult to understand its meaning. If such is the reference, then it is clear that the grantors in the deeds supposed that they were parting with all their interest, not only in the land within the lot lines, but also in the street.

Furthermore, the author of that opinion also said:

. . . .Most of the decisions are rested on some perculiari» ty of phrase in the description, and it is very difficult to lay down any general rules for determing when the grantor has used language sufficiently explicit to exclude from the operation of the deed the fee to the center of the abutting road.

It should be noted that in Shell Petroleum Corp. v. Ward, 100 F. 2d 778 (5th Cir., 1939), the right-of-way was for an irrigation canal. The court construed an exception, stating that grants are liberally, and exceptions strictly, construed against the grantor and explained the physical situation thus:

This principle is especially vigorous in operation, where, as here, a construction is contended for which would produce the unreasonable result of splitting into two pieces a tract of land, which existed as one tract, subject only to an easement, and which, in reason, must be considered to have been conveyed as such, and not to have been split into separate parts, with a thin wedge of land between.

It should be noted also that the grantors of the right-of-way and the grantors who made the subsequent conveyance to the grantee, who was contending that there was no exception in his deed, were the same persons.

It seems to me that the appropriate distinction was made in Moakley v. Los Angles Pac. Ry. Co., 139 Cal. App. 421, 34 P. 2d 218, where the tract was conveyed “excepting therefrom so much as has been taken for the county road known as Vermont avenue, for the street known as Benefit street and for electric car lines across said land.” The grantor had previously granted a right-of-way to Los Angeles Pacific Railway Company, a corporation. The court said:

... .In cases where the clause referred merely to the right of way previously granted it has been generally held that it was not the intention to reserve the fee; but where the deed in terms excepts the piece of land occupied by the right of way it has been held that an exception was plainly intended and that title remains in the grantor subject to the easement.
. . . .However, when the language of the deed is equivocal the question of construction may rest upon extrinsic facts and circumstances. (Citations omitted.)

The court there determined that only an easement had been “taken.” I would agree that a similarly worded exception here would have been ambiguous, but I strongly feel that the deed we have before us “excepts the piece of land occupied by the right-of-way.”

I would affirm the decree.

I am authorized to state that Mr. Justice Jones and Mr. Justice Holt join in this opinion.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Laymon BUCK v. MATHEWS OIL COMPANY, INC.
    74-272
    520 S.W. 2d 194
    Opinion delivered March 3, 1975

      Laser, Sharp, Haley, Toung & Boswell, P.A., for appellant.

      Plegge, Lowe & Whitmore, for appellee.
   Lyle Brown, Justice.

This appeal is a sequel to our recent case of Buck v. Monsanto Co. & Mathews Oil Co., 254 Ark. 821, 497 S.W. 2d 644 (1973). The sole question presented on this appeal is whether appellant is obligated under a contractual indemnity agreement with appellee, Mathews Oil Company, to reimburse the latter for attorney’s fees and expenses incurred on appeal in Buck v. Monsanto, et al, supra.

The basic facts giving rise to this appeal are succinctly set forth in the court’s prior opinion. Appellee Mathews leased a service station in Arkadelphia from Monsanto Company. Mathews in turn subleased this station to appellant Laymon Buck. Both the lease and sublease contained contractual indemnity agreements whereby the lessee agreed to indemnify the lessors for any amounts they might be required to pay on account of legal liability incurred by them in the operation of the filling station.

An employee of appellant filed suit for personal injuries suffered while working on the filling station premises. Mathews and Buck were eventually joined as defendants. Both parties successfully defended the actions brought against them. Monsanto then filed a petition asking for reimbursement of its defense costs from Mathews under the contractual indemnity agreement. Mathews then cross-petitioned against appellant asking for its own costs of defense as well as reimbursement for any amounts it was required to pay Monsanto. The trial court granted both petitions and this court affirmed. That judgment has been satisfied and is not an issue on this appeal.

It is important to note that in Buck v. Monsanto, et al., supra, Buck failed and refused to defend Monsanto and Mathews. We held in that circumstance Buck was bound to reimburse Monsanto and Mathews for their costs of defense.

We reiterate our holding in Buck v. Monsanto, et al., supra, to the effect that since Buck declined to defend he was obligated to reimburse Monsanto and Mathews for their costs of defense at the trial level; however, we hold that the case presently before us is an effort to recover costs and attorney’s fees expended in enforcing the indemnity agreement. From an examination of the indemnity agreement we find no authority for the taxing of such costs. The key wording of that agreement is as follows:

Lessee agrees to protect, indemnify and save lessor harmless from any and all liability for loss, damage, injury or casualty to persons or property caused or occasioned by any leakage, fire or explosion of gasoline and kerosene or other products stored in any tanks or drawn through any pumps located at or on the above described premises whether due to imperfections in the equipment or any part thereof, latent or patent, and whether the same may arise from negligence or otherwise or from any and all liability arising from any other cause arising out of the use, occupancy, or possession of said premises by lessee.

A reading of the indemnity agreement clearly shows that there is no provision for attorney’s fees if the agreement is breached by one of the parties and the other is forced to file suit to enforce the contract. The indemnity clause specifically limits the liability incurred by Mathews “arising out of the use, occupancy or possession of said premises by lessee”. The legal expenses incurred by Mathews in enforcing the agreement, on the other hand, arose out of a breach of contract by Buck in failing to voluntarily pay these expenses. As such, these expenses are not included in the indemnity agreement. In Olmstead v. Rosedale Building & Supply, 229 Ark. 61, 313 S.W. 2d 235 (1958) we said: “Appellants’ other contention is that they were entitled to damages of SI,600 for attorney fees and other costs incurred in litigating the first suit. In the first place, there is no provision under our statutes and decisions to allow attorney fees and miscellaneous expenses as elements of damge in an action for breach of contract. [Citing cases]. Even if such items were recoverable, the right to them could and should have been asserted in the prior suit under the principles already announced.”

For cases from other jurisdictions supporting our position, see General Electric Co. v. Mason & Dixon Lines, Inc., 186 F. Supp. 761 (D.C. Va. 1960); Foley Co. v. Employers-Commercial Union, 488 P. 2d 987 (Ariz. App. 1971); Swiss Credit Bank v. International Bank, Ltd., 200 N.Y.S. 2d 828 (1960); and Grossblatt v. Kleinerman, 160 N.Y.S. 2d 80 (1956).

Reversed and Dismissed.


author: J. Fred Jones, Justice.

text:
    Richard R. Heath, Director, DEPARTMENT OF FINANCE AND ADMINISTRATION v. LITTLE ROCK PAPER COMPANY
    74-262
    520 S.W. 2d 196
    Opinion delivered March 3, 1975

      Karl D. Glass, Chief Counsel; Harlin R. Hodnett, Robert G. Brockman, James R. Eads, Jr., James R. Cooper, for appellant.

      Rose, Nash, Williamson, Carroll & Clay by: William Nash and James H. Wilkins, Jr., for appellee.
   J. Fred Jones, Justice.

The question on this appeal is whether certain specified paper, plastic and styrofoam products are exempt from the Arkansas Gross Receipts tax under Ark. Stat. Ann. § 84-1904 (i) (Repl. 1960).

The facts appear as follows: The appellee, Little Rock Paper Company, is a wholesaler of paper and plastic products in Arkansas. Many so-called “fast food” restaurants purchase from the appellee certain paper, plastic and styrofoam containers and other items which the restaurants use in dispensing their food and drink products to the buying public. The specific items involved in this case case are separately designated as follows:

“A. Paper and styrofoam cups in various sizes used for coffee, soft drinks and other liquids-
B. Paper and plastic lids for such cups;
C. Paper bowls and wrappers used for pies and pastries;
D. Paper boats and sacks used for French fried potatoes;
E. Paper plates;
F. Paper wrappers, boxes, and foil wrappers used as containers for sandwiches;
G. Paper and plastic containers for cole slaw, baked beans, etc.
H. Plastic lids for such containers.
I. Paper buckets and boxes used for fried chicken.
J. Paper and plastic straws and stirrers;
K. Plastic tableware and utensils;
L. Paper napkins and premoistened towelettes.”

The appellant, Richard R. Heath, as Director of the Department of Finance and Administration, collected the gross receipts tax from the appellee paper company on the sale of the above products. The tax was paid under protest and the paper company filed its petition in chancery to recover the tax so paid pursuant to Ark. Stat. Ann. § 84-1911 (Repl. 1960). The chancellor held the items exempt and on appeal to this court the Director relies on the following point for reversal:

“The various items of tangible personal property purchased by members of the Arkansas Restaurant Association are not exempt from Arkansas Gross Receipts tax pursuant to Section 84-1904 (i).”

Ark. Stat. Ann. § 84-1904 (i) (Repl. 1960), under which the exemptions are claimed in this case, reads as follows:

“Gross receipts or gross proceeds derived from sales for resale to persons regularly engaged in the business of reselling the articles purchased, whether within or without the State, provided that such sales within the State are made to persons to whom sales tax permits have been issued as provided in section 12 [§ 84-1913] of this act.
Goods, wares, merchandise, and property sold for use in manufacturing, compounding, processing, assembling or preparing for sale, can be classified as having been sold for the purposes of resale or the subject matter of resale only in the event such goods, wares, merchandise, or property becomes a recognizable, integral part of the manufactured, compounded, processed, assembled or prepared products. Such sales of goods, wares, merchandise, and property not conforming to this requirement are classified for the purpose of this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919] as being ‘for consumption or use.’ ”

It is well settled that the clear Legislative intent in the passage of § 84-1904 (i), supra, was to exempt purchases that are made for the purpose of resale, to the end that the same property will not be twice subjected to the same tax. Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W. 2d 65; Hervey v. International Paper Co., 252 Ark. 913, 483 S.W. 2d 199.

In Wiseman v. Ark. Wholesale Grocers’ Ass’n, 192 Ark. 313, 90 S.W. 2d 987 (1936), we denied a tax exemption upon the purchase of wrapping paper, paper bags and twine to be used in the retail sale of groceries. We reasoned in that case that grocers buy such wrapping materials for consumption in the course of their own business rather than for resale.

In McCarroll, Comm’r of Rev. v. Scott Paper Box Co., 195 Ark. 1105, 115 S.W. 2d 839 (1938), it was stipulated that Wortz Biscuit Company, a manufacturer, purchased paper boxes to be used in the sale of prepackaged cakes, cookies, etc. Wortz also sold the same products in bulk at a lower price. The paper boxes became a component of the product which was sold in the box to the jobber, retailer, and ultimately to the consumer. The cost of the box measured into, and became an element in the cost to the final consumer. In that case we said:

“It is clear that the Wortz Company sells at wholesale to a retailer a package of its manufactured products — not a quantity of cakes or cookies or crackers enclosed in a box it has consumed.”

In that case we also said:

“Expressed differently, the Wortz Company proposes to prepare, box, and offer in the market at wholesale the particular commodities in question. It buys flour, sugar, soda, salt, shortening, flavoring, etc., as ingredients. None of these components is taxable under act 154 when purchased for the purposes mentioned. The plan of sale, however, calls for wrapping or enclosure in individual cartons at the time of manufacture; and it is for the latter purpose that purchase of pasteboard boxes is made.”

The appellant in the Scott Paper Box Co. case relied on Wiseman v. Ark. Wholesale Grocers’ Ass’n, supra, but Wiseman was distinguished in the Scott Paper case in language as follows:

“In the Wiseman case the wrapping paper, bags, and twine were sold for convenience of retailers in manually wrapping or enclosing bulk commodities. The price of a dozen oranges, a peck of potatoes, a roast, and other merchandise customarily found in a retail grocery store, is predetermined either by weight or count, without reference to the attributes of delivery.”

In Hervey v. Southern Wooden Box, supra, we held that paper cups sold to the Coca Cola Bottling Company for use in its automatic vending machines were exempt from the tax, but that wooden boxes sold to the bottling company for the delivery of bottled drinks were not exempt.

In the case at bar the sales were made to various members of the Arkansas Restaurant Association primarily engaged in the “fast food” business. Mr. Wesley Hall, the president of Minute Man of America, Inc., testified that the Minute Man chain of restaurants operates on a self-service and pick-up basis under which food is purchased for consumption on the premises or to be carried out. He said that because of public demand for speed and convenience of service, Minute Man package services all its products in the various paper, plastic and styrofoam containers listed in the complaint, and pays sales tax on its purchases of the various items listed in the complaint. He said that paper cups, lids and straws are purchased solely for use in the sale of soft drinks at retail; that these drinks are compounded by Minute Man personnel and after the customer pays therefor, the Minute Man personnel puts the lid on the container, adds a straw and the assembled product is delivered to the customer. He said the components of a 16 ounce Coke currently cost Minute Man 6.6 cents; that the cup, lid and straw make up 55.3% of the cost, or 3.65 cents, and the cost of each component, including the container, lid and straw, is passed on to the consumer. He said the same procedure is used in the sale of a deep dish apple pie. He said the pie is placed in a single serving paper cup and a lid, a plastic spoon and paper napkin are added thereto. He said the same procedure was used in connection with such items as hamburgers and French fries. He said the French fries are sold in paper trays with wrapper, napkin and fork added, and that these compoents make up 20% of the product cost and 5.8% of the retail selling price. He said that the wrapper on the container for French fries served the same purpose as the lid on the beverage containers, and that the fork and napkin are provided solely for the convenience of the customer. He said that the food products sold by Minute Man are placed in the containers for delivery to the customer after the food itself is actually prepared.

On cross-examination Mr. Hall said that a customer at Minute Man has an option of receiving coffee in a paper cup, styrofoam cup, or a china cup, and that the charge for the cup of coffee is the same in spite of the containers available to the customer. He said that if a customer chooses not to take a lid or straw in the purchase of a soft drink, there is no price reduction for the product. He said that straws, napkins and items of that nature are not necessary items in preparing beverage products for sale but are offered to the customer as a convenience. He said the food wrappers for hamburgers and sandwiches have the name of the firm on them, and that the paper cups, napkins and paper bags used for carrying items out of the eating establishment have advertising printed on them.

On redirect examination Mr. Hall said that soft drinks sold by Minute Man automatically include a straw and lid and it is then up to the customer to decide whether or not the straw and lid leave the premises or stay on the premises.

Mr. Marvin D. Johnson, Jr., president of some of the Kentucky Fried Chicken outlets in Arkansas, testified as to the procedure in the sale of Kentucky Fried Chicken products substantially as did Mr. Hall. He said the Kentucky Fried Chicken products are placed in different size containers and sold to the customer under order designation such as “dinner box,” “bucket of chicken,” etc. He said that the dinner box contained three pieces of chicken, cole slaw, mashed potatoes and gravy, each in a four ounce container with a lid. He said two rolls, a spoon, a towelette and a napkin are also added, and the cost of the paper products is included in the overall price charged the customer. He said that potato salad and cole slaw were made up at the various Kentucky Fried Chicken outlets and delivered to the customer in a 16 ounce paper salad container with a plastic lid. He said that the Kentucky Fried Chicken outlets are not manufacturers of “fast food” products but are retailers; that the outlets purchase raw chicken and then cook the chicken and place it in the boxes for sale at each retail outlet. He said Kentucky Fried Chicken retail outlets do utilize paper bags for containers for boxed chicken, and that paper bags when so used, are not unlike the utilization of paper bags in retail grocery stores.

Mr. Richard W. Sherwood, president of W. G. W. Cor° poration, trading as “Burger King,” testified as to the procedure in packaging and selling that corporation’s products substantially as did Mr. Hall and Mr. Johnson. He said Burger King is a national chain of franchised restaurants and operates on a self-service and pick-up basis because the bulk of its trade is carry out. He said that each of the three Arkansas Burger King locations holds a gross receipts tax permit and pays a three per cent sales tax on the total revenue taken in at the three locations.

We conclude that the chancellor was correct as to items A, B, C, D, F, G, H and I, but on trial de novo we reverse as to items E, J, K and L. We are of the opinion, under the evidence in this case, the paper and styrofoam cups used for dispensing coffee, soft drinks and other liquids, and the paper and plastic lids for such cups; the paper bowls and wrappers used in the dispensing of pies and pastries; the paper boats and paper covers used for French fried potatoes; paper wrappers, boxes, and foil wrappers used as containers for sandwiches; the paper and plastic containers for cole slaw, baked beans, etc., and the plastic lids for such containers; and the paper buckets and boxes used for fried chicken are all items exempt under our reasoning in McCarroll v. Scott Paper Box Co. and Hervey v. Southern Wooden Box, supra, but we hold that paper plates; paper and plastic straws and stirrers; plastic tableware and utensils; paper napkins; brown paper sacks and premoistened towelettes are subject to the tax under our reasoning in Wiseman v. Ark. Wholesale Grocers’ Ass’n. supra.

The decree is affirmed as to items A, B, C, D, F, G, H and I, and is reversed as to items E, J, K and L.

Affirmed in part; reversed in part.

Holt, J., not participating.


text:
    W. O. COLLINS and Ruby COLLINS, Husband and Wife v. H. B. DUNCAN and Loretta R. DUNCAN, Husband and Wife
    74-276
    520 S.W. 2d 192
    Opinion delivered March 3, 1975

      Evans, Ludwig & Evans, by: Stanley 14Ludwig, for appellants.

      Crouch, Blair, Cypert & Waters, by: Michael II. Mashburn, for appellees.
   J. Fred Jones, Justice.

This is an appeal by W. O. Collins and Ruby Collins, husband and wife, from a judgment of the Washington County Circuit Court apparently sustaining a demurrer to the complaint filed by the appellees H. B. Duncan and Loretta R. Duncan, husband and wife. None of the pleadings are abstracted.

From the statement in appellants’ brief it appears that Mr. and Mrs. Collins sold some real and personal property to Mr. and Mrs. Duncan under a contract calling for monthly payments, and that Mr. and Mrs. Duncan ceased making the payments and abandoned the property. It appears from the statement that Mr. and Mrs. Collins filed suit for damages for breach of contract and in the alternative prayed that the contract be canceled and the parties be placed back in status quo. It further appears from the statement that Mr. and Mrs. Duncan demurred to the complaint contending that a provision of the contract provided for liquidated damages in case of default of payment; that this provision of the contract constituted the exclusive remedy available to Mr. and Mrs. Collins and that the complaint did not state a cause of action. The statement sets out that the trial court sustained the appellees’ demurrer and upon appellants’ refusal to plead further, the court entered an order dismissing the cause with prejudice.

The appellants have designated the points upon which they rely for reversal as follows:

“The trial court finding that a clause of the contract constituted a liquidated damages clause and therefore was the exclusive remedy of the appellants was clearly in error based upon a fair construction of the contract.
The trial court’s order sustaining appellees’ demurrer and dismissing appellants’ cause with prejudice constitutes a ruling contrary to established law.”

The appellants have designated two and one-half pages of their brief as “Abstract of Record,” but these two and one-half pages are in no sense an abstract of the record, they simply constitute a continuation of the statement of the case. The contract upon which this entire case is based and which Mr. and Mrs. Collins contend was breached, and which the appellees contend, and the trial court apparently agreed, contained a liquidated damages clause which the appellees relied on as an exclusive remedy, is not abstracted in the appellants’ brief.

The appellants cite numerous cases on contract law and pertaining to measure of damages, the intention of parties, and ambiguity in contracts, but we are unable to determine whether the decisions cited by the appellants are applicable to the contract here involved because we do not know what the contract contained without each member of this court being required to read the single record in this case.

In appellants’ reply brief they argue that they abstracted the contract on page eight of their brief, but on page eight of the appellants’ brief under “Argument” they argue their interpretation of a portion of the contract and quote from the contract as follows:

” ’. . . in either or all of said events, the sellers shall have the right to immediately retake possession of said property . . . and any payments theretofore made by the buyers shall be kept and retained by the sellers as rents or liquidated damages for the use and possession of the said property by the buyers.’ ”

Rule 9 (d) of this court does not require or permit the substitution of the entire record as an abstract as was the situation in Gary v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605, cited by the appellants in their reply brief, but we agree with the appellees’ statement that:

“Appellants’ argument contains several references to alleged ambiguities in the contract which was attached as an exhibit to their original complaint, but appellants’ ‘abstract of record’ fails to sufficiently set forth the wording of this contract to allow this Court to make an independent determination as to the existence of any alleged ambiguity.”

The requirements as to abstracting records on appeal to this court under Rule 9 (d) have been stated so many times in our published opinions it would appear that citation of cases should not be necessary, but, see Alfa Controls Engineering, Inc. v. Flagmaster, Inc., 257 Ark. 75, 514 S.W. 2d 223 (1974). In Key v. Ark. Power & Light Co., 228 Ark. 585, 309 S.W. 2d 190, we pointed out that the extent of the abstract required, depends on the nature of the question involved and if it’s one of fact, obviously a more complete abstract would be indicated than if the question is one of law. See also Tally v. Sanders, 234 Ark. 814, 354 S.W. 2d 736; Tudor v. Tudor, 247 Ark. 822, 448 S.W. 2d 17; Reeves v. Miles, 236 Ark. 261, 365 S.W. 2d 460; Ellington v. Remmel, 226 Ark. 569, 293 S.W. 2d 452; Thornbrough v. Danco Construction Co., 226 Ark. 797, 294 S.W. 2d 336; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S.W. 2d 51; Griffin v. Mo. Pac. Rd. Co., 227 Ark. 312, 298 S.W. 2d 55; Farmers Union Mutual Ins. Co. v. Watt, 229 Ark. 622, 317 S.W. 2d 285. See also the many additional cases cited under Rule 9 (d) found in Ark. Stat. Ann., vol. 3A, Cumulative Pocket Supplement (1973) at p. 106.

As we have so often pointed out in prior cases, one transcript of the record is filed in a case on appeal to this court and time simply does not permit each of the seven members of this court to search the single record for the pertinent provisions pertaining to points involved on appeal. In many instances the record is voluminous and to require each member of this court to ferret out from a single record the matter necessary for a clear understanding of the question in controversy, would create an impossible situation.

A good rule of thumb would be for an attorney to forget that he knows anything at all about the case, and examine his abstract of the record for a determination of whether it clearly sets out all he would need to know if he were required to decide the issues involved on appeal.

The judgment is affirmed.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    Fred Carroll LUCAS and Ronnie Ray LUCAS v. STATE of Arkansas
    CR 73-31
    520 S.W. 2d 224
    Opinion delivered March 3, 1975
    [Rehearing denied April 7, 1975.]

      Fred A. .Yeicth Jr., for appellants.

      Jim Cuy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

We have reconsidered this case in the light of Lewis v. City of New Orleans, 415 U.S. 130 (1974), as directed by mandate of the United States Supreme Court in its one sentence decision of April 15, 1974. The dissenting opinion of Mr. Justice Blackmun, in which the Chief Justice and Mr. Justice Rehnquist joined, sets out the facts in more detail than we did in our original opinion, Lucas v. State, 254 Ark. 584, 494 S.W. 2d 705. The facts are not germane to the issue now before us and they will not be recited again here.

The statute under which the appellants were convicted, Ark. Stat. Ann. § 41-1412 (Repl. 1964), was Act 30 of the Arkansas Legislature for 1909. It was entitled “An Act to Better Protect the Public Peace,” and it has served its purpose for more than 50 years without question as to its constitutionality until now.

We find no comparison between Ark. Stat. Ann. § 41-1412 (Repl. 1964) and the New Orleans Municipal Ordinance 828 M. C. S. § 49-7 struck down as unconstitutional in Lewis v. City of New Orleans, supra. The New Orleans Ordinance provided as follows:

“It shall be unlawful and a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.”

Aside from the ambiguity in the word “opprobrious”, as pointed out in Lewis, the New Orleans Ordinance would have made it unlawful and a breach of the peace to curse, revile or use obscene language toward or with reference to any member of the city police while in the actual performance of his duty regardless of when, where, or to whom the language was used or addressed. Furthermore, the New Orleans Ordinance provided a one sided violation. It was apparently designed to protect the police force against unguarded and overemphatically expressed criticism of its members in the performance of their duty regardless of when, or where, or to whom the language was addressed, and regardless of whether the language arose from incitement, anger or frustration. In other words, the New Orleans Ordinance protected members of the police force from the use of the described language toward, or with reference to them, but did not protect the public from the same language used by any member of the city police while in the performance of their duty even when addressed directly to a member of the public who might be involved. Such is not the wording, effect or intent of Ark. Stat. Ann. § 41-1412 (Repl. 1964). Mr. Justice Powell concurring in the result reached in Lewis v. City of New Orleans, supra, clearly sets out the constitutional deficiencies in the New Orleans Ordinance, but we are of the opinion its deficiencies do not apply to Ark. Stat. Ann. § 41-1412 (Repl. 1964) as interpreted and applied by the courts of this state.

Under Ark. Stat. Ann. § 41-1412 (Repl. 1964) the language must be profane, violent, vulgar or abusive and must be directed toward or about any other person in his presence or hearing. Such language must in its common acceptation be calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or assault. When a police officer is involved, this statute applies to language used by a police officer, as well as to the language used to a police officer. It is a matter of common knowledge that many assaults, both simple and aggravated, and also many homicides, have their origin in profane, violent, vulgar, abusive or insulting language addressed to or about another person in his presence or hearing. It is also common knowledge that such language used by members of the police, when addressed to a member of the public, results in resisting arrest and more important, results in a loss of respect for law and order.

In our original opinion, Lucas v. State, supra, we attempted to distinguish Ark. Stat. Ann. § 41-1412 (Repl. 1964) from the Georgia statute, § 26-6303, struck down in Gooding v. Wilson, 405 U.S. 518 (1972). We are still of the opinion that “opprobrious words or abusive language tending to cause a breach of the peace,” as was used in the Georgia statute, is much broader than the “profane, violent, vulgar, abusive or insulting language . . . which language in its common accéptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault,” as used in the Arkansas statute, § 41-1412, supra. Unlike the standard fixed by the jury in applying the Georgia statute as was-exemplified in the case of Fish v. State, 52 S. E. 737, where the Georgia Supreme Court held that a jury question was presented under the statute by the language: “You swore a lie,” as pointed out in Gooding, supra, this court (Arkansas Supreme Court) narrowed the language of the Arkansas statute as early as 1918 in the case of Holmes v. State, 135 Ark. 187, 204 S.W. 846. In Holmes the prosecuting witness, Hatch, was very much offended at the conduct of some boys in the community frequently calling him by the nickname “Taters” and other similar nicknames. In that case the trial court, among other instructions, gave one to the jury submitting to them for determination the question of whether or not the language used was such as in its common acceptation was calculated to arouse a person to anger and cause a breach of the peace. In reversing the judgment of the trial court and dismissing the charges, this court said:

“Counsel for appellant insist that the instruction should not have been given and that the evidence was not sufficient to warrant a conviction, in that the language used by the boys does not come within the statute. It will be observed that the statute defines the character of language constituting the offense as ‘profane, violent, abusive or insulting language * * * which language in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace,’ etc. The language used must be in its nature ‘profane, violent, abusive or insulting’ and it must be of that character which ‘in its common acceptation is calculated to arouse to anger the person about or to whom it is spoken or addressed, or to cause a breach of the peace or an assault.’ It is not sufficient that the language used gives offense to the person to whom or about whom it is addressed, but is must be that which in its ordinary acceptation is calculated to give offense and to arouse to anger.
In State v. Moser, 33 Ark. 140, the defendant was accused of directing toward another person the language ‘go to hell, God damn you,’ and in passing upon the question of the guilt of the defendant, this court said that the language used was certainly profane, but that it was a question for the jury to determine whether the words were used under such circumstances as was calculated to arouse to anger the person to whom the words were addressed. In the present case the word used towards Hatch was neither profane, violent, abusive nor insulting, and was not in its common acceptation calculated to arouse a person to anger. The fact that Hatch became offended at the application to him of the nickname does not make the language such as is insulting according to its common acceptation. * * * It did not carry the implication of unlawful conduct or moral turpitude on the part of the person toward whom it was used. It was undoubtedly offensive to him and he showed his irritation repeatedly, but the statute was not intended to reach cases where persons by the use of harmless nicknames or in a spirit of fun make use of nicknames or expressions which, although they are not calculated in their common acceptation to arouse anger, do in fact give offense because of the peculiar sensibilities of the person to whom or about whom the words are used. It may be considered bad taste for men or boys to indulge in such practice, but the law was not intended to reach such cases. We know that even innocent amusement at the expense of others sometimes brings about a breach of the peace, but those are not the things which the law meant to reach by this statute. It is only the language of the kind referred to which is calculated in its ordinary acceptation to arouse to anger or cause a breach of the peace that the statute denounces.
Our conclusion is, therefore, that the testimony in the case, given its strongest force, does not establish an offense under the statute. The judgment of the circuit court is reversed and the charge against each of the defendants is dismissed.”

Thus is is seen, and we so hold, as was indicated in Smith v. Moser, supra, that before a person may be properly charged with an offense under the statute, the profane, violent, vulgar or abusive language alleged to have been employed must be such as in its common acceptation is calculated to arouse to anger, etc. and the only question for determination by the jury is whether the accused employed such language, and whether it was calculated to arouse to anger, etc. Surely no one would suggest that in order to pass constitutional muster in sustaining the convictions in the case at bar, it would be necessary for the statute to set out the exact language employed by the appellants in this case. We adhere to our former opinion that Ark. Stat. Ann. § 41-1412 (Repl. 1964) should be measured by the reasonable and common sense rules announced in Chaplinsky v. New Hampshire, 315 U.S. 568.

We conclude, therefore, that Ark. Stat. Ann. § 41-1412 (Repl. 1964) is constitutional in the light of Lewis v. City of New Orleans, supra, and that the judgment of the trial court in this case should be reaffirmed.

The judgment is affirmed.

George Rose Smith, Brown and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. As I read Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. ed. 2d 214 (1973), Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. ed. 2d 408 (1971) and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. ed. 1031 (1942), they hold that a statute punishing spoken words is overly broad and invalid when it can be applied to utterances other than those which “inflict injury or tend to invite an immediate breach of the peace.” Of course, our statute in addition to fighting words, as defined in Lewis v. City of New Orleans, supra, punishes the use of profane, violent, vulgar, abusive or insulting language which in its common acceptation is calculated to arouse to anger, Holmes v. State, 135 Ark. 187, 204 S.W. 846 (1918) and State v. Moser, 33 Ark. 140 (1878). As pointed out in Cox v. Louisiana, 379 U. S. 536, 85 S. Ct. 453, 13 L. ed. 471 (1965), speech that arouses or stirs people to anger is protected by the Constitution of the United States.

Consequently, it appears to me that the one sentence opinion by the majority of the United States Supreme Court gave us a sufficient guide to determine the constitutionality of our statute, Ark. Stat. Ann. § 41-1412 (Repl. 1964), when it referred us to Lewis v. City of New Orleans, supra.

For the reasons stated I would hold the statute invalid.

George Rose Smith and Brown, JJ., join in this dissent.