author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    Hiram SMITH et ux v. George E. MEFFORD et ux
    5-4345
    420 S. W. 2d 848
    Opinion delivered November 27, 1967

      J. Marvin Holman, for appellant.

      Edward H. Boyett, for appellees.
   Lyle Brown, Justice.

This is a boundary line case. Smith and Mefford orally agreed on a line. Smith purported to rescind the agreement and brought this suit to establish his title by deed and adverse possession. The chancellor denied relief to Smith, holding that the oral agreement fixed the common boundary. Appellant Smith here contends that the true boundary line was never in doubt; that there was no consideration; and that the agreement was rescinded by the parties.

In 1958 Hiram Smith, bought the major portion of a forty-acre tract in Johnson County. His deed called for the west 33 acres. Shortly after June 1966, Mefford purchased the balance of the forty from Smith’s neighbor. Mefford’s deed called for the easterly seven acres. A survey made duripg the period of boundary line discussions disclosed a “short forty.” That revelation made a contribution to the misunderstanding which brought about this litigation.

We start with the premise that a question developed between these neighbors about the location of the boundary line between their lands. It came about ydien Mefford approached Smith about straightening and rebuilding a meandering fence. Smith advised that he would first like to have a survey in order to put it on a straight line. Mefford testified that Smith stated the old fence was not actually on the line. Before the line was surveyed the two landowners, according to the surveyor, agreed that the fence would be established on the line determined by the surveyor to be the boundary. The surveyor determined the true boundary line to be several feet west of the old fence. That line would of course result in the loss of acreage by Smith, who had for some time occupied up to the old fence.

Smith was disappointed at the anticipated loss of acreage and in fact disputed the accuracy of the survey. Since Mefford would of course gain acreage on the basis of the survey, his first expression was they should abide by what he considered to be their agreement. Mef-ford, however, indicated that he would consider a compromise rather than the expense of a lawsuit. In fact, Mefford offered to pay Smith, for the land between the old fence and the surveyed line, but Smith declined. It was then that the landowners, in the presence of the county surveyor, entered into an oral agreement advanced by Smith. He proposed that the boundary fence be constructed at a distance six feet east of the surveyed line; that Smith would furnish the wire and the labor of himself and a helper; and that Mefford would furnish the posts and a laborer. Actually, the extra six feet would place the fence on a line where it had originally stood. Smith and the predecessor in title of Mefford had moved the fence to avoid a flooding problem. This is apparently the reason Smith thought he was entitled to the six feet; it strongly indicates Smith believed that line to be the true boundary — six feet east of the surveyor’s line.

The day following the agreement on the line location the work was begun. Smith and two helpers started at the agreed south corner and proceeded, without incident, to set posts for a distance of approximately 300 feet. At that point and on the second day of work, Mef-ford arrived and complained that a straight line was not being followed, to his disadvantage. A heated argument ensued. Smith called off the work project and went home, declaring the agreement at an end. A few days later Mefford completed the project. However, the fence veered slightly to the west from the point where Smith stopped the work and came out on the north end some two feet from the northern point agreed upon. It was then that Smith filed this suit, claiming title by deed and by adverse possession to all lands inside the old irregular fence line.

The chancellor held that a boundary line had been agreed upon; that Mefford should be required to relocate that part of the fence which protruded over the “six-foot line”; that since Mefford supplied the shortage of posts, most of the labor and the wire, ownership of the fence should be vested in Mefford unless Smith shared the moving cost. The only exception made by the chancellor to the “six-foot line” was a few feet on the north end where a gully required a slight modification. That slight change is not here questioned. We hold that the chancellor’s findings were in all respects correct.

Unfortunately, the need for straightening an irregular fence line developed into a dispute over the actual property line. There were three possible true boundary lines: (1) the line from which Smith and Mefford’s predecessor removed the boundary fence; (2) the irregular fence which Smith relied upon in his complaint; and (3) the line fixed by the county surveyor. In that situation our court has many times held that agreements between adjacent landowners as to their boundaries are encouraged. “Convenience, policy, necessity, justice, all unite in favor of such an amicable settlement.” Krutz v. Faught, 204 Ark. 1036, 166 S. W. 2d 655 (1942). Settlement by parol agreement is valid on the principle that the agreement does not pass real estate from one party to another; it merely defines the boundary lines to which the respective deeds extend. Sherman v. King, 71 Ark. 248, 72 S. W. 571 (1903). Mutual concessions by the parties are sufficient consideration. Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723 (1910).

In the fact situation before us, we find a state of uncertainty as to the true boundary line; that there was a bona fide dispute as to its location; and that the parties agreed on a dividing line. The beginning and ending points were marked. Labor and materials were advanced by the parties. Installation of the fence was started and posts were erected extending more than 300 feet.

Restatement, Contracts, § 196 (1) reads as follows: “An oral agreement between owners of adjoining tracts of land fixing a dividing boundary the location of which was honestly disputed, ceases to be within Class IV of § 178 [Statute of Frauds] and becomes enforceable when the agreed boundary has been marked or has been recognized in the subsequent use of the tracts, or when other action has been taken by either party in reliance on the agreement(Italics supplied.)

In Sherman v. King, 71 Ark. 248, 72 S. W. 571 (1903), there was an oral agreement as to a disputed boundary line. All elements of the agreement were performed except the removal “of that portion of the boundary fence that did not conform to the line established between them by this agreement.” This court held that Sherman could hold King to the agreement if he could prove that the land which Sherman sought to recover by suit was within the lines established by the agreement. The case was reversed for lack of sufficient proof on that point; however, this court’s pronouncement became the rule of the case on remand.

In Garvin v. Threlkeld, 190 S. W. 1092 (Ky. 1917), it was said:

“While the validity of parol agreements to settle disputed boundaries was long resisted on . the ground that, in effect, they passed the title to real property without the solemnities required by the statute, it is now settled that, where the dividing line is uncertain and there is a bona fide dispute as to its location and the parties agree on the dividing line and execute the agreement by marking the line or building a fence thereon, such an agreement is not prohibited by the statute of frauds, nor is it within the meaning of the provisions of the law that regulate the manner of conveying real estate.”

The performances by the parties, which we have enumerated, bring the case within the law just recited. Therefore Smith could not rescind the contract by abandoning the construction of the fence.

Affirmed.

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

John A. Fogleman, Justice,

dissenting. I respectfully dissent. The learned chancellor made a positive finding that the old fence line constituted a boundary by acquiescence for many years. This fact is undisputed. He did not make any finding that there was an uncertainty as to the dividing line nor did he find that a dispute as to its location existed between appellants and appellees. I submit that the clear preponderance of the evidence is that there was no uncertainty or dispute as to this boundary line. One or the other is essential to any boundary by agreement.

Ollie Lindsey was the predecessor in title to appellants and her brother was predecessor in title to appel-lees. When she sold her property to Smith, he was put into possession up to the fence which had constituted the boundary between her and her brother for nearly forty years. She stated that so long as the fence had been there, there never had been any dispute about that being the property line.

Appellant Hiram Smith said that he took possession up to the fence and maintained it. He said that appellee Mefford recently asked if he would go in with him to build a new fence. Smith said that he then agreed to furnish the wire and one man and himself if Mefford would furnish the posts and one man and they would try to straighten out the old fence. His intention was to build a new fence as near as possible to the old fence but to make it straight. He and Tate, the county surveyor, agree that Tate was called to make a survey only because the parties wanted to build a straight fence. While Mefford says the surveyor was called to establish the property line, he admits that Smith called him. Mefford does not even say that the surveyor was to establish a new property line. He does claim that Smith said he was going to have the property surveyed and “make a line fence of'it.”

Mefford does not contradict Smith about the agreement as to building the fence, but he affirmatively answers leading questions as to whether there was a dispute about the line. He never stated what the dispute was. He admits that all he wanted to do was straighten out the old fence and that he didn’t claim to own anything west of it. He said that Smith told him that he could not straghten up the old fence because it was not on the line. On redirect examination Mefford said that Smith admitted that he didn’t own up to the fence and knew it wasn’t on the line. This certainly was not a dispute. Appellee Mefford admits that there was no dispute about the property line until it was surveyed. Then he says it Avas not until the new fence was half-built. So there Avas no dispute about the location of the boundary line. Even after Tate’s admittedly erroneous survey, Mefford tried to buy the strip of land between the old fence and the survey line from Smith. Although there is testimony that the parties first agreed to build the neAv fence on the erroneous survey line, and later agreed to build six feet east of the survey line, there is no testimony about a dispute until the fence was actually commenced. I respectfully submit that this background will not support an “agreed bóundary” and that consequently the court’s decree should fall.

The rules as to “agreed boundaries” in Arkansas have been stated and restated dozens of times. They were set out in Clauss v. Baumgartner, 227 Ark. 1080, 305 S. W. 2d 116, which quoted from Malone v. Mobbs, 102 Ark. 542, 145 S. W. 193, 146 S. W. 143, as follows:

“In the case of Payne v. McBride, 96 Ark. 168, we held: ‘Where there is doubt, dispute or uncertainty as to the true location of the boundary line the parties may by parol fix a line which Avill, at least when followed by possession Avith reference to the boundary so fixed, be conclusive upon them although the possession is not for the full statutory period.’ To the same effect is O’Neal v. Ross, 100 Ark. 555, 140 S. W. 743; Butler v. Hines, 101 Ark. 409, 142 S. W. 509.”

In Randleman v. Taylor, 94 Ark. 511, 127 S. W. 723, this court said:

“* * * It is only where the true line is unknown or is difficult of ascertainment, and the parties establish the line to settle a disputed and vexatious question as to the boundary line between them, that the agreement is binding.”

Here there is lacking another important element in the establishment of this type of boundary. The parties certainly never went into possession of their respective lands according to the agreement. The filing of this lawsuit was the immediate outgrowth of appellees’ building or completing of the fence. I do not believe that it can be seriously urged that the unilateral possession of Mefford meets the test. "While the adoption of a new rule validating these agreements when the boundary has only been marked, or other action taken pursuant to the agreement by the parties might be thought by some to be wise, I do not think so. "We have always followed the rule that parol agreements relating to boundaries, even when made under the required circumstances, must be carried into execution in order to be binding upon the parties. In Stroud v. Snow, 186 Ark. 550, 54 S. W. 2d 693, this court reversed a jury verdict based on such an agreement because of the court’s error in instructing the jury that just such an agreement as Mefford alleges was made in this case was sufficient. There the evidence was that appellant agreed that when the line was run by the county surveyor, he would put his fence back on the true line and reiterated his agreement when the Une was run. There this court said:

“* * * The jury found for the defendant and settled the disputed question of fact against the appellant, so that we must treat the agreement as established. This presents the single question, is the agreement sufficient to divest the title to the land in controversy acquired by lapse of time and the adverse possession of the appellant beyond the statutory period? The general rule is stated in 2 C. J., § 559, p. 256, as follows: ‘A title which has ripened by adverse possession cannot be divested by parol abandonment or relinquishment, but must be transferred by deed.’ This rule is recognized by this court in Hudson v. Stillwell, 80 Ark. 575-578, 98 S. W. 356, where we said: ‘If the occupancy was adverse for the statuory period, it operated as a complete investiture of title, and a subsequent ex-ecutory agreement to readjust the boundary lines or any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title.’ To the same effect are the decisions in Parham v. Dedman, 66 Ark. 26, 48 S. W. 673; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; O’Neal v. Ross, 100 Ark. 560, 140 S. W. 743; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399; Blackburn v. Coffee, 142 Ark. 430, 218 S. W. 836; Dermott v. Stinson, 144 Ark. 208, 222 S. W. 54, cited by the appellee.
In the recent case of Haskins v. Talley, decided by the Supreme Court of New Mexico, November 17, 1923, and reported in 29 N. M. 173, 220 Pac., at page 1007, our cases are reviewed, and the doctrine therein announced is approved as the general rule. See also Lusk v. Yankton, 40 S. D. 498, 168 N. W. 375.”

The court then goes on to reverse on the basis that the contract was executory, not executed. I submit that, until this fence was built by the parties and the extent of their right of possession delineated by it, the contract was still executory.

The majority implies that the only reason for the distinction is that the executed agreement takes the case out of the statute of frauds. This assumption seems unfounded to me. We have repeatedly held that boundary agreements are not contracts for the sale or conveyance of lands or any interest therein. See, Sherman v. King, 71 Ark. 248, 72 S. W. 571; Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710. The Sherrin ease states the rule as clearly as it could he stated:

“The agreements in cases of this kind do not operate as a conveyance, so as to pass title from one to another, but they proceed upon the theory that the true boundary line is in dispute, and that the agreement serves to fix the true line to which the title of each extends. The parties thereafter hold up to the line as they did before by virtue of their respective deeds. The theory is that the parties have simply by agreement settled the location of their boundary lines, which was in doubt, instead of having the court settle it for them. So when they orally agree upon the line, and the agreement is accompanied by possession to the agreed lines, such agreement will be valid and binding.”

In the Robinson case this court quoted the United States Supreme Court’s statement, “that such agreement is ‘not a contract for the sale or conveyance of lands. It has no ingredient of such a contract. ’ ” In view of these holdings, a simple reading of the statute of frauds' [Ark. Stat. Ann. § 38-101 (Repl. 1962)] shows conclusively that it could not have any application because this is not an action “* # * to charge any person upon any contract for the Sale of lands, tenements and hereditaments, or any interest concerning them; # * * . ” This view is supported by an overwhelming weight of authority. See, 12 Am. Jur. 2d 619, Boundaries, § 84.

Even if the statute of frauds could be said to apply, there is no evidentiary basis here for taking the case out of the application of this statute. The agreement about the method of construction of the fence was entered into before any dispute arose. Smith says it was made when Mefford first came to him and when their only objective was to straighten out the fence. Mefford does not contradict him and agrees with him as to the substance of that agreement. As hereinabove pointed out, even Mefford does not contend that there was a dispute about the boundary before the fence was half-built. Consequently, the agreement as to contributions to the fence building did not constitute any part of a boundary agreement, or any such “part performance” as to take the case out of the statute of frauds. Certainly it did not make the agreement ah executed one.

In Sherrin v. Coffman, supra, the court again pointed out that the binding effect of these agreements depended upon their execution. There it was said that the request of an adjoining owner to remove a house from the disputed strip falls short of establishing an agreement or the execution thereof. The validity of this rule distinguishing executory and executed contracts was recognized in Dewees v. Logue, 208 Ark. 79, 185 S. W. 2d 85, and Adkins v. Willis, 217 Ark. 287, 230 S. W. 2d 32.

Perhaps basically my disagreement with the majority is based upon a different understanding of the facts. In addition to the matters already pointed out, the majority states that the surveyor determined the true boundary line to be several feet west of the old fence. I do not so understand the testimony. The surveyor said that the line run by him was erroneous and that if he had run it correctly, it would have been very nearly the old fence line. Mefford récognized this and offered to purchase the strip between the surveyor’s line and the old fence line.

In setting up what is asserted to be the uncertainty as to the boundary line, the majority refers to three possible lines. I have already pointed out the fallacy of relying on the surveyor’s line as a possible line. I do not understand the significance of a line from which Smith’s and Mefford’s predecessors in title removed a boundary fence forty years ago. The fact that this was intended as a “swap” or “conveyance” between a brother and sister is inescapable. When these two possibilities are elminated, only one possible line remained. The fence to which both Smith and Mefford took possession was so conclusively the boundary between the two tracts that the chancellor correctly foreclosed the presentation of any further testimony on that subject.

I would reverse and remand with directions to the court to grant the relief sought by appellants.

I am authorized to state that Harris, C. J., joins in this dissent.

      The surveyor said that the line would have been close to the old fence if he had located it correctly. His error was due to his failure to recognize that the tracts were in a “short forty.”


source: Caselaw Access Project

author: J. Fred Jones, Justice. John A. Fogleman, Justice, Conley Byrd, Justice,

license: Public Domain

text:
    J. N. MASSEE and wife, Jenness C. Massee v. Bruno SCHILLER, also known as Bruno D. Schiller and B. E. Schiller, and wife, Berta Schiller
    5-4337
    420 S. W. 2d 839
    Opinion delivered November 27, 1967

      John B. Hainen, for appellants.

      Shaw & Shaw, for appellees.
   J. Fred Jones, Justice.

Mr. and Mrs. Schiller own most of the Northeast Quarter of the Southeast Quarter of Section 36 in Township 4 South of Range 32 West in Polk County, Arkansas, and Mr. and Mrs. Massee own the forty-acre tract immediately south of the Schiller tract. This is the second appeal to this court from decrees of the Polk County Chancery Court involving the same parties and concerning the south twenty feet of the Schiller tract.

In the first case, Massee v. Schiller, 237 Ark. 809, 376 S. W. 2d 558, Massee and his wife, as plaintiffs, alleged title by adverse possession to the south twenty feet of the Schiller tract. The background facts and decree in that case being necessary to an understanding of the issues and decree in the case at bar, we restate the pertinent facts as follows:

Many years ago a roadway had been in use over the entire length of the south twenty feet of the Schiller tract and fences had been erected on each side of- the roadway forming a lane. The east 822 feet of the lane had fallen into disuse and had long been abandoned as a roadway, but Massee continued to use the west 498 feet for ingress and egress to and from a house on his own tract of land. Schiller cleaned out the east 822 feet of the old lane and erected a new fence on the south side, thus enclosing that portion of the old roadway within his cow pasture. The west 498 feet of the lane or roadway was still in use by Massee and had not been disturbed by Schiller, when Mr. and Mrs. Massee brought suit against the Schillers to quiet title in themselves to the entire south twenty feet of the Schiller tract.

The chancellor found from the evidence in that case, including the testimony of a court appointed surveyor, that the Schillers owned no land “South of the old established fence and survey line as found by the Court to be the division line between these two forty-acre tracts.” Title to the south forty-acre tract was quieted and confirmed in Mr. and Mrs. Massee and the chancellor’s decree, insofar as it relates to -the Schiller tract and to the present litigation, is as follows:

“Bruno E. Schiller, (B. E. Schiller) and wife, Berta Schiller, are the owners of the Northeast Quarter of the Southeast Quarter (NE% SE%) of Section 36 in Township 4 South of Range 32 West in Polk County, Arkansas, and the title to this tract of land is quieted in the defendants as against the plaintiffs, J. N. Massee and wife, Jenness C. Massee, subject to a roadway easement across the South side of the West 498 feet of said forty-acre tract, g,s the same is now located.” (Emphasis ours)

The decree was affirmed by this court, (Massee v. Schiller, supra) and it is the italicized portion of that decree that gives rise to the present litigation.

Following onr mandate of affirmance, Schiller removed the old fences on each side of the easement over the west 498 feet of the south twenty feet of his 40-acre tract and erected a new fence along his property line south of the easement and placed cattle guards in his fence at each end of the easement.

Massee brought the present action for trespass alleging that Schiller has encroached upon the Massee land by building a new fence some 10 to 12 feet south of the survey along the old fence line south of the old roadway, and by removing the old fence along the north side of the easement, thereby enclosing the easement into pasture; in permitting cattle to roam over the easement and by placing cattle guards across said easement, thus interfering with Massee’s free use of the easment.

After hearing all the evidence, the chancellor entered a decree as follows:

“IT IS THEREFORE, BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED that defendants Bruno Schiller and wife, Berta Schiller, should have full use of their land subject to the prescriptive easement of the plaintiffs for ingress and egress. Old fences are not to be restored. Plantiffs are, at plaintiffs’s expense, to build and maintain cattle guards at the West end of the 498 foot lane and at the East end of said lane. Plaintiffs can continue to use the said lane. Plaintiffs are given the right to maintain the lane by deposit of gravel from time to time and by grading. Plaintiffs are granted the right to maintain a walk-way and hand rail across the two cattle guards.
“Both parties to this litigation, plaintiff and defendant are, each and both, restrained and enjoined from interfering with the herein specified rights of the other party.
“All other relief sought by parties plaintiff and defendant, is specificly denied.
“Court costs to date in this cause are to be paid by plaintiffs and defendants, one-half each for which execution may issue. ’ ’

Upon their appeal from this decree, Mr. and Mrs. Massee rely upon the following points for reversal:

“1. The Court erred in following the Prior Supreme Court Opinion which was res judicata on the law and the facts, permitting further encroachment and enlargement of rights at the expense of appellants.
“2. The Court erred in permitting a reduction in the prescriptive rights of appellants to use the established lane unimpeded by cattle, gates and cattle guards.
“3. The Court erred in permitting the erection of a new fence contrary to the established law of the case.”

We find no difficulty in disposing of points one and three relied on by appellants. The survey maps introduced as exhibits 8 and 9 to surveyor Woods’ testimony at the trial in the former case, show the true boundary line between the two forty-acre tracts to be some ten to twelve feet south of the old fence line on the south side of the old lane, the deviation being in the old fence line and not the survey line. In the second trial, appellee Schiller testified that he built his fence one foot inside the survey line as marked and staked out by the court appointed surveyor. We conclude that the appellees did not violate the original decree, as affirmed by this court, in erecting their fence one foot within the boundary line as indicated on survey plats introduced as exhibits 8 and 9 in the original trial of this case, and we conclude that the chancellor did not err in so holding.

The second point relied-on gives us the most difficulty. The precise question on this appeal is whether appellees must re-eréct a fence along the north side of the easement where it originally stood in order to keep their cattle in their pasture and out of the easement, or whether they may maintain their fence along their property line south of the easement, thus taking the easement into their cow pasture. The most important part of this question is whether appellees may maintain cattle guards at each end of the easement to prevent their cattle from straying from the confines of the pasture and from their own land. The chancellor held that this may he done, and we agree.

As new lands are placed under fence, or into agricultural production, and the communities become more thickly settled, the acquisition of roadway easements by prescription becomes less_frequent. The cattle guard is a well known device extensively used as a substitute for a gate since the comparatively recent exit of the horse and buggy days, consequently, most of cases in point concern gates and bars rather than cattle or stock guards, but the problem involved is not new to the courts. The reported cases are of little value in determining the precise question before us, however, because the decisions are as varied as the facts supporting them.

We are not unmindful of the line of decisions from other states seeming to follow the general proposition that the right in a prescriptive easement is measured by its use and where a roadway has been gained by prescription, and no gates or bars have been erected during the requisite term, none can afterwards be erected. Melton v. Donnell, 173 Tenn. 19, 114 S. W. 2d 49; Shivers v. Shivers, 32 N. J. Eq. 578; Switzer v. Armantrout, 106 Ind. App. 468, 19 N. E. 2d 858; Bolton v. Murphy, 41 Utah 591, 127 P. 335; Bishielbs v. Campbell, 200 Md. 622, 91 A. 2d 922.

We think the better rule to be as stated in Restatement of the Law, Property-Servitudes, § 481, as follows:

“The possessor of land subject to an easement created by prescription is privileged, as against the owner of the easement, to make such uses of the servient tenement as are not incompatible with the use authorized by the easement.”

In the comment under this section of the restatement we find as follows:

“Subject to the privileges of the owner of the easement, the possessor of a servient tenement retains the usual privileges that go with possession. In so far as his relations with the owner of the easement are concerned, the possessor of the servient tenement is privileged to make all uses of his land which do not interfere with the use authorized by the easement.
* # #
As the extent of the easement becomes more difficult to discover, the relations between the owner of it and the possessor of the servient tenement become increasingly subject to the governing principle that'neither shall unreasonably interfere with the use of the land by the other. * # * An interference by one with the use by the other which is reasonable in one situation may become unreasonable in another. Thus, as the land of the servient -possessor becomes more highly developed it may be proper to require the owner of an easement to submit to inconveniences to which it would have been improper to have required him to submit before the additional development. The determination as to what constitutes an unreasonable interference on the part of the possessor of the servient tenement with the use of the land by the owner of the easement depends primarily upon a consideration of the relative adyantage to him of his desired use and the disadvantage to the owner of the easement. ’ ’

The extent and limitations of an easement created by conveyance are usally fixed by the conveyance and set ont in its terms, so it is in prescriptive easement, mnch as the one we have here, where difficulty arises in measuring the rights of the owner of the easement and the rights of the possessor of the servient estate, and adjusting the conflicts between their respective rights. Where the owner of the land has a right to use it, subject to the prescriptive right of another to travel a well defined designated route across the land, some degree of inconvenience is to be expected and tolerated in the exercise of these overlapping rights, and the conflicts that arise in the exercise of such rights, are measured by reasonableness of interference of one with the other. What is reasonable or not reasonable depends on the facts and circumstances of each case and is a matter on which the minds of reasonable men may differ.

The chancellor held that the appellee had a right to erect his fence on boundary line south of the easement, and that cattle guards may be installed at each end of the easement and in this holding we agree with the chancellor. The chancellor further held that the appellant is to build and maintain the cattle guards at each end of the easement, and in this we do not agree with the chancellor.

During the running of the prescription in this case, no cattle guards were constructed or maintained across the easement and none were needed by the appellants or required for their use and benefit. It was through the acts of the appellees that cattle guards became necessary at all in this case, and if appellees now desire to use appellants’ right-of-way easement for their purpose, they must do so in such manner that will not unreasonably interfere with appellants’ use, so appellees must provide the means for the continued unobstructed passage for the appellants through appellees’ new fence at both ends of the right-of-way easement. If appellees are to enclose appellants’ right-of-way by a fence, the appellees must construct and maintain the cattle guards with the walk-way and hand rails as provided in the chancellor’s decree, and in such manner that appellants may enjoy uninterrupted and unobstructed travel over the roadway along their easement.

We find no cases involving cattle guards as such, but similar situations concerning gates and bars have been before the courts many times. In the Mississippi case of University of Mississippi v. Gotten, 119 Miss. 146, 80 So. 522, the court said:

“There is another question yet to answer. Conceding the easement, can we say that the erection and maintenance of the gate across the roadway appreciably interfered with, or unreasonably limited, the enjoyment of the easement?
“Upon this phase of this case the authorities are not in harmony, but we believe that the facts of each case should control. If it appears that the erection of gates will not unreasonably interfere with the enjoyment of the easement, it is our opinion that the owner of the servient estate is justified in erecting gates. Generally speaking, every owner of lands has a perfect right to fence them, provided, of course, to do so will not appreciably interfere with vested rights of others.”

In Chesson v. Jordon, 224 N. C. 289, 29 S. E. 2d 906, we find the following language:

“While the authorities are at variance as to the right of an owner of land burdened with a right-of-way acquired by prescription to erect gates across the way, the weight of authority is in accord with the holding that such a right exists in the case of agricultural land. 17 Am. Jur., 1012, sec. 122; 28 C.J.S., Easements, § 91, p. 770; Annotation 73 A.L.R. 788. See also Alexander v. Autens Auto Hire, 175 N. C. 720, 95 S. E. 850; Jacobs v. Jennings, 221 N. C. 24, 18 S. E. 2d 715.
“Generally speaking, the nature of the easement acquired rather than the character of the use must control the rights of the parties. Hence, no hard and fast rule may be prescribed. Each case must be controlled, in large measure, by the particular facts and circumstances being made to appear.
“Ordinarily, however, a mere private easement for the general purpose of ingress and egress over and across agricultural lands carries with it no implication of a right to deprive the owner of the servient estate of the full enjoyment of his property. It is subject only to the right of passage. Hence, he may erect gates across the way when necessary to the reasonable enjoyment of his estate, provided they are not of such nature as to materially impair or unreasonably interfere with the use of the lane as a private way for the purposes for which it has theretofore been used.”

In the Kentucky case of Willard Wynn v. Alex Powell, 286 S. W. 2d 367, gates and bars had been maintained across the right-of-way through the running of the prescription and the servient owner claimed the right was by sufferance instead of prescription, but in that case the court said:

“Under our rules governing passway cases, even if we should ignore the evidence concerning the existence of gates across the passway, the appellants would still be entitled to maintain gates. In Bridwell v. Beerman, 190 Ky. 227, S. W. 165, at page 166, it was said:
“ ‘If one should acquire a passway by long use over and through the fields of a neighbor, and this pass-way was unfenced, the owner of the servient estate would have the right to erect a gate or gates across the way to aid him in fencing his farm or in dividing it up into fields.’
“Appellant as the owner of the property in fee is entitled to use it in a lawful manner, as in this case, to pasture his livestock. But in doing this as the owner of the servient estate, he cannot destroy or unduly obstruct the rights of the dominant estate created by the easement over the property. The servient owner must permit the free and unrestricted use of the passway by the owner of the dominant estate while the latter must use his right so as to be as little burdensome as possible to the servient estate.”

In our own early case of Hockersmith v. Glidewell, 153 S. W. 252, suit was instituted to enjoin the servient owner from maintaining a bar across a road right-of-way over a prescriptive easement. The chancellor granted the injunction and in reversing the chancellor, this court said:

“. . . [W]e do not think that the evidence shows that the placing of the bar across the road by appellants, for the purpose of keeping their horses off of their crop, was an obstruction of such a material 'character as to interfere with the reasonable enjoyment of the easement by appellee.”

We conclude that the chancellor was correct except in requiring the appellants, rather than the appellees, to construct and maintain the cattle guards. In citing cases, supra, pertaining to gates and bars erected across rights-of-way, we do not imply that the appellees in this case, or the owner of the servient estate in any other case, would have the right to erect gates or bars or anything else that would unreasonably interfere with the useful enjoyment of the easement.

Appellants’ easement for a roadway in this case was established by prescription and fixed by court decree which has been affirmed by this court. The easement runs with the ownership of the appellants’ land and its use continues free of unreasonable interference by the servient owner until the ownership of the easement is merged with the ownership of the servient estate, or until the easement is abandoned by its owner.

We simply hold that the building of cattle guards at each end of the easement in the case at bar, does not unreasonably interfere with appellants’ use of the easement under the facts of this case, but we hold that the duty of building and maintaining the cattle guards with walk way and hand rails, as provided in the decree, falls upon the appellees.

This cause is remanded to the trial court for the entry of a decree not inconsistent with this decision. Each of the parties will bear their own costs.

Affirmed as modified.

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

John A. Fogleman, Justice,

dissenting. I respectfully dissent. I cannot understand how either the trial court or the majority of this court arrives at a result which permits or approves the action of appellees in erecting a new boundary fence south of the easement of appellants. I agree that a review of the first appeal in this ease is essential to an understanding of-the issue involved here. I do not agree with the majority’s analysis of facts in that case. Then, appellants sought, among other things, a decree:

1. Quieting their title against all claims of appel-lees to a 20-foot lane across the entire width of the NE¼ SE¼ of Section 36, Township 4 South, Range 32 West;
2. Directing appellees to replace a fence in its former location on the north side of the approximately 790 feet of the east end of the lane, and to place same in as good condition as it was at the time of removal;
3. Restraining appellees from farther relocation of said fences and from interference in any manner with appellants’ nse of the lane, including moving fences and permitting cattle to come into and through the lane.

Appellees prayed in their answer that their title he quieted to the NE¼ SE¼ of Section 36, Township 4 South, Range 32 North, subject to a roadway easement in favor of appellants over that part of the lane which extends along the dividing line between the two forties for a distance of approximately 530 feet. In their amended answer, appellees prayed that the court order that the boundary line fences be located upon the true boundary line, subject only to the roadway easement, “which these defendants admit the plaintiffs are using, but that this easement should be across the south 20 feet of the west 498 feet of the NE¼ SE¼, Section 36 in Township 4 South, Range 32 West * *

The trial court ordered that each party be permitted to make a survey without interference of the other. At the request of appellants, the county surveyor made a survey, witnessed by Schiller. This survey located a lane or road completely across the south side of the Schiller tract described as the NE¼ SE¼ of Section 36 in Township 4 South, Range 32 West, varying in width from 20 to 24 feet. There was a fence north of this roadway and one south thereof. The fences appeared to have once extended all the way across the tract, but were down and in a state of disrepair east of the point where a roadway from this lane entered the Massee tract some 495 to 498 feet east of the west boundary line. For the west 498 feet, the north fence was the south boundary of the Schiller pasture. On the south side of this roadway, the fence had been partially removed. The north fence was 32 feet north of the true southwest corner of the NE¼ SE¼, Section 36. The south fence was, thus, approximately 12 feet north of this true corner. The roadway and fences angled slightly toward the south as they proceeded eastward but all remained north of the true line. The roadway and south fence had fallen into partial disuse and decay east of the turn-off to the Massee house, but the north fence connected with an old fence crossing the entire 40-acre tract. Trees had grown up between the old south fence and the true boundary line. The trial court found that (1) the established bounadry lime between the two 40-acre tracts was “the old fence line which divides” them; (2) appellants’ claim to a strip twenty feet in width across the east 822 feet laying wholly upon appellees’ land was without merit because of abandonment; (3) appellants had a prescriptive easement for roadway purposes across appellees’ lands in the place it was then located on the south side of the NE%- SE14. along the west 498 feet of the 40-acre tract; (4) appellees had no claim of ownership to the SE*& SÉy^ “south of the old established fence and survey line as found by the court to be the division line between these two 40-acre tracts.” This decree was affirmed by this court. There can be no question that the south fence line of the roadway or lane was definitely determined to be the boundary line between appellants and appellees for the west 498 feet of each tract.

After the mandate of this court was filed, appellees cut down the trees south of the boundary fence, took down their pasture fence along the north line of this roadway and put a new fence some 10 or 12 feet south of the old fence line which had been determined to be the boundary line. In its decree now appealed from, the trial court disregarded its previous decree and the mandate of this court by not requiring the removal of this new fence, at least to the property line along the old fence line on the south side of the roadway.

I would reverse and remand with directions to enter a decree requiring the appellees to remove any and all fences south of the old fence line south of the roadway easement across the west 498 feet of appellees ’ lands.

I am authorized to state that Harris* C. J., and Byrd, J., join in this dissent.

Conley Byrd, Justice,

dissenting. My dissent is based upon the premises that the court is permitting a material alteration of the easement acquired by appellants; that a cattle guard is but another form of a gate or gap; and that the roaming of cattle on a road, if not a type of obstruction, is at least a nuisance.

In Craig v. O’Bryan, 227 Ark. 681, 687, 301 S. W. 2d 18 (1957), wo said:

“As a general rule, when the character of an easement is once fixed, no material alteration can be made in physical conditions which are essential to the proper enjoyment of the easement except by agreement.”

The logic of not permitting a material alteration in the physical conditions essential to an easement is amply demonstrated in the present case. Here appellants had acquired an easement by prescription to the use of a road within a lane. The important element is not the existing improvements to the property of either party, but the extent of the right to utilize the easement. It is common knowledge that the access to property materially affects its market value — for instance, many people will pay more for property at the end of a road, and property along an improved public road is always more valuable than property back off the road. Consequently, it logically follows that in purchasing or improving property one should be entitled to rely on reasonable permanence of the access as it exists. Having to drive through a cow pasture to reach a proposed home site would materially affect the desires of many people to make substantial improvements. Therefore, in my opinion, today’s decision will materially reduce the market value of the property of many of our citizens, who through the years have come to rely on roads acquired by prescription.

I agree with the majority that a “. . . cattle guard is a well known device expensively used as a substitute for a gate ...” Consequently, the majority opinion runs counter to the many decisions of this court which hold that acquiescence for more than seven years in the existence of a gate across a road established by prescription amounts to abandonment of the prescription right. See Nelms v. Steelhammer, 225 Ark. 429, 283 S. W. 2d 118 (1955), and Lusby v. Herndon, 235 Ark. 509, 361 S. W. 2d 21 (1962). Not only is that the effect of the decision but the majority opinion, for precedent to support its position, quotes and relies on cases from other jurisdictions which specifically permit the placing of gates across private ways. In Brooks v. Reedy, 241 Ark. 271. 407 S. W. 2d 378 (1966), we held that the parties claiming the road by prescription lost or abandoned their right thereto when Brooks enclosed his land and placed gates across the road for a period in excess of seven years, even though the gates were left open during certain seasons of the year, especially during winter months. If the acquiescence in the existence of an unlocked wire gap or gate for the statutory period of seven years amounts to the abandonment of a prescriptive easement, how much less does this apply to the existence of a cattle guard? It appears to me that the property owner asserts the permissiveness of the passage as forcefully in one instance as in the other. The majority opinion leaves dangling the issue of whether the maintenance of a cattle guard across an easement for seven years will result in an abandonment of the easement, or whether one who uses a road where a cattle guard is maintained can ever acquire an easement. I think the citizenry of this state would best be served by treating a cattle guard as a gate, as is recognized by the majority opinion, and the rights of the respective parties should be determined in accordance with our existing law on gates and gaps.

The proof in the record shows that Miss Sarah Crawford, the sister and sister-in-law of appellants, resides on their property, and that the roaming of the cattle on the road amounts to an obstruction of the road as to her. While prior to Initiated Measure No. 1 of 1950 (the so-called Stock Law) this argument might not have been tenable, it appears that the people of this state, by prohibiting the roaming of cattle on the public roads, have recognized cattle to be, if not an obstruction to the use of the roads, at least a nuisance. As far as an individual’s use of a private road is concerned, the roaming of cows on the road to his home is certainly as obnoxious and obstructive as their roaming on a public road would be.

Finally, even if I should accept the majority theory that the trial court has some discretion in permitting the use of cattle guards on a private way, I think the trial court abused its discretion in this instance. The record conclusively shows that the road in issue, 20 feet wide, extends along appellees’ southern boundary for a distance of only 498 feet. This total area amounts to less than one-fourth of an acre, and when the roadway, which appellants have been granted the right to grade and maintain, is taken out of the area involved, little or no practical benefit from the use of the area as a pasture will result to appellees except as it may add fuel to the feud that has been existing between these parties.

Therefore, I would reverse and remand the ease with directions to appellees to take the road out of their pasture.

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

      Reported as Massee v. Schiller, 237 Ark. 809, 376 S. W. 2d 558.


author: Conley Bykd, Justice. John A. Fogleman, Justice,

text:
    CONTINENTAL GEOPHYSICAL CO. v. Jeff ADAIR et al
    5-4319
    420 S. W. 2d 836
    Opinion delivered November 27, 1967
    [Rehearing denied January 22, 1968.]

      Daily & Woods, for appellant.

      Jeptha A. Evans, for appellees.
   Conley Bykd, Justice.

Appellant, Continental Geophysical Company, appeals from judgments entered in five consolidated cases brought by appellees Jeff Adair, Pleas Garner, R. H. Swint, Johnny McAnally, and Homer Wilkins. The allegation is that appellant's seismograph operations partially destroyed the water supply to appellees’ wells.

For reversal, appellant sets out six separate points, but since we hold that the proof fails to show a causal relationship between appellant’s seismograph operations and the failure of the water supply in appellees’ wells, we deal only with that issue.

The record facts show that some time prior to March 13, 1964, appellant drilled ten holes in the vicinity of the Sugar Grove and Dry Creek areas of south Logan County, at a depth of 100 feet, except for one hole 95 feet deep. In each of seven of these holes appellant placed 200 pounds of dynamite, which took up 40 feet of the hole. The remaining 60 feet was filled with gravel. The charges packed in the holes were set off by appellant on March 13, 14 and 15, 1964. The closest test hole to any of appellees’ wells was 1,600 feet; the farthest was 6,300 feet. It was also undisputed that in 1963 Logan County was declared a drouth area, the recorded rainfall being 26.41 inches. (Average rainfall from 1945 to 1965 was 43.82 inches.) Wells other than those here involved also went dry and lawsuits are pending against appellant with respect to some of them.

The depth of most of appellees’ wells ranged from 28 to 50 feet. Mr. Swint’s well, a drilled well, was 90 feet deep.

Mr. Swint testified that his well was drilled in 1964, before appellant’s operations; that it was capable of pumping 750 gallons of water per hour and was supplying, in addition to his home, two chicken houses with a capacity of 12,500 brooders each; that his well quit some time in the spring of 1964; that when it got to where it would not furnish water for one of the chicken houses he got a driller to set up over it and lower the depth and did get a little more water; and that he did not know exactly how long after appellant’s crews left before he noticed the water Avas getting Ioav, hut it was not too awful long.

Appellee Homer Wilkins testified that he had owned his place for 12 or 15 years; that he had never had any trouble Avith his well before; and that he first noticed the lack of water in his well during the summer of 1964.

Appellee Pleas Garner testified that his veil had been in existence to his knowledge for more than 40 years and had not gone dry, and thát he first noticed his problem some time in the summer of 1964. He at first said it was probably in October, but later testified that it happened just after the time of the exploration of the defendant company. He did not know whether it was 30 or 60 days or what. He knew he had run out of Avater about the time the defendant put dynamite shots off and had been out ever since. He testified that if the dynamite had not caused the damage it was funny because that well had been there some 40 years and had not gone dry. He was willing to say that he felt that the dynamite was what did it because it never happened before to his knowledge and he had been around there all his life. He felt the shots were what caused it. He could not say he knew the dynamite caused it but he had that feeling that that Avas what happened to turn the water off. He Avas going to say that. He guessed that God Almighty was the only one that really knew what caused it but he thought he knew.

Appellee McAnally testified that he had owned his place since 1946 and the well had never gone dry before, and that it had started going dry in the summer of 1964.

Mrs. Adair testified that she and her husband owned places at both Sugar Grove and Dry Creek; that they had had plenty of water up until appellant’s seismograph operations; and that their wells had gone dry in mid-July, 1964. Her testimony was that she knew they set off some dynamite down there; that she heard and felt the blast and could hear the windows shake; and that it was in 1964 some time and right after they did it that the wells all went dry and they went to hauling water.

The only testimony about the geology of the area was given by appellant’s witness, Dr. Leslie Mack. Ho testified that all the wells in the town of Sugar Grove were in the alluvial or unconsolidated settlements; that the water supplying these wells did not move in streams' as such, but that it moved as a body en masse, as a saturated mass. He stated that you could dig a well almost any place in the Sugar Grove area and find water at the same level — that it is all saturated and there are no underground streams in the area. He did point out that in areas of limestone formation, such as in north Arkansas, you can have a cavernous limestone where water actually flows through fissures and cracks in the rock, but that so far as Sugar Grove is concerned there are no such streams.

Under the facts, therefore, it appears that in 1963 there was a severe drouth; that on March 13, 14 and 15, 1964, appellant detonated its seismograph test holes; and that some time in the spring or midsummer appel-lees’ water wells began to fail. We think the proof is insufficient to show a causal relationship between the detonation of the test holes and the failure of appellees’ wells.

In Western Geophysical Co. v. Mason, 240 Ark. 767, 402 S. W. 2d 657 (1966), we had before us a case of damage to a well by seismograph operations similar to those here. But there the proof showed that the well had been damaged once before by similar explosions, and that soon after the explosions the water in the well turned red and muddy and became unfit for use. Here appellees lack the previous experience found in the Western Geophysical case, and the further element of the muddying of the water.

O’Brien v. Primm, 243 Ark. 186, 419 S. W. 2d 323 (1967), involved damage to a water well following a sand fracting operation on an oil well. The proof showed that acid had been placed in the oil well in connection with the sand fract job and that shortly after the 3,500-pound pressure had been applied to the oil well the acid had appeared in Primm’s water well. The record here shows no proof of the transfer of any substance from appellant’s test holes to appellees’ wells.

When we consider the distance from appellant’s test hole explosions to appellees’ wells, and the time lag between the date of the explosions and the failure of the water supplies, we can find no evidence to show that the test hole detonations were a cause which, in a natural and continuous sequence, produced the damages to the wells and without which the damages would not have occurred. Therefore, we hold that the trial court should have directed a verdict in favor of defendants at the conclusion of plaintiffs’ case.

However, our ruling herein does not necessarily require that the case be dismissed. In a similar situation in St. Louis S. W. Ry. Co. v. Clemons, 242 Ark. 707, 415 S. W. 2d 332 (1967), we said:

“We come now to the question of whether this case should be dismissed or remanded. This court has long adhered to the rule so well reiterated in Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S. W. 533 and 1102 (1907). The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S. W. 108 (1892). There it was said that when a trial record discloses ‘a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.’ To the same effect, see Hinton v. Bryant, 232 Ark. 688, 339 S. W. 2d 621 (1960).”

Counsel for appellant readily advises this court that lawsuits involving other wells are still pending. It is not impossible that the defects in the proof could be supplied on retrial. We need not speculate on the nature of the proof. But should we dismiss plaintiffs’ causes of action here and should other plaintiffs furnish the needed proof, the practical result would be that some people in the community would recover for their wells while the plaintiffs here involved would be denied. This seeming inconsistency in the law would be contrary to the philosophy that justice should not only be fair but appear fair.

Beversed and remanded.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the majority opinion and its disposition of the case. My concurrence in the remand of the case is not for the reasons stated in the majority opinion, however. In view of my dissent from the remand in St. Louis Southwestern Ry. Co. v. Clemons, 242 Ark. 707, 415 S. W. 2d 332, I feel that I should express my reasons for this concurrence.

There is direct precedent for remanding a case in which judgment based on a jury verdict is reversed for insufficiency of the evidence to support it. The touchstone for the departure from the usual disposition in such case is that there he some unusual circumstance to justify the different treatment. It has been held that such unusual circumstance exists when the lack of substantial evidence is due to the failure of the plaintiff to show causation where expert testimony might have supplied the deficiency. In Reynolds Metal Company v. Ball, 217 Ark. 579, 232 S. W. 2d 441, the appellee-plaintiff sought to recover from the appellant for damage to his farm and pasture land. He contended that the damage was caused by sediment from the alumina extraction plant of the appellant some six or seven miles upstream. The plaintiff failed to prove that the sediment came from the plant and could only testify that he never had any of the sediment until the plant went in. He also failed to prove that the sediment included chemical constituents that were poisonous to vegetation. This court held that the trial court should have directed a verdict, but found that there were special circumstances to justify remanding the cause for a new trial rather than dismissing. The identical factors relied on in that case are the deficiencies in appellees’ proof in this ease, so I agree that a remand is proper here, as I consider that precedent controlling.


author: Henry Woods, Special Justice.

text:
    The NORTH LITTLE ROCK TRANSPORTATION CO., INC. et al v. Joe P. FINKBEINER et al
    5-4270
    420 S. W. 2d 874
    Opinion delivered November 27, 1967

      Rose, Meek, House, Barron, Nash & Williamson and Louis Rostech, for appellants.

      Wright, Lindsey & Jennings, for appellees.
   Henry Woods, Special Justice.

This is a suit for property damage and personal injuries filed by appellants in circuit court. Litigation resulted when a cab owned by appellant North Little Eock Transportation Co., Inc. and occupied by appellant Baxter skidded on water flowing across a street from a lawn sprinkling system owned by appellees Mr. and Mrs. Joe P. Fink-beiner. At the close of all testimony, the trial judge directed a verdict for the appellees, and the sole issue is the correctness of the ruling. Two basic questions must be answered. First, were the Finkbeiners negligent? Secondly, even if they were not negligent, can liability be imposed under the doctrine of Rylands v. Fletcher, L.R. 3 H.L. 330, i. e., under a theory of absolute or strict liability?

There is no material dispute as to the facts. Mr. and Mrs. Joe Finkbeiner, the appellees, own a home on the south side of Cantrell Eoad near the crest of what is known as Cantrell Hill in western Little Eock. On June 10, 1966 Mrs. Finkbeiner decided to activate their lawn sprinkling system for the first time since the winter months. To accomplish this, a city water company employee, using a special tool, must first open a cutoff valve located in a steel box near the road. After this valve is opened, the sprinkling system is then controlled manually by two toggle switches on the porch of the Finkbeiner home, each of which controls the sprinkler heads on one-half of the lawn. In response to a call by Mrs. Finkbeiner, a water department employee opened main cutoff valve sometime between 9:00 and 9:30 A.M. The sprinkler heads on one side of the lawn immediately began operating, and Mrs. Finkbeiner was so advised by the water company employee. She told him to leave it on, that she would turn on the other side, and cat both off when she had finished watering the yard. There is no evidence in the record that either Mrs. Finkbeiner or the water company employee then realized that something was amiss with one of the toggle switches.

At approximately 11:00 A.M. Mrs. Finkbeiner attempted to cat off the sprinkler system,, but one of the switches wonld not operate. Mrs. Finkbeiner immediately called her husband at his meat packing plant, and the plant’s chief maintenance engineer was sent to repair it. At the same time she called the city water department and asked them to send someone to cut off the main valve. Mr. Finkbeiner’s maintenance engineer arrived in a few minutes and was attempting to repair the switch at the time of the accident - hereinafter described.

Water from the sprinkling system flowed into Cantrell Road and down the curb on the south side for about a block until it reached a point where the road cruves from its generally eastward direction. At this point the water continued eastward, crossing the road in rather large quantities. At approximately 11:35 A.M. a westbound cab owned by appellant North Little Rock Transportation Co., Inc. and occupied by appellant Baxter skidded on the wet road surface and crashed into a telephone pole damaging the cab and injuring Mr. Baxter.

Mrs. Finkbeiner denied any knowledge that the water on this occasion had been discharged in sufficient quantity to flow across Cantrell Road, and both appel-lees denied knowledge of such flow on any previous occasion. However, the sprinkler system had never been permitted to operate for this length of time. The Fink-beiners testified that in six years of occupancy the sprinkling system had been checked on several occasions and the switches had never before given trouble.

The rule with regard to negligence in this type of fact situation is given in the Restatement, Second, Torts § 368 as follows:

“A possessor of land who creates or permits to remain thereon ... an artificial condition so near an existing highway that he realizes or should realise that it involves an unreasonable risk to others accidentally brought into contact with such condition while travelling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who (a) are travelling on the highway. . .”

Here the condition was “created” by the defective switch. Did the Finkbeiners fail to use ordinary care with respect to its condition? This question must be answered in the negative. The sprinkler system had been checked on several prior occasions. This switch had never given trouble before. The cases, including one in Arkansas, uniformly refuse to predicate negligence on this basis alone. Haizlip v. Rosenberg, 63 Ark. 430, 39 S. W. 60 involved a defective ballcock in a water closet. “The appellant did not know, and had no actual notice that the water fixtures were in bad repair before or at the time of the overflow.” Id. at 431, 39 S. W. at 61. As was said in a leading English case almost identical in facts to Haislip, there was “no reason to suspect the valve had given way or was in any danger of giving way or that anything was wrong with the closet, and I see no negligence in not guarding against a danger which there is no reason to anticipate.” Ross v. Fedden, 7 L.E. 661, 662 (Q.B. 1872). See also Blake v. Land and House Property Corp., 3 T.L.R. 667 (Q.B. 1887) for similar facts and result; Armstrong v. Milgrim, 172 N.Y.S. 454 (actual or constructive notice to landowner necessary to charge landowner with negligence in leakage of pipe from defective valve); Uhl Bros. v. Hull, 130 Wash. 90, 226 P. 723 (no negligence where leakage from concealed pipe, which could not be discovered except with great difficulty); Reedy v. St. Louis Brewery Ass’n 161 Mo. 523, 61 S. W. 859, 53 L.R.A. 805 (no negligence on part of brewery whose pipe burst and discharged water across sidewalk; water froze and caused plaintiff to fall).

Even though a landowner might not be negligent in causing a discharge of water from his premises onto adjoining property or into an abutting highway, ordinary care might well require that immediate steps be taken to correct the condition, once it is discovered. In the words of the above-quoted section of the Restatement, there may be a failure of ordinary care if the landowner “permits it to remain.” Yet in this respect the actions of the Finkbeiners were exemplary. Upon discovering that the switch was broken, Mrs. Finkbeiner immediately called her husband, who dispatched his chief maintenance man to make repairs. She also called the water company and asked them to send a man to cut off the main valve.

Appellants, however, urge that a jury question was made on the failure of the Finkbeiners to warn them that the water was flowing across Cantrell Road and creating a hazardous condition to traffic. Such a duty on their part could only arise if they knew or should have known this fact. There is no evidence in this record that they had actual knowledge, so this allegation must necessarily be based on the contention that they should have known the course and possible result of the water’s flow. We cannot sustain this contention. The point where the water crossed Cantrell Road was a block from the home. On previous occasions when their sprinkler system was used, the water flowed along the curb on the south side of Cantrell Road into a drain past the point of the accident. We do not think it would be reasonable to charge them with constructive knowledge not only that the water would cross the road, but that a car travelling up the hill would skid on the wet surface. Nor do we consider that ordinary care would dictate that Mrs. Finkbeiner should go more than a block from her home and flag traffic proceeding up Cantrell Hill. To control traffic of the speed and density found at this location would certainly have been beyond the competence of a housewife. Mr. Finkbeiner is an executive in a meat packing firm located in the extreme eastern part of Little Rock at a considerable distance from his home. Tlie accident happened about thirty minutes after his wife notified him telephonically of her difficulties with the switch. Even if he had realized on the basis of a phone call that a dangerous condition was being created for traffic on Cantrell Road, we. do not see how he personally could have taken steps to warn motorists, in view of the time element. He did immediately dispatch bis' chief maintenance man to repair the switch, and Mr. Finkbeiner was at the scene within an hour after'his wife’s call.

Appellants place principal reliance on the Texas case of Skelly Oil Co. v. Johnson, 151 S. W. 2d 863, which bears some superficial resemblance to the case at bar. Water from Skelly’s cooling tower was blown by the wind onto a nearby road, causing a slippery surface on which plaintiff’s car skiddel. The clear distinction between Shelly and the case at bar appears in the court’s finding that “when wind was from the west, water would be blown from the cooling towers onto the road east of the towers and for a number of years wet places had been created. . .” (Emphasis added.) The distinction is made more evident by the Texas court’s principal authority, Stephens, Adm’r v. Deickman, 158 Ky. 337, 164 S. W. 931, a case wherein a downspout discharged water across a sidewalk, ice formed, and plaintiff was injured in a fall. The court in that case said:

“[I]n case such an obstructon or nuisance should arise suddenly or unexpectedly, it is the landlord’s duty to remove the obstruction or nuisance as soon as he has knowledge of its existence, or could have had such knowledge by the exercise of ordinary care. In the case at bar the ice had remained upon the sidewalk for more than two weeks before the accident, and to the knowledge of the appellee.” (Emphasis added.) 164 S. W. at 934-35.

Skelton v. Thompson, 3 Ont. Rep. 11, involved the same fact situation, except that the ice had formed two or three hours before the accident. In conformity with the rule expressed in the above Kentucky case, judgment was for the defendant because there was in finding that the abutting owner either knew or should have known of the slippery condition which caused the plaintiff to fall. A similar view-was expressed in Lansing v. John Strange Paper Co., 227 Wis. 439, 278 N. W. 857. The defendant’s plant emitted vapor from exhausts in proximity to a bridge, causing ice to form on the bridge. Plaintiff sustained injuries when his car skidded on the ice. The court pointed out - that there was a complete absence of any proof that ice had ever formed theretofore upon the bridge as a result of vapor emitted from defendant’s plant. In denying liability it was said that “to sustain liability it is not enough to show that the defendant permitted a dangerous condition to exist. It must also be shown that it was negligently permitted to exist. If risks of harm cannot be foreseen by a reasonably prudent and intelligent man, the risk is not unreasonable, hence there is no negligence, consequently, no liability.” 278 N. W. at 859.

The question therefore shades into what is a patent defect in appellants’ entire negligence case- — the absence of foreseeability. Foreseeability is a necessary ingredient of actionable negligence in Arkansas. Collier v. Citizens Coach Co., 231 Ark. 489, 330 S. W. 2d 74. As Justice Leflar wrote in Hill v. Wilson, 216 Ark. 179, 183, 224 S. W. 2d 797, 800: “There is no such thing as ‘negligence in the air.’ Conduct without relation to others cannot be negligent; it becomes negligent only as it gives rise to an appreciable risk of injury to others.” See also the celebrated opinion by Judge Cardozo in Palsqraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99. The same concept is expressed in the above-cited Restatement, Second, Torts, $ 368 with, its requirement that the possessor of lands “realizes or should realize (that the condition) involves an unreasonable risk to others accidentally brought into contact with such condition. .

It follows from what has been said that appellants may not maintain an action against the Finkbeiners based upon negligence. This brings us to an examination of the other possible basis of liability. In the 1868 English case of Rylands v. Fletcher, L.R. 1 Ex. 265, aff’d L.R. 3 H.L. 330, the defendant constructed a reservoir on the site of an abandoned mine. Water seeped into the mine and thence into shafts of plaintiff’s mine on adjoining property. No negligence was found on the part of defendant, but liability was nevertheless imposed in the Court of Exchequer under a rule formulated in the following terms:

“We think the true rule of law is that the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” Id. at 279.

In the House of Lords, Lord Cairns modified the rule somewhat by pointing out that the defendant would not be liable if the activity were a natural use of the land.

If the rule expressed in the Court of Exchequer were applied broadly and literally in the case at bar, a strong argument might be made for imposing liability on the Finkbeiners. Indeed, in a number of early English cases, the doctrine of Rylands v. Fletcher was used to impose liability in factual situations somewhat similar to that existing in the case at bar. See Charing Cross Electric Supply Co. v. Hydraulic Power Co., 3 K. B. 722, 83 L.J.K.B. 1352 (water in high pressure mains under street flowed out from breaks not caused by negligence of water company and damaged plaintiff’s cables); Snow v. Whitehead, 27 Ch. Div. 588 (water collected in cellar of defendant’s house and then found its way into cellar of adjoining house. “Anyone who collects upon his own land water, or anything else, which would not in the natural condition of the land be collected there, ought to keep' it in at his peril, and that if it escapes, he is liable for the consequences.” Id. at 591) ; Ballard v. Tomlinson, 29 Ch. Div. 115 (defendant dumped sewage and waste on property which polluted his well and by percolation polluted plaintiff’s well on adjoining property).

The principle was not long in finding its way into American courts, the earliest decision being Ball v. Nye, 99 Mass. 582, where filthy water from defendant’s land percolated into plaintiff’s well. Another early Massachusetts case, Shipely v. Fifty Associates, 101 Mass. 251, involved its application to facts somewhat similar to those in the case at bar in that snow and ice slid from defendant’s roof onto sidewalk causing plaintiff to fall. The same basis of liability was applied on identical facts in Hannem v. Pence, 40 Minn. 127, 41 N. W. 557. There are many other American cases where the rule in Rylands v. Fletcher, supra was used to impose absolute liabilty for the escape of water from defendants’ property. See for instance, Weaver Mercantile v. Thurmond, 68 S. W. 530, 70 S. E. 126 (defendant’s water storage tank burst and damaged plaintiff. “Therefore, if a man brings water upon his premises by artificial means, and collects and keeps it there, he is bound at his peril to see that the water does not escape. . .” 70 S. E. at 127); Bridgman-Russell Co. v. Duluth, 158 Minn. 509, 197 N. W. 971 (water main broke and damaged plaintiff’s property); Defiance Water Co. v. Olinger, 54 Ohio St. 532, 44 N. E. 238 (standpipe burst and escaping water injured plaintiff in nearby house); Baltimore Breweries Co. v. Ranstead, 78 Md. 501, 28 A. 273 (water escaped from defendant’s storage tank and flooded plaintiff) ; Wilson v. City of New Bedford, 108 Mass. 261 (water seeped from water reservoir to adjoining landowner^ cellar); Healey v. Citizens Gas & Elec. Co., 199 Iowa 82, 201 N. W. 118 (water percolated from defendant’s dam and reservoir and flooded plaintiff’s land); Kall v. Carruthers, 59 Cal. App. 555, 211 P. 43 (water from ricé grower’s land percolated and damaged land of adjoining owner); Norfolk & W. Ry. Co. v. Amicon Fruit Co., (4th Cir.) 269 F. 559 (leakage from defendant’s pipeline, caused water to flow into plaintiff’s cellar and injure goods).

After the first rather broad applications of the principle, the English courts began to emphasize its initial limitations, expressed by Lord Cairns in the House of Lords, that the doctrine applied only to a “non-natural” use of the land. A few years later English and Commonwealth cases are illustrative. In Rickards v. Lothian, A. C. 263 [1913,] 82 P.J.P.V. 42, there was an overflow of a lavatory on the top floor and damage to stock in trade on the lower floor, caused by the malicious act of a third person. In denying liability urged under the rule of Rylands v. Fletcher, Lord Moulton pointed out that “it is not every use to which land is put that brings into play that principle. It must be some special use, bringing with it increased danger to others, and must not be the ordinary use of the land.” Id. at 280. See also Torette House v. Berkman, 62 C.L.R. 637 (Australia).

One of the best illustrations of the more recent attitude of the English courts is Peters v. Prince of Wales Theatre, 1 K. B. 73 [1943], a case involving a sprinkler system, albeit not the same type as involved in the case at bar, but one installed in a theatre to prevent fires. The system was released by a freeze, and water damaged plaintiff’s stock and trade on adjoining premises. The trial judge held the defendant liable under the authority of Rylands v. Fletcher, refusing to accept the analogy of the escape of water brought on premises merely for such domestic purposes as water closets, lavatories, arid baths. “It is a system in which there is potential danger of the escape of an enormous quantity of water.”

The Court of King’s Bench reversed and in the course of its opinion stated:

“In the present case, we are concerned with a building, the greater part of which was, at the time of the damage, used as a theatre, where not only must special precautions against fire be taken, but these spi’inlders are by the local authority required to be fitted. Having regard therefore to the nature of the building, the installation would appear to be ordinary and usual. . .” Id. 76.

The American decisions have been sharply divided in their acceptance of the rule of Rylands v. Fletcher. See the tabulation of the various jurisdictions in Prosser, Law of Torts, 3rd Ed., 523 et seq. But even those jurisdictions which apply it now accept the limitation of “non-natural use”, emphasized in the above English cases. Two cases are good illustrations in the context of the present fact situation. In MrCord Rubber Co. v. St. Joseph Water Co., 181 Mo. 678, 81 S. W. 189, a water pipe on defendant’s premises broke during a freeze and damaged plaintiff’s goods. The doctrine of Rylcmds v. Fletcher was held inapplicable to these facts:

¡ < rpiiere ig a wide difference between a great volume of water collected in a reservoir in dangerous proximity to the premises of another, and water brought into a house, through pipes, in the manner usual in all cities, for the ordinary use of the occupants of the house. Whilst water so brought into a house cannot literally be said to have come in in the course of what might be called, in the language above quoted of the Lord Chancellor, ‘natural user’ of the premises, yet it is brought in by the method universally in use in cities, and is not to be treated as an unnatural gathering of a dangerous agent. The law applicable to the caging of ferocious animals is not applicable to water brought into a house by the pipes in the usual manner.” 81 S. W. at 193.

The trial court in Shanander v. Western Loan & Bldg. Co., 103 Cal. App. 2d 507, 229 P. 2d 864, 26 A.L.R. 1039, applied the doctrine of Rylands v. Fletcher to a case in which a pipe in an upper floor apartment burst and damaged premises below. In reversing, the court quoted 32 Am. Jur. 626-67 as follows: “The rule ... is not applicable to the act of a landlord in providing his building with artificial means for supplying it with water. Such introduction of water is an ordinary and natural use.” 229 P. 2d at 866. It is interesting to note that one of-the cases cited in this opinion is the Arkansas decision of Haizlip v. Rosenberg, supra.

This brings us to a consideration of the rule of Rylands v. Fletcher in Arkansas. Its history is interesting. See Sharp, Absolute Liability in Arkansas, 8 Ark. L. Rev. 83. After express repudiation in the early case of Southwestern Tel. and Tel. Co. v. Beatty, 63 Ark. 65, 37 S. W. 570, the rule was again considered in a 1922 case, Constantin Refining Co. v. Martin, 155 Ark. 193, 244 S. W. 37, which is in some respects similar to the case at bar, but presents a far stronger factual situation for the application of absolute liability. Defendant drilled and capped a gas well. Gas passed through a fissure in the earth and escaped through a crater 950 feet away on adjoining property, attracting crowds to watch the escaping gas throw mud and water high into the air. Plaintiff’s decedent and four other bystanders were killed in an explosion apparently caused by someone’s striking a match to light a cigar. In reversing and dismissing a judgment for the plaintiff, the court found no negligence and then refused to apply Rylands v. Fletcher. “The doctrine .of that case has not been generally accepted in this country, and We think that in its full scope it is directly in conflict with the decisions of this court.” Id. at 200, 244 S. W. at 39.

In spite of the above language, this court along with many others has applied the doctrine of strict liability by calling certain conduct a nuisance. Sharp, op. cit. supra, 89. “The reports are filled with cases where this doctrine has been applied, and it may be confidently asserted that no authority can be produced, holding that negligence is essential to establish a cause of action for injuries of such character.” Czarnecki v. Bolen-Darnell Coal Co.., 91 Ark. 58, 61, 120 S. W. 376, 377. Dean Prosser points out that “there is in fact probably no case applying Rylands v. Fletcher which is not duplicated in all essential respects by some American decision which proceeds on the theory of nuisance and it is quite evident that under that name the principle is in reality universally accepted.” Prosser, Law of Torts, 3rd Ed. 529.

The somewhat confused status of Rylands v. Fletcher in Arkansas was clarified in 19491 when this court decided Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820 and unequivocally adopted the position of the 1939 Restatement of Torts §§ 519, 520. These sections are nothing more than a codification of the principle of Rylands v. Fletcher, with a limitation to an “ultrahazardous activity” of the defendant, defined as one which “necessarily involved a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of utmost care” and “is not of common usage.” See full discussion of Chapman case in Harper & James, Law of Torts (1956) § 28.27 pp. 1592-93 and by Dean Prosser in his 1955 address to the Arkansas Bar Association on “Recent Developments in Law of Negligence,” 9 Ark. L. Rev. 81, 85.

Certain conclusions necessarily follow from the authorities cited above. Prior to 1949 the principle of Rylands v. Fletcher had been expressly repudiated in Arkansas, even though it may have been applied under the guise of calling certain conduct a nuisance. However, application of the doctrine, completely undiluted, would not help these appellants, because it was never applied to the escape of water from a domestic household water system. By no stretch of the imagination conld the use of a lawn sprinkler be called a ‘‘non-natural use” of the land, so as to meet the test applied by Lord Cairns, in modifying Rylands v. Fletcher in the House of Lords. A fortiori, appellants cannot meet the requirements of the 1939 Restatement, Torts §§ 519, 520. Operating a lawn sprinkling system is not an “ultrahazardous activity.”

Since appellants have not under the testimony established either negligence on the part of defendants or a case for the application of the rule of absolute liability, the judgment must be affirmed.

Affirmed.

George Rose Smith, J., disqualified.


author: Carletox Harris, Chief Justice.

text:
    William ORMAN v. O. E. BISHOP, Supt. of Ark. State Penitentiary
    5296
    420 S. W. 2d 908
    Opinion delivered December 4, 1967

      Allan Dish o ugh, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Attv. Gen., for appellee.
   Carletox Harris, Chief Justice.

Petitioner, William Orman, on February 21, 1964, entered pleas of guilty to five counts of robbery in the Pulaski County Circuit Court (First Division). The court sentenced Or-man to a term of twenty-one years on each of the counts, with the sentences to run concurrently. In April, 3967, Orman filed a “petition for a Writ of Habeas Corpus,” which we treát as a petition under our Criminal Procedure Rule No. 1. Counsel for petitioner was appointed by the Circuit Court, and a hearing was conducted in May. At the conclusion of the hearing, the court denied the petition, and remanded the petitioner to the custody of the warden of the state penitentiary. From such judgment, appellant (petitioner) brings this appeal.

The petition asserts that appellant was arrested about November 30, 1964, on three charges of robbery, and placed in jail in North Little Rock. It is contended that he was not allowed to contact anyone, nor was he informed of his right to legal counsel, or the right to maintain silence. The petition further alleges that he was threatened and beaten by the police and told that if he did not sign a statement, his wife (who, according to appellant, had also been arrested) would be given ‘ ‘ time ’ ’ for the robberies, and he would never leave jail alive. It is then asserted that he signed an incriminating statement and was removed to the Pulaski County jail in Little Rock where lie subsequently made bond. After three days of freedom, he was again arrested, and two additional charges of robbery were placed against him. It is contended that he was interrogated and threatened by Pulaski County officers. Appellant stated that he entered a plea of not guilty to robbery, but was informed by the court that if he did not plead guilty to the charges, “lie would never get out of jail.” It is contended that he was sentenced without being properly advised of bis rights to legal counsel.

These allegations are somewhat at variance with some of the proof offered at the hearing by Orman. He stated that, at arraignment, he entered a plea of not guilty himself, and did not have an attorney. However, he admitted that he had employed an attorney (Charles Scales), but he said that he employed this attorney simply for the purpose of getting the money returned that the officers had taken from him when he was arrested. Ho did say that Scales had visited hiin two or three ifferent times while he was in the county jail, and had told him that he should plead guilty to the robbery charges. The evidence reflected that appellant had been charged, along with two other men, James Martin, and John Carson. Orman testified that the court appointed Scales as attorney for the other two men, but did not appoint an attorney for him. According to his testimony, he was beaten with an iron pipe by an inmate in jail, Scrappy Moore, and was taken to the University Hospital, where he remained for a few hours. Orman said that he was told by one of the inmates of the jail that something would happen to him if he didn’t plead guilty, and he decided to enter this plea in order to get away from the jail. “I would rather spend 21 years down there as to be dead.” He insisted that he did not enter a plea of-guilty to robbery, but did say that he had entered a plea of guilty as an accessory, not knowing that an accessory was equally guilty with the principal. Or-man testified that the Circuit Judge said, “If you don’t plead guilty, I will, give you 5 twenty-one year sentences/’

As far as the alleged beatings by the North Little Rock Police are concerned, appellant is entitled to no relief. Officer J. PI. Munns Jr., denied this testimony, stating that not a hand was placed on Orman. Munns testified that appellant stated that he did not want a lawyer, and that the statement Orman made relative to his involvement in the robberies was entirely voluntary on his part. Further, that he had no recollection of Or-man’s wife being arrested, and, in fact, Orman was permitted to make a phone call to his wife, and she visited him. The officer stated that, though not advising appellant that he could have an attorney, Orman was told that he had a right to remain silent, and that anything he said could be used against him in a court of law. We think the evidence, particularly when we view the inconsistencies in appellant’s testimony, preponderates to the effect that he was not mistreated in the North Little Rock jail. Miranda v. Arizona, 384 U. S. 436, had not been decided at the time, and thus is not pertinent in this case. Likewise, though alleged in the petition, there is no evidence, including his own testimony, that Orman, after being placed in the Pulaski County jail, was mistreated in any respect by the officers.

Charles Scales, Little Rock attorney, testified that Orman, while- out on bond, engaged him to secure the return of some money that had been in his possession when he had been arrested. Scales said that he contacted the Prosecuting Attorney, but was told that the state was going to hold the money as evidence in the cases. He testified that at the time Orman appeared before the court for arraignment, appellant was asked if he had a lawyer, and replied, “Yes, Charles Scales.” The attorney stated that he was appointed at the time to defend Martin and Carson, and he visited the three' of them in jail several times to discuss the charges. From his testimony:

“The best of my recollection is that the matter was set for a jury trial and, lo and behold! then one day I read in the newspaper where Bill Orman had taken 21 years and that was the first time I knew that he intended to come np here and enter a plea of guilty.”

The lawyer emphatically denied that he had ever advised appellant to enter such a plea. In fact, it seemed to be the opinion of this witness that there was a good opportunity to have some of the state’s evidence held inadmissible. He said that he had planned on defending Orman before the jury.

H. F. Hemphill, Pulaski County jailer, testified that one morning in February, 1964, he was notified that there was a disturbance in one óf the cells, and an investigation revealed that a pipe, which had been used as the handle of a water bucket had been used by William B. (Scrappy) Moore in striking Orman. Hemphill testified that Moore said that appellant was bothering “some old man” in the cell with him, and he (Moore) resented it, and after an argument, Moore pulled the handle (pipe) from the wringer, and struck Orman with it.

As heretofore pointed out, we find no merit in the allegations of mistreatment on the part of either the city or county officers, but, relative to the voluntary plea of guilty, which seems to be the principal contention, there is evidence that leaves this particular question in confusion. We refer to the statement of the trial court itself.

“Now I would like to give my recollection about him coming over. Of course, the record shows that on 1-6-64 in those five eases that I mentioned, Orman and Martin and Carson appeared, and the record shows that Orman was represented by Charles Scales, and on that day I appointed Charles Scales to defend Martin and Carson. There was a plea of not guilty entered, passed to the February setting to be reset. Martin went to the State Hospital, but Orman did not. On 2-3-64 Orman’s case was set for a jury trial .on July 7, 1964. On 2-21-64 Orman sent word to me, or somebody brought word up here, purportedly from Orman, that Orman wanted to change his plea from not guilty to guilty, and I ordered him brought up, and he was brought before the Court, and on that date he changed his plea in all five cases from not guilty to guilty and received 21 years. I remember when Orman came up here that his bad eye was hanging out on his cheek. One of his arms was pretty well “bunged” up. He had been pretty severely beaten.' I think I asked him at the time who beat him, and I don’t believe he would tell me. Now, I have got a faint recollection of telling him if he would tell me who beat him up that I would hav.e whoever it was indicted for assault to kill. That is my recollection. I may be just wrong about that, but I think I offered to do that, and he wouldn’t tell me. There was some discussion that came up about he didn’t think he ought to have 21 years, and I told him if he wasn’t guilty then not to plead guilty and we would have a jury trial. That’s what £ tell them all. I told him if he wanted a jury trial that we would have a trial on each count and if the jury convicted him that I would stack them. I told him if be was not guilty that lie should not plead guilty. That is what I tell them all. I am sure I told him the same thing. The upshot of it was that he decided he wanted 'to plead guilty and I gave him 21 years, and I am sure I asked him where his attorney was and why he wasn’t present. What he told me, I don’t know. I don’t know whether he made any explanation of it at all. I* don’t remember. That is about the best I recall of it. Of course, I didn’t send for him. I don’t remember the exact words, but I’m sure I asked him where his lawyer was and why he wasn’t with him. Do you want to cross-examine me, Mr. Prosecutor or Mr. Dishongh? I will try to make it clearer if I can.”

There are three matters mentioned that, we think, call for a reversal. One, the court commented, “I remember when Orman came up here that his bad eye was hanging out on his cheek. One of his arms was pretty well ‘bunged’ up. He had been pretty severely beaten.” We do not know what is meant by the expression, “His bad eye was hanging out on his cheek,” but it does appear that Orman had been severely beaten. Bear in mind that, according to his (Orman’s) testimony, the beating, though admittedly not inflicted by . the officers, influenced him in deciding to plead guilty. The second matter that relates to the plea is the fact that Lawyer Scales was not present. Though Orman insisted that Scales did not represent him in these cases, Scales testified to the contrary, and the court docket reflected that this attorney did represent Orman. Here, the judge’s memory was not clear. “I am sure I asked him where his attorney was and why he wasn’t present. What he told me, I don’t know. I don’t know whether he made any explanation of it at all. I don’t remember. ’ ’ Normally, of course, when a man is represented by an attorney, that attorney is present when any action is taken in the case. The most noticeable statement in the court’s recitation of the facts as he remembered them is, “There was some discussion that came up about he didn’t think he ought to have 21 years, and I told him that if he wasn’t guilty then not to plead guilty and we would have a jury trial. That is what I tell them all. I told him if he wanted a jury trial that we would have a trial on each count and if the jury convicted him that I would stack them.” While, of course, a court should explain to a prisoner, when he is entering a plea of guilty, the nature of the charge, and the penalty that it carries under the statute, no statement should he made that could he construed as influencing the prisoner to enter a plea of guilty. While we do not think the remark was so intended, it could have been interpreted by appellant as a threat. When the three matters herein mentioned, vis., a severely beaten prisoner — without his attorney present — and the statement of the court about “stacking” sentences, are all considered together, we think a question arises as to whether the plea was entered voluntarily. Inasmuch as the judge’s testimony relates to this question of fact, and is, as far as the present record is concerned, the most important evidence in the issue here in question (whether the plea of guilty was voluntarily entered), it will be necessary that a different judge conduct a further hearing on remand. That judge then, after hearing the testimony, including that of Judge Kirby, can pass upon the fact questions.

While the court’s remarks more or less indicate its findings, • we take occasion to call attention to Section (E) of Criminal Procedure Rule No. 1, which, inter alia, provides:

“* * * The court shall determine the issues and make written findings of fact and conclusions of law with respect thereto,”

This procedure should be followed in all cases heard under Criminal Procedure Rule No. 1.

We would also like to reiterate what was said in Medley v. Stephens, Supt., 242 Ark. 215, 412 S. W. 2d 823 (March 27, 1967), which is particularly apropos to the case at hand:

“The Court, very properly, on January 4, 1965, (date of appellant’s plea of guilty), had all court pro ceedings relating to the charge against Medley reported by the official court reporter. We think it appropriate to commend the Jefferson Circuit Court for adopting this procedure in receiving pleas of guilty. It will at once be recognized that, in subsequent hearings on petitions for post-conviction relief, after a plea of guilty (wherein allegations are contained that such plea was entered through mistake — or duress — or without being advised of the right to counsel), nothing is left to guesswork. The complete record is available. There is no need for the judge — or the prosecuting attorney — nor any other person — to testify from memory, and we recommend that, where possible, all trial courts, in accepting pleas of guilty, direct that a record be made of all proceedings therein,”

For the reasons herein set out, the judgment is reversed, and the cause remanded.

      The witness stated: “Now, each morning a mop and bucket and wringer is put in the cells for the prisoners to clean up their part themselves, and after they have finished the bucket and wringer is removed. On this particular morning, I was called up there to this disturbance and I found that the handle on the wringer of this bucket was loose from the holder, inasmuch as a bolt had been removed or lost out, and this pipe — I believe probably it was a half-inch pipe — which was used as a handle was easily pulled out, and William B. Moore admitted to me that he took the handle off the wringer and struck Mr. Orman.”

      According to the witness, as punishment, Moore was placed in solitary confinement.

      Meaning that the judgment of the court would direct that the sentences on the several charges, if appellant were found guilty, would run consecutively, rather than concurrently.

      Certainly, the court considered that Orman was represented by Scales, and we think this representation was established by the evidence at the hearing.

       and

      . Our emphasis.