author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Hansel HIGHFILL et ux
    5-5207
    452 S. W. 2d 846
    Opinion delivered April 20, 1970

      Thomas B. Keys, Phillip N. Gowen and Hubert Graves, for appellant.
    /. Marvin Holman, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. The commission, appellant herein, brought an action against Hansel Highfill and wife for the acquisition of 48.77 acres needed for the construction of Interstate No. 40 in Johnson County. The tracts taken in fee simple were designated as 607 and 609, and construction easements were designated 607E and 609E. On trial, Mr. Highfill testified that total damages to his property amounted to $30,000.00. Hobert C. Yarbrough; a witness on behalf of appellees, testified that damages were $25,925.00. Two appraisers on behalf of the commission testified respectively to damages of $10,000.00 and $9,000.00. The jury returned verdict for the Highfills in the amount of $22,000.00 and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the court erred in overruling the commission’s motion to strike the value testimony of Hansel Highfill on the grounds that his figures represented the value of the property to him, rather than the fair market value thereof. It is also contended that the trial court erred in refusing to strike the value testimony of the landowner as to one-half of the difference in the before and after value of the property for the reason that this portion of the landowner’s testimony was predicated on the destruction of or the loss of a dairy business.

We choose to first discuss the second point. Appellant quotes from the testimony on cross-examination asserting that it makes clear that appellees were basing half of the damage testified about on the fact that they had been deprived of operating a dairy business; that this is not an element of damage that can be considered in estimating the damage to the land. The testimony is as follows:

“Q. Let me • ask you this: Is a portion of the damages — And by damages you understand I mean the difference in value — I’m not talking about physical damage to the property. I’m talking about the difference in $60,000.00 and $30,000.00. Is a portion of this because you are not in the dairy business, or because you cannot operate this as a dairy farm?
A. Well, you just can’t operate the thing as it is, with the highway like it is. It has cut that plum out.
Q. What I’m asking is, is a portion of this $30,000.00 that you say you are entitled to, because you can’t operate that as a dairy farm any more?
A. Well, a portion of it would be.
Q. And how much would that be?
A. I don’t know hardly how you would arrive at that.
Q. You don’t know what portion of that $30,-000.00 would be because you can’t operate it as a dairy farm any more?
A. I’d say the biggest portion of it would be because I can’t operate it as a dairy farm.
Q. It would be at least half of that, wouldn’t it?
A. I suppose so.”

Appellant’s attorney moved to strike half the damage testified to by the landowner on the grounds that appellee attributed this percentage of damages to a non-compensable element, which motion was overruled.

We think the court committed error in denying the motion. In a very recent case, Arkansas Highway Commission v. Wallace, September 22, 1969, 444 S. W. 2d 685, we stated:

“Her testimony which formed the basis of the reversal point under discussion occurred on cross-examination. After having testified that the taking had closed down the dairy business, there was this question and answer:

“Q. Are you counting the fact as an element of damages that he is no longer in the dairy business?
“A. That’s right. He is no longer in the dairy business, and the equipment is just there.

“Thereupon the condemnor moved that Mrs. Wallace’s testimony on just compensation be stricken because her figures included an improper element being loss of the dairy business. The request was denied. That element of damage is not proper in ascertaining, in these cases, damages to lands and improvements.”

In City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846, this court said:

“The evidence of the plaintiff also shows that he operated a dairy on his farm at the time the stream was taken as an outlet for the sewer. His dairy business was not a part of the realty, and if the sewer district had instituted condemnation proceedings against the plaintiff it could not have condemned either the cows used by the plaintiff or his dairy business.

“The evidence of"the plaintiff also tended to show that he was unable to sell his milk because his customers believed that it was impure by reason of his cows drinking from the polluted stream. He was allowed to recover damages on ' this account. This was error. The injury to his dairy business was not an element to be considered in estimating the damage to his land. If his land was more profitable to be used in running a dairy than for any other use, its adaptability for that use might be considered by the jury in estimating the damages to his land by reason of the pollution of the stream, but, the court could not allow as an element of damages to his land the loss he suffered in the business of operating a dairy. [Emphasis supplied.] The jury could only consider the injury that resulted to his land, and, as above stated, in determining that fact, the plaintiff should be allowed to show any use to which his property was best adapted, and its depreciation in value by reason of the fact that the stream which ran through his land had been used as a permanent outlet for the sewer.”

The italicized language sets out the proper showing that can be made. For instance, Mr. Highfill could have testified that, prior to the taking, the highest and best use of his property was for a dairy farm, and that the fair market .value was $60,000.00. He could have further testified that, after the taking, the highest and best use of his land was for a small cattle, operation, the value of which was $30,000.00 — but this was not the type of testimony offered. To the contrary, Highfill’s testimony clearly indicates that he was basing his damage -on the loss of the dairy business. In addition to the testimony already quoted, the record reveals:

“Q. Well, then tell me how you arrived at your figure of $225.00 an acre for that land?
A. Because I figured it was worth that to me, the way I was set up with me milking the cows and dairy farming and milk at a good price, I figured that land was worth that much to me.”

Again:

”Q. Describe the property to the jury.
A. Well, I run a dairy on it. There’s 267 acres of it in all; and I milk a bunch of cows, the most part of it for hay, and run the rest of it in pasture, and I have farmed some of it.”

Further:

“Q. Then, your improvements have been damaged, haven’t they?
A. Well, of course. You can’t operate any more like I did before the highway came through there. The barn is not worth anything to me any more, since that went through. The dairy barn is setting out there. It’s not worth anything — it ain’t worth a dime. The way it’s built, I can’t even use it for a storage room or nothing, because it’s built on a ramp style, and you couldn’t use it for nothing any more than just a milk barn. * * *
Q. What other improvements did you have out there, other than your house?
A. My milk and my hay barns and wells, and—
Q. All right, sir. How much of that $15,000.00 represents your milk barn? So far, you’ve said the house is $10,000.00. How much of the other $5,000.00 is represented by the milk barn?
A. The milk barn?
Q. Yes, sir.
A. Well, that milk barn cost me about $1,-200.00 and some odd dollars to build. But the value of it would be — in the way of milking, I don’t know how you figure that.
Q. I’m asking you what part of that other $5,000.00 represents the value of the milk barn?
A. $2,000.00.
Q. And what did the other $3,000.00 represent?
A. It would represent the other barn and other outbuildings.
Q. You had another barn. I believe you referred to that as the hay barn?
A. The barn there at home was used for shelter barn and a hay barn.
Q. Yes, sir. I see.
A. Together. And then' the milk barn is separate from that.
Q. How much would the other barn be worth? What portion of the other $3,000.00 represents the other barn?
A. I’d say $2,000.00.
Q. What’s the other $1,000.00?
A. Well, it’s when I built it I built it for a —Back several years ago when I was selling cream we sold sour cream, and I built this building for a milk house for separators and coolers and so on and so forth back several years ago before I built the milk barn.”

Still further:

“Q. Why is the value of your home reduced?
A. Because I can’t operate my dairy any more, and I’ve got to come to town to work to make a living from now on. The value of my home is out there eighteen miles out of town.

We think the court erred in denying the motion.

As to point one, we also agree that the figures given by Mr. Highfill represented the value of the property to him rather than the fair market value thereof. Here, again, the record is replete with testimony reflecting that appellee’s values were reached on this premise. Mr. Highfill gave the before value of his property as $175.00 per acre, using this as an average. He said that some (the cleared land) would be worth $225.00 per acre, and that the woodland south of the homesite was worth (before the taking) $100.00 an acre. He did not know of any open pasture land immediately before March 1, 1968, which had been sold for $225.00 an acre, but replied that there was “none sold. I can’t tell you of any that sold for that because there’s none sold. It is fronted by five gas wells around there, and there’s none for sale there. You can’t buy any.” Nor could the witness name pasture land anywhere that sold for $225.00 an acre. When asked how he arrived at his figure, he replied with the answer heretofore quoted, “because I figured it was worth that to me, the way I was set up with my milking the cows and dairy farming and milk at a good price, I figured that land was worth that much to me.” It is true that Mr. Highfill made the statement that he was “judging by other property around, people has asked about selling and so on, and so forth, is the way I done it. I figured mine would be worth, judging by theirs — .” Despite that statement, he was unable to give any figure of sales of $175.00 per acre as of March, 1968, nor could he tell of any sales of woodland for $100.00 per acre.

The two appraisers for the state, H. K. McMurrough and Robert Shockley, were unable to find sales of comparable properties in the area, i. e., farms with as much acreage as the Highfill farm. McMurrough mentioned an 80-acre sale, and Shockley mentioned a 100-acre sale; both men estimated the before value of appellees’ farm as $50,000.00; McMurrough testified to damages of $10,000.00, and Shockley estimated damages at $9,000.00.

Though there were but very few sales in the area, and none that seem exactly comparable, the fact remains that it clearly appears that Highfill’s estimate on before and after values was based on the value of the property to him, rather than the market value of same, and the court should have stricken this testimony, since these values had an erroneous base.

Reversed and remanded.

Fogleman, Byrd and Holt, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I would affirm this judgment. I do not think there was any error in the matters treated in the majority opinion. If there was, it was not prejudicial.

The testimony of appellant was not that his damage included loss of his business or the profits therefrom. He was saying, as clearly as a non-expert landowner could say, that the property was no longer available for its highest and best use — a dairy farm. In assessing his damages, he considered his inability to utilize his property for that use for which he thought it most valuable, rather than the loss of his business, his cows or his equipment.

It was shown that the land, formerly used as a dairy farm, had been cut into five separate tracts so that it could not be used either for dairy farming or for cattle raising. The owner also testified that his dairy barn and other barns were severely damaged by reason of these factors. He explained that while he considered improvements on the property to have been of a value of $15,000 before the taking, they were worth only $7,500 after the taking. Highfill concluded by telling the court that there was no way to separate that part of the damages attributable to “not being able to operate as a cattle farm or as a dairy farm.”

I agree that City of El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846, governs. As I see it, the portion of the opinion in that case, which was italicized makes Highfill’s testimony admissible. He has not, and does not, claim any damages for the loss of his business or injury thereto. He only claims the depreciation in value of his land and improvements because a dairy business could not be operated on the land.

This case is readily distinguished from Arkansas State Highway Commission v. Wallace, (September 22, 1969) 444 S. W. 2d 685. The land belonged to Mrs. Wallace. Her husband operated a dairy business. She testified that she was including as an element of damages the fact that her husband was no longer in the dairy business and his equipment was “just there.” Obviously, the inclusion of this element was error. We reversed because Mrs. Wallace’s failure to allocate a specific figure to “business loss” made it impossible for the jury to know the amount of damages claimed for that item.

Neither do I agree that Highfill’s value testimony represented only the value to him. It is true that he said that he figured that the property was worth $225 per acre to him. He gave a good reason for his inability to recite comparable sales. What does one do when there aren’t any? But, in spite of this, a landowner’s value testimony is not rendered inadmissible because he lacks knowledge of market values. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1; Arkansas State Highway Commission v. Drennan, 241 Ark. 94, 406 S. W. 2d 327; Arkansas State Highway Commission, v. Maus, 245 Ark. 357, 432 S. W. 2d 478. It would be improper if based solely upon its worth to the landowner, in the absence of special circumstances not existing here. Highfill described the land taken as good rich land, fenced, consisting of sandy loam, with clay foundation. He valued his 267-acre farm at $45,000 or an average of $175 per acre, saying that some of it would have been worth $225 per acre, while the woodland would, in his opinion, have been worth $100 per acre. He estimated that his house, barns and other improvements were worth $15,000. He also stated:

“I guess the property would be worth as much to anybody else as it is to me, if you want to run a dairy farm it would be worth that much to anybody in conjunction with the rest of the property. The price I gave is the value that it contributes to the operation.
“I placed $7,500.00 on the improvements after the taking. You can’t operate any more like. I did before the highway came through there. The barn is not worth anything to me any more, since that went through. The dairy barn is setting out there. It’s not worth anything — it ain’t worth a dime. The way it’s built I can’t even use it for a storage room, or anything, because it’s built on a ramp style, and you can’t use it for nothing any more than just a milk barn.”

Highfill also testified that the grassland taken for highway use was the most important part of the tract, because he had been mowing from 1,500 to 2,000 bales of hay per year compared with a production of 642 bales last year. Certainly he had the required familiarity with the land. See Arkansas State Highway Commission v. Duff, (May 12, 1969), 440 S. W. 2d 563, In Arkansas State Highway Commission v. Drennan, 241 Ark. 94, 406 S. W. 2d 327, we held that there was no error in refusal to strike a landowner’s testimony very closely parellel to the testimony of Highfill here. We said:

“Most owners of rural lands, like this appellee, are farmers, and also like appellee they are not qualified as land appraisal experts. This does not mean that such owners who have such a close personal relationship to the lands involved have no sense of proper land values in their respective areas. Appellee testified that the actual value of his land had doubled in the last five years, and, when asked on cross examination as to his basis for such testimony, stated that he primarily based the increased valuation on the action of the Federal Land Bank of St. Louis, Missouri, in doubling all of its land values in Western Arkansas in June of the preceding year. No testimony was offered to contradict this evidence. Furthermore, appellee testified that local lands similar to his land would be difficult to acquire at a price of $400.00 per acre. He admitted that this testimony was based largely on what owners were asking for their lands, no recent sales having come to his attention.
“We have never held that the value testimony of owners of land' being condemned is inadmissible because of limitations of the landowner in experience and background in land transactions. If such restrictions were imposed, few landowners would be permitted to testify as to their own values and as to their own claims for damages. We have therefore repeatedly held that a landowner may testify as to his own opinions concerning values before and after the taking of his land.”

In Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1, in sustaining the denial of a motion to strike a landowner’s testimony, we relied upon and quoted from 20 Am. Jur., Evidence, § 892, as follows:

“ ‘It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value.’ ”

I submit that appellee’s testimony has at least as reasonable a basis as did the testimony of landowners in City of Springdale v. Keicher, 243 Ark. 161, 419 S. W. 2d 800; Housing Authority of City of Searcy v. Angel, 239 Ark. 224, 388 S. W. 2d 394; and many other cases.

I would also affirm the judgment in this case upon the authority of Arkansas State Highway Commission v. Ormond, 247 Ark. 2, 448 S. W. 2d 354. Even if Highfill’s testimony be considered improper, reversal is not required because there is sufficient evidence to sustain the verdict and it is manifest that the error was not prejudicial and did not affect the verdict. The testimony of Hobart C. Yarbrough, an expert appraiser, stated his opinion that the damage to the Highfill tract was $25,925. This was $3,925 more than the jury verdict. Neither this witness’ qualifications nor his testimony is challenged. Any error in admitting the landowner’s value testimony did not enhance the award of a verdict for less than the amount for which there is substantial evidentiary support.

Holt, J., joins in this dissent.

      The testimony of the witness is somewhat confusing, since he subsequently stated that he had worked in town for 16 yeais; he also said that he had gotten rid of his cows, and had not sold any milk for two years "because they [Highway Department] kept saying they was coming through, and I had to get rid of them.”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Joseph CROSS v. STATE of Arkansas
    5480
    452 S. W. 2d 854
    Opinion delivered April 20, 1970

      Thomas R. Newman, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This case involves the matter of plea bargaining in criminal prosecutions. Over a period of years there has developed a widespread practice by which an accused person' and his counsel negotiate with the prosecuting attorney for a recommendation of leniency in return for a plea . of guilty to the offense charged or to a lesser offense. Despite the prevalence of the practice, which has certainly become a substantial factor in the administration of criminal justice, this is the first case on the subject to reach this court in a good many years.

The appellant, Joseph Cross, was charged with first-degree rape, to which he pleaded not guilty. The prosecutrix was the accused’s stepdaughter, apparently just four days under sixteen years of age on the date of the offense. By the process of plea bargaining it was agreed between the prosecution and the defense that Cross would plead guilty to third-degree rape in exchange for a recommendation that the court suspend all except two years of the maximum sentence of ten years confinement in the penitentiary.

The change of plea was presented to the trial judge on August 12, 1969. That proceeding was stenographically reported. The court meticulously explained to the accused practically all his rights, but, manifestly by oversight, the judge wholly failed to explain that he was not bound by recommendations for leniency. At the end of the hearing the judge accepted the plea of guilty to the lesser offense but postponed for a few days the determination of the sentence, explaining that he had not studied the report of the accused’s criminal record.

On August 15 the accused and his counsel appeared before the court for the imposition of the sentence. The judge gave his reasons for not following the recommendation that eight of the ten years confinement be suspended. Instead, the court suspended only four of the ten years, so that the period of confinement was three times as long as the accused and his counsel had bargained for.

Defense counsel at once called the court’s attention to the parties’ understanding about the plea of guilty. Counsel also asked for time to brief the law with respect to the accused’s right to withdraw his plea of guilty. The judge, in denying that request, stated (quite erroneously, as far as the record shows) that he had made it clear at the earlier hearing that he would not be bound by the recommendation for leniency. A motion for a new trial and a companion motion were filed and overruled within a day. It was therein stated, without contradiction, that the State had agreed that the accused might withdraw his plea of guilty if the court did not accept the parties’ recommended sentence. (We do not imply that the State’s agreement would be binding on the trial court.)

Upon the facts of this case we have no doubt that the trial court’s action should be set aside. Plea bargaining was discussed in a recent Arkansas Law Review casenote, where this summation of the basic principles appears:

Where the defendant enters a plea of guilty in anticipation of a lighter sentence recommended by the state, and where the court has forewarned the defendant that it was not necessarily bound by the state’s recommendation, it has been held that the court did not exert prejudicial surprise when it meted out a heavier sentence. Thus, the mere fact that an accused, knowing his rights and the consequences of his act of pleading guilty, hoped or believed that he would receive a shorter sentence, a milder punishment, or some like favor by entering a plea of guilty, presents no ground for the withdrawal of the guilty plea. But . . . courts have also indicated that there is a counter-vailing legal principle — that the refusal to grant leave for a change of pleas from guilty to not guilty will be ruled an abuse of the trial court’s discretion when it appears that the plea of guilty was based on a misapprehension of the facts or of the law, or in consequence of a misrepresentation by his own attorney, or the state’s attorney, or someone else in authority. [Casenote, 23 Ark. L. Rev. 281 (1969).]

Substantially the same point of view was expressed by this court sixty years ago in Joiner v. State, 94 Ark. 198, 126 S. W. 723 (1910).

Here the record wholly fails to show that the accused was forewarned by his own attorney, by the prosecutor, or by the court, that the bargain reached by the lawyers would not necessarily be given effect by the court. Thus the record indicates that the accused may have changed his plea to guilty under a misunderstanding about the law. We therefore set aside the sentence and remand the cause with directions that the accused be allowed to withdraw his plea of guilty.

Reversed.


author: Lyle Brown, Justice.

text:
    William E. RUFFIN et ux v. O. M. ATTAWAY, d/b/a ATTAWAY REALTY CO.
    5-5222
    453 S. W. 2d 26
    Opinion delivered April 20, 1970
    [Rehearing denied May 18, 1970.]
    G. E. Snuggs, for appellants.

      J. S. Brooks, for appellee.
   Lyle Brown, Justice.

William E. Ruffin and wife, appellants, brought this suit for rental payments collected by O. M. Attaway, rental agent, covering a house and lot in El Dorado. The Ruffins title was based on a state tax deed. Attaway countered that he had for many years handled the rental property for the long-time record owners and remitted to them, including the period for which the Ruffins sought judgment. Intervention was filed by Barbara Joyce Charles, asserting a minor’s right to redeem from a tax forfeiture. The cause was transferred from law to equity and there tried. From a decree in favor of appellee Attaway and intervenor Charles, appellants, the Ruffins, argue two points: (1) that the Ruffins were entitled to the rentals from June 1964, the date of their deed from the State, to the present; and (2) the intervenor did not adequately deraign her record title.

The evidence to support the intervenor’s interest in the property is undisputed. Intervenor testified that she owned an interest in the lot as one of the two heirs of her mother. The lot was by warranty deed conveyed to intervenor’s mother, Mrs. Curtis Charles, and recorded in 1947. At the time of intervenor’s birth the family was living on the property. Mrs. Charles expired intestate in 1951 and was survived by two children, the intervenor and one who has long since reached her majority. The paternal grandmother, who upon the death of Mrs. Charles took the older child to raise, was in charge of the property for the following eight years. In 1959 the grandmother moved to Detroit and listed the property with Mr. Attaway as a rental agent. Continuously since that listing appellee Attaway has kept the property repaired and rented and applied the net funds to retirement of a mortgage, as directed by the grandmother. The latter owned seven units of rental property which she also assigned to Mr. Attaway’s custody. (She failed to caution Attaway that the involved lot was assessed in the name of Mrs. Curtis Charles, and Attaway overlooked payment of taxes thereon for 1959; hence the delinquency.) Intervenor tendered into court a sum sufficient to redeem and her qualification under our minority statute is not questioned.

The chancellor held that the testimony we have recited was sufficient to establish such an interest of title in intervenor as to permit her to redeem. Appellants contend that the redemptor is required to show a complete deraignment of title from the original patent to the date of sale to the State. Directly to the contrary are such cases as Davis v. Stonecipher, 218 Ark. 962, 239 S. W. 2d 756 (1951); McMillen v. East Arkansas Investment Co., 196 Ark. 367, 117 S. W. 2d 724 (1938); and Cecil v. Tisher and Friend, 206 Ark. 962, 178 S. W. 2d 655 (1944). In Cecil, appellees produced recorded deeds which conveyed the subject land to them; they testified they were the owners and in possession; and no evidence was offered to the contrary excepting the tax deeds on which appellant based his claim. The court held that evidence to be sufficient to meet the contention that appellees had to plead and prove their title from the patent through the mesne conveyances down to themselves. In McMillen it was pointed out that statutes allowing redemption from tax sales receive a liberal construction and it was further said:

In this character of suit we think all that is necessary to be alleged in the complaint is ownership and proof of ownership is all that is required to sustain the allegation. It was not necessary to set out in the complaint appellant’s muniments of title or to make profert of them in the evidence.

Secondly, appellants contend they are entitled to the rental income collected by Attaway from the date of their state deed in 1964 to the date the minor tendered them the full amount of taxes paid by appellants. Appellee denies the validity of the claim on the grounds that he had no notice of any claim to the property and appellants were never in possession. The undisputed evidence concerning notice and possession is very brief. Appellants recorded their tax deed but gave no notice of its existence to appellee or intervenor. Very shortly before appellants, the Ruffins, filed their suit, appellee received a letter from appellants’ attorney advising of the existence of the tax deed. That was in 1968. It is unquestioned that appellants never had possession of the property, nor did they make any effort to gain possession.

Must a record owner who was neither dispossessed nor notified of the existence of a tax deed account to the holder of that deed for rents collected during the subsistence of the deed? That is the specific question with which we are confronted. We are cited to no statute or case from our jurisdiction which is in point. We have several cases which deal with the rights of a tax title purchaser in possession. Examples are Hisey v. Sloan, 180 Ark. 797, 22 S. W. 2d 1005 (1930); and Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d 470 (1944). They hold that the purchaser in possession is entitled to the rents. Cases from most other jurisdictions are not helpful because of their statutes on the subject.

The nearest case in point called to our attention is that of Van Horn v. Huegel, 139 A. 28 (N. J. 1947). There it was held that a purchaser at a tax sale who never gave notice of his purchase or took possession of the property was not entitled to a judgment for rents collected by the forfeiting, owner. The New Jersey statute provided that when the purchaser recorded his certificate of sale he would be entided to immediate possession and to the rents and profits from that date. Of the statute the court said:

The statute is not self-executory. He may be content with the fact that he is entitled to possession at any time, but this alone does not give the purchaser a right to the rents until he asserts that right in some form; a right to the possession of the premises is given by the statute.

We think the reasoning is sound. The rule protects, among others, tenants and real estate agents against a second payment. It gives the owner notice that rents coming into his hands after the notice might rightfully belong to another person.

We hold that until a tax purchaser gives notice or takes possession he is in no tenable position to lay claim to rents or profits from the property described in his purchase.

Affirmed.

George Rose Smith, J., not participating.


text:
    Herbert Lee Brown v. STATE of Arkansas
    5492
    453 S. W. 2d 50
    Opinion delivered April 20, 1970
    [Rehearing denied May 25, 1970.]

      Franklin Wilder, for appellant.

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

Herbert Lee Brown appeals from a conviction on a charge of illegal possession of narcotics. He alleges six errors for reversal, related to the issues of entrapment, the form of the verdict, the admissibility of evidence, the submission of the issue of accessory, and the alleged systematic exclusion of Negroes from the jury panel.

Ft. Smith law enforcement officers had reason to believe that one Angus Triplett, a Negro, was engaged in the illegal narcotics traffic. In an effort to get evidence on Triplett the officials utilized the help of a white girl, sixteen years of age, who undoubtedly had some knowledge of Triplett’s activities. The young girl and her older sister, along with a detective sergeant, stationed themselves in a motel room in Ft. Smith. The young girl called Triplett and asked for a substantial quantity of marijuana. Triplett agreed to deliver it to the motel. After an hour or more elapsed the girl again called and was advised that Triplett’s car would not start; and that he had called a friend, Herbert Lee Brown, who had agreed to pick him up. About an hour later the two men arrived in appellant’s car and entered the motel room at the same time. The detective sergeant had concealed himself in the bathroom but in a position where he could see the girls and the men.

According to the State’s testimony, appellant took from his pocket a matchbox containing marijuana; he threw it on the bed with the remark that they had brought a sample, and that they needed to get the money so they could obtain the balance and deliver it that night. Thereupon the detective entered the room, arrested the two men, and retrieved the matchbox. Appellant testified that Triplett called and asked appellant to drive him to the motel where two white girls were waiting to have a date with them. Appellant insisted that it was Triplett who had the matchbox and threw it on the bed. Triplett did not testify. Our summary of the testimony will suffice for an understanding of most of the points for reversal. Other facts related to particular points will be hereafter recited.

Point I. The trial court erred in holding at the outset of the trial that entrapment was not an issue. In the course of his opening statement the prosecuting attorney alluded to the reasons for the set-up made at the tourist court. The trial judge interrupted and called the attorneys to the bench where he advised them: “I understand the facts of this case and I’m ruling that there is no entrapment.” Attorney Wilder, appellant’s counsel, advised the court of his position that entrapment “is an issue in a case like this.” The court disagreed and exceptions were saved.

We presume the factual contentions of the State and defendants were revealed to the court at conferences preliminary to the trial. The record discloses that the trial judge discussed the cases against both Triplett and Brown with their respective attorneys well in advance of the trial. Information revealed in such pretrial conferences is helpful to the court in enabling the judge to anticipate any unusual legal problems which might arise at trial. At any rate the logical conclusion is that the trial judge concluded from the facts so deduced that the defense of entrapment did not as a matter of law have any place in the case. Therefore, it was thought best to make the ruling at the outset of the trial.

Sound appellate review dictates that such an advance ruling in a criminal trial should ordinarily be accompanied by a record of the proceedings (or stipulation) upon which the trial judge bases his holding. The reasons are so apparent as to obviate discussion. Fortunately it so happens in this particular case that the trial judge’s advance ruling was supported by the evidence. It must be remembered that entrapment is an affirmative defense. No substantial evidence was offered to establish that Triplett was deceitfully persuaded to do anything more than he was already willing to do. See Peters v. State, 248 Ark. 134, 450 S. W. 2d 276. 'Secondly, it is undisputed that appellant was never contacted by an officer or anyone in the State’s behalf. Appellant’s sole contact was with Triplett. Finally, appellant’s defense, to which he testified, is inconsistent with the defense of entrapment. Appellant denied having any connection with, or knowledge of, the marijuana. In that situation he was not entitled to the defense of entrapment. The question was raised in Rodriguez v. United States, 227 F. 2d 912 (1955), and the court said:

Moreover, in refusing to charge the jury on entrapment, the court stated that, the defense was not available where, as in this case, the defendant denies the very acts upon which the prosecution and the defense are necessarily predicated. It is true that this defense may be raised even though the defendant pleads not guilty, but it ‘assumes that the act charged was committed,’ and where the defendant insists, as she did here, that she did not commit the acts charged, one of the bases of the defense is absent. On this ground and for the other reasons mentioned, the district court was not in error in refusing the appellant’s motion or requested charge on entrapment.

The rule stated in Rodriguez is decidedly the majority rule. 61 A. L. R. 2d, p. 677; 21 Am. Jur. 2d § 144, p. 214.

Point II. The verdict is against the law. The first argument under this point is that the court erred in requiring the jury to assess a fine in addition to a penitentiary sentence. Initially the jury returned a verdict of guilty and fixed punishment at two years. The jury was instructed to return to deliberations and amend the verdict by also imposing a fine. Thereupon the jury added a fine of One Dollar. Appellant contends that the statute does not require a fine, that its assessment taints the verdict and requires that it be set asicle. That part of the penalty statute (Ark. Stat. Ann. § 82-1020 [Supp. 1969]) applicable to this case provides that the violator shall be “fined not more than $2,000, and be imprisoned in the State Penitentiary not less than two nor more than five years.” Appellant is asking us to substitute for the word and in the penalty clause the word or, which we refuse to do. When the Legislature used the conjunction and it expressed the intention that the two punishments were to be added one to the other. That is the general sense in which and is used when connecting two phrases of the type before us. The word has been defined, in its conjunctive sense, as expressing the relation of addition. Oliver v. Oliver, 149 S. W. 2d 540 (Ky. 1941).

The second argument under Point II is that the evidence was insufficient to justify an instruction under which the jury could find appellant guilty as an accessory. Appellant did not make that objection known at the time of trial and is not now in any position to complain.

Point III. The verdict is against the evidence. Under this point appellant first attacks the testimony of Mrs. Letha Harrison, a chemist for the State Health Department. We are asked to say that her test of the material was so perfunctory as not to establish a reliable conclusion. We cannot agree. Mrs. Harrison’s credentials showed her to be a graduate in chemistry from Henderson State College. She testified that after graduation she worked in an ordnance plant at Camden and at the same time ran chemical tests for the Arkansas State Police; and that for four months she had been working in the same capacity for the Health Department. She explained that she used a well-recognized professional procedure (Duquanious Test) for testing a portion of the contents of the matchbox. She concluded that the box contained cannabis sativa (marijuana). Our brief summary of her evidence is sufficient to show that it made a question for the jury and we think substantially so.

The second attack on the evidence under this point concerns the proffered testimony of Dr. H. P. McDonald. According to appellant’s counsel, this witness — had he been permitted to take the witness stand —would have testified that marijuana is not a narcotic. Marijuana has long been classified by our General Assembly as a prohibited drug. Ark. Stat. Ann. § 82-1001 (Supp. 1969). The fact that Dr. McDonald might disagree with the legislative pronouncement is of no relevancy in the case.

Point IV. The jury was incorrectly selected. Here appellant relates that there were only two Negroes on the panel of thirty jurors called for service in the case and that the State exercised peremptory challenges on both Negroes. Consequently, avers appellant, he was unconstitutionally denied, as a Negro, equal protection guaranteed by the Fourteenth Amendment to the United States Constitution. Here is the complete record on the point:

MR. WILDER: At this time the defendant would like to make his objection to the fact that there were just a small number of colored people on this panel and that the State has systematically excluded the only colored people available to try this defendant. There was one in each group of twelve that was taken and that was the only challenge exercised by the State that I know of.

No evidence being in the record to support appellant’s assertion on appeal of systematic or intentional exclusion of Negroes from jury service, that phase of his objection must fail. Brown v. State, 239 Ark. 909, 395 S. W. 2d 344 (1965). With respect to the attack on the State’s peremptory challenges, the prosecuting attorney had the right to six such challenges without inhibition.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Leon ASHWORTH et ux v. Mrs. H. C. HANKINS
    5-5081
    452 S. W. 2d 838
    Opinion delivered April 20, 1970

      Murphy ir Carlisle, for appellants.

      Putman, Davis & Bassett, for appellee.
   John A. Fogleman, Justice.

This is the third appeal in this case. See Ashworth v. Hankins, 238 Ark. 745, 384 S. W. 2d 254 and Ashworth v. Hankins, 241 Ark. 629, 408 S. W. 2d 871. We remanded the case to the chancery court for a hearing on appellants’ prayer for specific performance or, in the alternative, for damages for breach of contract. After hearing the testimony of Mrs. H. C. Hankins and the rebuttal of Leon Ashworth, the chancellor held that appellants were not entitled to either specific performance or damages. The denial of relief was based upon the court’s finding that appellants had repeatedly breached the contract for sale of realty involved, that the Hankinses had the right to, and did, declare a forfeiture, and that there was no conduct on the part of the Hankinses which constitutes a waiver of their right in this respect.

Appellants assert six points for reversal. In view of the disposition that we make of the case, it becomes unnecessary for us to discuss their argument that they were entitled to recover for damages if the remedy of specific performance was not available to them because of impossibility. The other five points are thus stated:

1. The dismissal of appellants’ complaint by the chancellor was contrary to the evidence and contrary to the law and the evidence.

2. The equitable maxim of equity abhors a forfeiture is controlling in this case.

3. Even if a forfeiture could have been declared under this contract, appellees expressly waived any forfeiture by direct words and actions.

4. The authorized agent of appellees expressly waived any forfeiture-and such waiver is binding on the appellees.

5. It was error for the chancellor not to admit the conversation had between Mr. Ashworth and Mr. Perkins into evidence.

The background gleaned from the opinions on the prior appeal and the abstracts on this appeal is as follows: ■

In 1953 H. C. Hankins and his wife contracted to sell the realty involved in this litigation to Mr. and Mrs. Floyd Mabry for $6,000 to be paid in monthly installments of $50 each. In September of 1960, the Mabrys assigned this contract to appellants with the consent of Mr. and Mrs. Hankins. Appellants assumed the obligations of the Mabrys. The Ashworths were repeatedly delinquent in making their monthly payments, and the delinquency continued as much as three months on several occasions. During the 15 months preceding the filing of this suit, Mr. and Mrs. Hankins on several occasions accepted multiple payments on these delinquencies. The last payment by the Ashworths was made in June of 1962 and left a balance of $2,205.47 on the principal indebtedness.
On October 18, 1962, appellants filed this action and tendered the full amount which would have then been due under the contract. They filed notice of lis pendens simultaneously. The chancellor, in March of 1963, sustained a motion by the Hankinses to dismiss the complaint for insufficiency of the evidence on behalf of appellants. During the pend-ency of an appeal from that action, Mr. and Mrs. Hankins conveyed the property to Ollie Tackett by deed dated May 24, 1963,-and recorded May 29, 1963. We reversed on November 30, 1964, holding that appellants had made a prima facie case for specific performance in view of equity’s abhorrence of forfeitures requiring that the slightest circumstances indicating waiver be seized upon to avoid the consequences.
Thereafter, the chancery court granted a motion to dismiss appellants’ suit for want of jurisdiction, because of the transfer of the property. We reversed, holding that the statutory lis pendens notice followed the litigation to its conclusion. The decree now before us was rendered after completion of evidence following the remand on the latter reversal.
H. C. Hankins died between the' remand and the completion of the trial. Mrs. Hankins was the only witness to testify adversely to appellants. She testified that the Ashworths failed to pay insurance premiums and taxes as required by the contract. She stated that five letters written by Hankins were posted in the mails. The fourth of this series advised that if full payment of all delinquencies were not made by September 1, 1962, the sellers would take the property back. When payment was not made by that time she and her husband went to Ashworth’s place of business. The parties agree that an extension was then granted. Ashworth claimed that a sale of the property had been made which would enable appellants to pay the remaining balance. Mrs. Hankins testified that an undated letter was written and posted after the visit to Ash-worth before September 26 confirming that date as the deadline. Ashworth denied ever having received that letter. When payment was not made on the date specified, the Hankinses took possession of the property, commenced repairs and redeemed the property from delinquent tax sales. They also withdrew documents they had placed in escrow to be delivered when the payments required had been made by the purchaser.

Appellants’ argument is that the preponderance of the evidence showed that there had been a waiver of the right of forfeiture. They rely upon the habitual acceptance of delinquent payments and the extension of time allowed in September 1962. They also rely upon the denial of Ashworth that he ever received the Hankins letter indicating a deadline of September 26, which admittedly was undated and bore the name of no addressee. Mrs. Hankins was very positive that this letter had been addressed to the Ashworths and properly posted. Yet as the chancellor pointed out, no payment was actually tendered until shortly before the filing of this suit on October 18. Appellants contend that they thought they had as long as necessary for their purchaser to obtain a loan for the purchase money. On the testimonial conflict the chancellor held against appellants and we are unable to say that his holding was against the preponderance of the evidence.

Appellants also support their argument that there was a waiver of forfeiture by contending that the closing of the loan was delayed because the abstract of title, released to them when the extension was granted, disclosed that the title was not marketable because of a power and light company easement across the property. If this was the case, appellants never advised either Mr. or Mrs. Hankins of this impediment. Ashworth testified that he did not communicate with either Mr. or Mrs. Hankins but, after September 26, conveyed this information to Mr. Rex Perkins, the attorney for the Hankinses, who had died before the trial. Evidence of this communication and of the attorney’s alleged grant of a further extension was properly excluded by the chancellor.

There was no evidence that this attorney had been clothed with authority to grant an extension or waive any rights of his clients, by express grant or by their conduct, as was the case in Laird v. Byrd, 177 Ark. 1114, 9 S. W. 2d 571. In order to prevail on the ground that Perkins was the agent of Mr. and Mrs. Hankins, it was incumbent upon appellants to show that he was more than just an attorney to advise the vendors with reference to the transactions taking place, to receive payments which appellants might make, or to represent them in closing when the payment was made. Taylor v. Connell, 233 Ark. 440, 345 S. W. 2d 4. See also United Equitable Ins. Co. v. Karber, 243 Ark. 631, 421 S. W. 2d 338; Clark v. Deupree, 177 Ark. 384, 7 S. W. 2d 1; Armitage v. Morris, 215 Ark. 383, 221 S. W. 2d 9. The mere retainer of an attorney does not clothe him with authority to grant an extension of time, waive a forfeiture, alter the terms of a contract or act otherwise beyond the scope of his actual or apparent authority. Cullin-McCurdy Const. Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S. W. 1023; Pickett v. Merchants’ National Bank of Memphis, 32 Ark. 346.

There is no doubt that a vendor may, by his acts and conduct, waive his right of forfeiture. Such a waiver will be found to exist when the vendor habitually accepts delinquent payments. It has been held that a vendor’s acceptance of payment of a past due installment, after notice to the purchaser that forfeiture would be declared if that installment and the accumulated delinquent balance were not paid on the due date, lulled the purchaser into feeling assured of an extension for the next subsequent payment so that forfeiture..could not be enforced for nonpayment. Triplett v. Davis, 238 Ark. 870, 385 S. W. 2d 33. Those circumstances do not exist here. Appellants were reminded by letter of March 22, 1962, that payments were more than two months delinquent and Ashworth had been told that he must make these payments on time, and warned that if they were not made, Hankins would take over the property. By letter of April 6, appellants’ delinquency on tax payments and default in maintaining insurance on the property were called to their attention with a notice that failure to take care of these items would result in forfeiture. This threat, with an insistence that appellants comply with the contract, was repeated by letter of May 4. Finally, the letter of August 22, 1962, was notice that the Hankinses would take over the property unless payment in full were made by September 1. The specific granting of an extension after this deadline was no basis for appellants to believe that still further extension would be granted. But, thereafter, the undated letter advised appellants that payment in full was expected, as promised, by September 26, and, if not made, the Hankinses would take over the property. Neither appellants, nor their purchaser, made immediate tender of the balance due upon notice or before the forfeiture had been effectuated as was the case in Triplett v. Davis, supra, and Turpin v. Beach, 88 Ark. 604, 115 S. W. 404. Nor is this action by one who had acquired rights in the property from the purchaser, before the forfeiture was declared by the vendor, as was the case in Braddock v. England, 87 Ark. 393, 112 S. W. 883. In this case it was made abundantly clear that, in spite of past conduct, further indulgence could not be expected. The right of a vendor, who, by his conduct, has waived right to declare a forfeiture, to reinstate that right by a clear and definite notice allowing the purchaser a reasonable opportunity to pay has been clearly established. Hodges v. Campbell, 211 Ore. 428, 316 P. 2d 312 (1957); Arizona Title Guarantee & Trust Company v. Modern Homes, Inc., 84 Ariz. 399, 330 P. 2d 113 (1958); Cleland v. Cleland, 7 Ohio Op. 2d 206, 152 N. E. 2d 914 (Ct. Com. Pleas, 1958); Atchison Sav. Bank v. Richards, 131 Kan. 81, 289 P. 975 (1930); Grippo v. Davis, 92 Conn. 693, 104 A. 165 (1918); Great Western Inv. Co. v. Anderson, 162 Wash. 58, 297 P. 1087 (1931); Los Angeles Inv. Co. v. Wilson, 60 Cal. App. 53, 212 P. 211 (1923); Sliwinski v. Gootstein, 234 Mich. 74, 208 N. W. 47 (1926); Drake v. Lippman, 234 Mich. 80, 208 N. W. 50 (1926); Moore v. Kelly, 57 Okla. 348, 157 P. 81 (1916); Tait v. Reid, 158 Iowa 466, 139 N. W. 1101 (1913). While we are not aware of any Arkansas case that turns upon this point, it was clearly indicated in Berry v. Crawford, 237 Ark. 380, 373 S. W. 2d 129, that waiver by conduct such as was involved here extends only to the right of forfeiture without notice.

There was no statement or conduct on the part of Mr. or Mrs. Hankins subsequent to the clear declaration of their intention to declare a forfeiture after September 26, from which it could be said that a different intention could be inferred, as was the case in Vernon v. McEntire, 232 Ark. 741, 339 S. W. 2d 855. The facts here are more nearly in accord with Souter v. Witt, 87 Ark. 593, 113 S. W. 800, where we held that the right of forfeiture by a vendor was not lost in the absence of any conduct on his part that would warrant the purchaser’s belief that time for payment would be extended beyond the date the last payment was due, even though the vendor had always been willing to extend the time for payment of other indebtedness the purchaser had owed him and had told the purchaser after the contract was made that it would be all right if all the notes evidencing the purchase price were paid by the time the last one was due. In that case, as here, the vendor promptly asserted his right to a forfeiture after the last note was due.

We are unable to say that the findings of the chancellor are against the preponderance of the evidence.

The decree is affirmed.

      H. C. Hankins was an appellee, bul he has died and no revivor appears in the retold.

      These defaults were never remedied.


text:
    HOME INSURANCE CO. v. Mrs. P. M. DEARING
    5-5247
    452 S. W. 2d 852
    Opinion delivered April 20, 1970

      Terral, Rawlings, Matthews ir Turtle and Schieffler & Murray, for appellant.

      Daggett 6* Daggett; By: James R. Van Dover, for appellee.
   John A. Fogleman, Justice.

On May 14, 1967, appellee and one J. Q. Floyd were involved in an automobile collision, while each was driving his own vehicle. Appellant carried the collision insurance on Floyd’s vehicle. Floyd instituted a suit to recover from appellee for his personal injuries and for damage to his motor vehicle. After settlement negotiations between the attorneys for the parties, Floyd’s attorney advised appellee’s attorney by letter dated November 21, 1967, that Floyd would amend his complaint to eliminate any claim for damages to his automobile and then accept appellee’s settlement offer of $6,000. In concluding, this attorney stated:

“* * * I realize that this would be an increase in your offer, and I also realize that the insurance company would probably make claim for reimbursement of subrogation, but this is the basis by which I feel a settlement would be reached.”

Thereupon the suggested amendment was made and a copy thereof furnished to appellee’s attorney. The settlement was then concluded. An order of dismissal of Floyd’s suit with prejudice was entered on November 28, 1967. Thereafter, Floyd first made claim agáinst appellant, who paid him $2,348.83 for collision damage on January 8, 1968, when Floyd executed a proof of loss giving appellant subrogation rights against appellee. The present action was later instituted by appellant against appellee, seeking recovery of the amount it paid Floyd. There was no allegation of fraud or collusion on the part of the parties to the settlement.

Appellee’s defense of res judicata was sustained by the circuit court and appellant’s complaint dismissed.

Appellant admits that res judicata would have constituted a complete defense under the principle applied in Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491, except for the concluding sentence in Floyd’s attorney’s letter. It argues that appellee was thereby put on notice that appellant would have subrogation rights, so that our decision in Sentry Insurance Company v. Stuart, 247 Ark. 2, 439 S. W. 2d 797, governs. There we said that no act of the insured releasing a wrongdoer from liability could defeat the insurer’s rights when it was done without knowledge or consent of the insurer, and the wrongdoer had full knowledge of the insurer’s right of subrogation. A settlement made by the tort-feasor under those circumstances was held to constitute consent to a splitting of an otherwise indivisible cause of action. That case, however, may readily be distinguished from this, because that settlement was made after payment had been made by the insurer to its insured, and notice of the consequent subrogation rights had been given to the alleged tort-feasor by the insurer. Recovery by the insurer was permitted upon the basis of the tort-feasor’s knowledge of the payment of the insurer’s liability to the insured.

Appellant here had acquired no subrogation rights and had given no notice to the tort-feasor. As stated by the circuit judge, Floyd was the owner of all claims accruing from the collision when the dismissal order was entered. Appellant admits that it had no subrogation rights at the time the letter was written. These rights could not come into existence until appellant had paid Floyd’s claim. Haley v. Brewer, 220 Ark. 511, 248 S. W. 2d 890; North Arkansas Milling Co. v. Lepari, 231 Ark. 965, 333 S. W. 2d 713. Floyd’s attorney’s letter cannot be construed as a notice on behalf of appellant and merely constitutes a prediction on his part. It clearly indicated that appellant had not then paid Floyd’s claim. As noted in Sentry, the settlement there was effectuated without a court judgment or the filing of a suit.

We further point out that there was no agreement by Mrs. Dearing that the cause of action be split, as was the case in St. Paul Fire & Marine Ins. v. Wood, 242 Ark. 879, 416 S. W. 2d 322. Advice of steps to be taken by appellant’s insured before he accepted her settlement offer, which obviously required a dismissal of his cause of action with prejudice, did not and could not constitute an agreement on her part that the cause of action, then owned by Floyd exclusively, wás or could be split.

The judgment dismissing appellant’s complaint is affirmed.


author: J. Fred Jones, Justice.

text:
    Tim BOWDEN v. David OATES et al
    5-5226
    452 S. W. 2d 831
    Opinion delivered April 20, 1970

      Irwin, Streett ir Braden, for appellant.

      Williams if Gardner, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Tim Bowden from a judgment of the Pope County Circuit Court, affirming an order of the county court, laying out and establishing a private road for David and Bill Oates over Bowden’s land.

David and Bill Oates are co-owners of land in the Northeast Quarter of Section 8, Township 7 North, Range 19 West in Pope County. The appellant Bowden owns the west half, and a Mr. Yarbrough owns the east half, of the east one-half of Section 5 immediately north of the Oates property. A county road runs east and west along the north boundary line of the Bowden and Yarbrough properties in Section 5. The south boundary line of the Bowden and Yarbrough properties forms the north boundary line of the Oates property, and this line is one mile south of the county road.

David Oates filed a petition in the Pope County Court under authority of Ark Stat. Ann. § 76r110 (Repl. 1957), for the laying out and establishment of a private road over adjacent lands from the county road to his own land. The sufficiency of the petition and the procedure followed under it, and under the statute, are not specifically questioned here, but Mr. Bowden contends that the case should be remanded to the circuit court for a new trial and he relies on the following point for reversal:

“The order of the county court was not in accordance with the report of the viewers and the judgment of the circuit court is not in accordance with the report of the viewers and in fact the viewers report is so vague that a valid order could not be entered thereon.”

We agree with the appellant that this case should be remanded for a new trial. The statutory procedure for establishing a private road through lands of another is set out in Ark. Stat. Ann. § 76-110 (Repl. 1957) as follows:

“When the lands, dwelling house or plantation of any person is so situated as to render it necessary for the owner thereof to have a private road from such lands, dwelling house or plantation to any public road or navigable watercourse over the lands of any other person, and such person shall refuse to allow such owner such private road, it shall be the duty of the county court, on the petition of such owner, and it appearing that he hath given to such, person twenty [20] days’ notice of such intended application, and that it is necessary for petitioner to have such private road, and that said person will not allow the same, and on said petitioner having first deposited with the clerk of said court a sum of money sufficient to pay all costs and expenses accruing on account of said petition, notice, view and survey of said private road, to appoint the viewers to lay off said road. Such viewers shall take the same oath, and shall be governed in all respects as viewers appointed to public roads are governed under this act. They shall examine the route proposed for such road, and any other route which they may deem proper, and; if they or a majority of them, shall be of opinion that a private road is necessary and proper, as prayed in the petition, they shall lay out the same in such manner as to produce the least inconvenience to the parties through whose land the same shall pass, and shall make a written report to the county court, describing the route of the road and the land through which the same shall pass, naming the owner thereof, if known, and the damages* sustained by each owner of lands through which such road passes, which damages shall include the value of the land of each owner sought to be appropriated. Such report shall be recorded on the records of said county court.” ^

The order for the establishment of a private road is provided for by Ark. Stat. Ann. § 76-111 (Repl. 1957) which reads as follows:

“If, upon the return of the viewers, the Court shall be of the opinion that it is necessary for the petitioner(s) to have said road from his said lands, dwelling house, or plantation, to said public road, or navigable water course, and said petitioner shall pay all costs and expenses, accruing on account of said petition for such private road, and all things relating thereto and following therefrom, including, the view and survey of said road and said damages sustained by each owner of the lands over which such road passes, an order shall be made establishing the same as a private road not exceeding thirty (30) feet wide, and the person applying for such road may proceed to open the same. Either party may appeal to the Circuit Court from said order within sixty (60) days from the rendition of such order, and not thereafter.”

A case on appeal from a county court to a circuit court is tried de novo by the circuit court as other cases at law. (Ark. Stat. Ann. § 27-2006 [Repl. 1962]).

The record indicates that the three viewers appointed by the county judge made two separate trips to view the property involved, and that on their first trip they laid out the route for a road as well as appraised the acreage value of the property to be taken. The record is not clear as to why the viewers made the second trip to view the property, but the record indicates that on the first trip they attempted to lay out the road along the quarter section line with a part of it on the east side of the line which would be on Mr. Yarbrough’s land, and part of it on the west side of the line which would be on Mr. Bowden’s land. An undated typewritten report of the viewers, together with a plat they apparently prepared, was apparently filed with the county court, The report reads as follows:

“Beginning at NW corner of NE NE of Section 5, Township 7, Range. 19 West thence go South 14 mile with a 10 ft. right of way on the East line and a 20 ft. on the Vest side thence continue South with 15 ft. right of way' on the East side and the West side to East-West line of Oates Property. Must be fenced by buyer on the West side, of road.
“Appraised $150.00 per acre.”

On a separate page of the transcript appears a handwritten instrument, or statement, dated November 21, 1968, and signed by the three viewers. It is not clear whether this instrument is intended as a separate written report or an amendment or supplement to the typewritten report, but it reads as follows:

“It is our opinion a line should be established and the road built 30 feet West of line for one mile running North and South.”

The prime difficulty, and our reason for reversal, lies in the county court order which we set out in full as follows:

“Now on the 24th day of February, 1969, comes on to be heard the report of the viewers heretofore appointed by this court to view land adjacent to:
The Northeast Quarter of the Northeast Quarter and the East half of the Northwest Quarter of the Northeast Quarter, the Southwest Quarter of the Northeast Quarter, the Southeast Quarter of the Northeast Quarter and the Northeast Quarter of the Southeast Quarter of Section 8, Township 7 North, Range 19 West, located in Pope County, Arkansas.
for the purpose of describing the best route for an access road to said premises, damages to be sustained by the owner of the land determined to be the best route; and from said report the court doth find:
That a road should be established along the East 30 feet of the West half of the East half of Section 5, Township 7 North, Range 19 West. It is further ordered and decreed that said road shall be located immediately West of a fence (that reportedly runs along the East line of the West half of the East half of said section.) It is further ordered and decreed that the petitioners herein shall pay to T. E. Bowden the sum of $150.00 per acre or fraction thereof for all lands taken pursuant to this order.” (Our emphasis).

On appeal from the county court the case was tried de novo before a jury in the circuit court, and after both sides had rested, the record reveals in-chamber proceedings as follows:

“Mr. Irwin: I would like to ask the Court to direct a verdict in our favor, because of the fact that a necessity has not been shown.
The Court: Over-ruled.
Mr. Irwin: Note our exceptions.
Mr. Gardner: I would like for the jury to be instructed it is their duty to find out if the Oates— if this route is the most feasible to use.
The Court: Sure. The necessity and feasibility is what we have here and nothing more.”

The court then instructed the jury as follows:

“Ladies and gentlemen of the jury, you have heard the testimony in this case. Without going through all the formalities of giving the instructions, this law suit, as I told you at the beginning is the right to use property belonging to another person. The law gives an individual that right. The mechanics of it are set up that the county court— County Judge — appoints three persons who are known as appraisers or viewers. They go out and look at the property and come back and make their findings:
These people have testified and their testimony is before you. The thing that you will be instructed on by the Court is the necessity and feasibility of this roadway.
You’ve also heard testimony that the feasible, or the logical place to place the road, if you so find, would [be] the east 30 feet of the Bowden property.
It is undisputed as the value of that property. Without commenting on the testimony, it’s virtually stipulated, if it’s not so, that the value of such land was $150.00 per acre.
Now, under the form of the verdicts which we will submit to you, you will not be required to figure out the amount of dollars and cents involved in it, whether it’s worth $150.00 or what. The first form of your verdict, ‘We, the jury, find for the petitioner, David Oates and Bill Oates, and assess their liability in the amount of $_ per acre.’ Signed by one of your body as foreman.
If you do not find that this roadway is feasible, or a necessity exists, then the form of your verdict will be, ‘We, the jury, find for the respondent, Tim Bowden,’ again signed by one of your body as foreman.”

After hearing the testimony of Mr. Oates, Mr. Bowden, and the three viewers; and after receiving the above instructions without objection, the jury returned its verdict as follows:

“ ‘We, the Jury, find for the Petitioners, David Oates and Bill Oates, and assess their liability in the amount of $150 per acre.’

The judgment of the circuit court, omitting the formal parts, is as follows:

“IT IS THEREFORE BY THE COURT CONSIDERED, ORDERED AND ADJUDGED that the liability of the Petitioners, DAVID OATES and BILL OATES, be assessed at One Hundred Fifty Dollars ($150.00) per acre.”

There is no objection in the record to the form of this judgment, but we agree with the appellant that it “is not in accordance with the report of the viewers.” We also agree with the appellant that the county court order was not in accordance with the report of the viewers, and that the viewers’ report is vague and indefinite when the typewritten portion is read in connection with the handwritten portion or statement, and they both are compared with the plat.

In the 1944 case of Roth v. Dale, 206 Ark. 735, 177 S. W. 2d 179, the county court entered an order, as prayed in the petition, and directed that:

“A strip of land 25 feet wide, off the south side of the southwest quarter, northeast quarter, section 10, township 10 north, range 1 east, owned by defendant, running the entire length of the 40-acre tract, be laid off as the road.”

On appeal from the county court order, a circuit court jury rendered a verdict as follows:

“ ‘We, the jury, approve the establishment of the road in question, and fix the damages of the defendant at the sum of $200.’ ”

The circuit court judgment affirmed the order of the county court, and in affirming the circuit court on appeal, this court said:

“Before the trial in the circuit court, the defendant filed a motion to dismiss, for the reason that the report of the viewers and the judgment of the county court thereon were so indefinite that the road could not be located. We think this motion was properly overruled. The order of the court was ‘To lay off a strip of land 25 feet wide off the south side of the southwest quarter of the northeast quarter of section 10, township 10 north, range 1 east, owned by defendant, running the entire length of the 40-acre tract of land.’ ”

However, in the recent case of Armstrong v. Cook, 243 Ark. 230, 419 S. W. 2d 308, a county court in laying out a private road adopted the viewers’ description as follows:

“We recommend that a 20 foot road be built at the same location where the old road is now. There will be no damage to the Cook Farm in the construction of this road.”

The circuit court, on appeal, vacated the county court order, and on appeal to this court we said:

“If that report, along with the order of the county court, were recorded, it is apparent that the description is so vague that the road could not be located from an examination of the records.”

We pointed out in Armstrong that the county court failed to follow the statutory requirements in several respects, but we held that the circuit court should have tried the case de novo.

In the case at bar, the notices of appointment sent to the viewers by the county clerk seem to assume the necessity for a private road into the Oates’ land. The notices are as follows:

“You are hereby notified that you are appointed by County Judge Wayne Nordin of Pope County Arkansas to view the land of David and Bill Oates, together with, surrounding land to determine the best and most economical means together with location of a Private Road into their land.
You are further notified to be present at the Office of Pope County Judge, Wayne Nordin of Pope County Arkansas on the 7th. day of October 1968, at 10:00 A.M., for the purpose of receiving your instructions.”

The record reveals no additional instructions from the county court, but the circuit court considered the necessity and feasibility of the road as the only matter before the court and jury for determination.

It is obvious from the record that the viewers were all three well acquainted with the property involved. It is apparent, however, that neither of them, nor the appellant, knew where the quarter section division line lay between the Bowden and Yarbrough properties. It might appear that regardless of the exact location of the division line between Bowden and Yarbrough, it was the intention of the viewers, as well as the county court, to lay the road out on Bowden’s land and to stay clear of Yarbrough’s land. I'j is apparent, however, that the land claimed by Yarbrough had been cleared, terraced and set in orchard and the adjacent land west of that cleared by Yarbrough, was undeveloped and grown up in bushes.

Apparently the viewers assumed that Yarbrough had only cleared and built terraces to his fence on the quarter section division line and they attempted to lay out the road just outside the land cleared by Mr. Yarbrough and along the east edge of Bowden’s land, which was grown up in bushes. One of the viewers, Mr. Robards, lives on his own land joining Yarbrough’s on the east, and he testified, in part, as follows:

“We based our opinion on the farms involved, the road which we are undertaking to — the strip of land which we are undertaking to build the road on, or request that it be built, you would call it waste land. It’s ditches, fence rows, and it has very little value to it, which if a road was built, it would value both farms — all parties concerned.
* * *
. . . the second time we were sent out there we were instructed not to set a price, that that would be left up to the Court.
Q. You had given the price the first time?
A. Yes, the first time.
Q. All right, where did you establish the line— Where did you establish the land that the road was to be built?
A. I believe in our report we signed I recommended, the fact is I was the one that dictated the report, that a line he established between the estates of Loyd Yarbrough and Tim Bowden, and that the road be built 30 feet west of the established line.
* * *
A. I’m not so surfe that there is not a few apple trees comes within twenty foot of what we would assume the line to be. I just assume the line.” (Emphasis supplied).

Benton Jones, another viewer, testified, in part, as follows:

“Q. Where did you all determine to be the most practical and feasible place to put the road?
A. You’re asking about the last time we was there?
Q. Yes, sir.
A. From the established line, the west side, which would be on Tim.
Q. It would be on Tim?
A. Yes.
Q. It would be on the line — are we speaking about the line between Mr. Bowden and Mr. Yarbrough?
A. That’s the line I was speaking of.
Q. It would be 30 feet west of that line. That would be in line between the East Half of Section 5 and the West Half of Section 5?
A. I’m not familiar with the section, but if you will show me that map, I’ll be glad to show you.
Q. (Shows him the map) This line runs right here between Mr. Yarbrough and—
A. It’s this line.
* * *
A. Mr. Irwin, I don’t know about how wide that strip would be. I don’t know where the line is. Loyd goes down the side of his orchard, all the way around the side of his place. He won’t set a tree that he can’t get around.
* * *
Q. Now, did you all consider running that road on up on the outside of Loyd’s trees?
A. Well, the first thing that we considered, and you know how it come in here, the first was to give half and Tim half—
Q. That’s' right.
A. And then the way I understood it, when Loyd had it surveyed, he was already over on Tim. As far as I’m concerned, I will tell you I don’t care where the line is, and I wouldn’t care care to leave it that way, if you want to talk about it, but it didn’t suit nobody, so I wound up, there was three of us signed it, but it all come off of Tim.”

Mr. L. B. Fendley, the third viewer, testified, in part, as follows:

Q. It’s been testified that the route you all selected was an area 30 feet west of a line between Mr. Bowden and Mr. Yarbrough?
A. That’s true.
Q. Was that, in your opinion, the most practical and feasible route for that road to be located on?
A.Yes, sir.”

On cross-examination Mr. Fendley testified as follows:

“Q. Do you know where that line is, Mr. Fendley?
A. I’m not worried about where it is. That’s up to the surveyor.
Q. It’s up to somebody anyway?
A. It’s up to the surveyor, ever where the surveyor surveyed. We said 30 feet west of the line.
Q. Did you see the survey?
A. Did I see the survey?
Q. Yes.
A. They had some stuff down there, but I don’t know whether that was it or not.
Q. Do you know whether or not Mr. Bowden and Mr. Yarbrough agreed on the location of the line?
A. All I know is where he’s got the fence posts set. ”

Mr. Bowden testified, in part, as follows:

“Q. Tim, do you and Mr. Yarbrough know where your east line is and where his west line is?
A. No.”

The typewritten report of the viewers standing alone with the plat appears definite enough to be followed had the county court, and the circuit court on appeal, seen fit to do so. (See Roth v. Dale, 205 Ark. 735, 177 S. W. 2d 179). The line referred to in the typewritten report is obviously in reference to the division line between the east and west halves of the east half of Section 5, which is also the division line between the Bowden property on the west and the Yarbrough property on the east. The plat, however, shows a well-defined and affirmatively designated fence an unmarked number of feet west of the west boundary line of the proposed road. The designated fence is obviously more than 20 feet west of the division line between the east and west halves of the half section according to the plat. Yet, the county court, in an attempt to follow the viewers’ handwritten statement, or supplemental report, attempted to establish the road as if laid out over the east 30 feet of the west half of the east half of Section 5, and at the same time establish it “immediately west of a fence (that reportedly runs along the east line of the west half of the east half of said section).” If the plat is correct, then the county court’s order is wrong because according to the court order the fence is “reportedly” in one place and according to the plat, it is obviously in another. The judgment of the circuit court, on trial de novo, does not mention the road or the fence, but simply amounts to an affirmance of the county court order.

As already pointed out a county court order was held invalid for indefinite description in Armstrong, but error was found in dismissal by the circuit court, as it is the duty of the circuit court to try a case de novo on appeal from the county court.. In the case at bar, the description in the county court order is not so indefinite as it is conflicting, if the plat accompanying the viewers’ report is to be considered. The court order, in effect, not only tends to establish the fence as a division line between Bowden and Yarbrough, but according to the plat, tends to move and establish the quarter section line to and along the fence. We are of the opinion that an attempt to lay out a road as directed in the court order would complicate, and add potentially interested parties to an already potential land line dispute between neighbors.

Although the road here involved is referred to in the pleadings and in the statute as a “private” road, when it is laid out and established it will be public to anyone who has occasion to use it, and its description should be definite enough not only to be located trom land records, but its location should be definite enough to avoid future litigation.

This cause is reversed and remanded to the circuit court for a trial de novo on the merits, as other law cases are tried.

Reversed and remanded.

Byrd, J., dissents.

      This undated report bears no filing mark.


author: Frank Holt, Justice.

text:
    Claude RICE and Charlotte Rice v. Merle A. WHITING et al
    5-5198
    452 S. W. 2d 842
    Opinion delivered April 20, 1970

      House, Holmes ir Jewell, for appellants.

      Botts ir Jenkins and George E. Pike, for appellees.
   Frank Holt, Justice.

This is a boundary line dispute which involves three contiguous tracts of land. The appellants constructed a fence along the south line of their property which adjoins appellee Whiting’s land. The appellants constructed another fence along the west line of their property which is adjacent to the lands of the appellee Hudson estate. The appellees filed separate suits alleging that the appellants’ fences were encroaching upon their property. The appellants counterclaimed in each case and asserted that the fences were constructed upon the true boundary lines between the three parties. The cases were consolidated for trial. The chancellor found for the appellees “to the extent of adopting the lines as shown by the Quertermous Survey.” This survey was relied upon by both the appellants and appellees. However, the court agreed with the appellees’ theory or version of this survey and found that appellants’ fence encroached 140 feet on the lands of the appellee Hudson estate and, further, that the appellants’ fence encroached upon appellee Whiting’s lands a distance that varied in width from 81 feet at one corner to 107 feet at the other corner of their adjoining lands. The total encorachment upon both tracts involves about five acres of unenclosed timber and swamp land.

On appeal the appellants contend for reversal that the decree is not supported by the evidence and is, in fact, contrary to the evidence. We do not agree.

It was stipulated, and the court found that: Except for 20 acres, appellee Whiting is the owner of the lands described as all of Spanish Grant No. 2346 (82.08 acres, more or less); appellee Hudson estate is the owner of the lands described as Spanish Grant No. 2355 (no acreage given); and that the appellants are the owners of their property which is described as fractional quarters (approximately 78 acres).

Appellee. Whiting acquired his land from the State in 1946 and the appellee Hudson estate lands were acquired in 1901. The appellants acquired ownership of their lands in 1962. In 1967 appellants retained a surveyor, Mr. Keefe, to survey their property in order to accurately locate and fix their true boundary lines. Following his survey appellants, several months later, constructed the fences that caused this controversy. Mr. Keefe testified that he fully and completely surveyed the appellants’ property and established all four corners of their sectionized tract and pin-pointed the location of their boundary lines. It was his testimony, corroborated by another surveyor who reviewed his work, that his survey “closed” within acceptable limits. The starting point of Mr. Keefe’s survey was the so-called “Crafton-Conners” corner, a section corner, and was “tied” to this point and also “tied” to other well established corners. The plat of his survey was made an exhibit to his testimony. According to Keefe, his survey conforms to the official U. S. Government Land Office Survey, as well as to a 1934 survey made by Mr. Quertermous, then the County Surveyor of Arkansas County. It appears that Keefe did not make a survey of either of the Spanish Grants. His survey was based upon appellants’ sectionized lands. The only field notes he used consisted of the Government Land Office plat. According to him, this plat reflects the same information as field notes with the exception of bearing or witness trees. He testified that he didn’t expect to find any 150-year-old bearing trees arid that he found no monuments upon the lands in question.

It appears that the crucial starting _point of the conflicting surveys made in this boundary line dispute revolves around where the southwest corner of appellants’ lands adjoin both of appellees’ lands. It is the appellees’ theory and version that an accurate survey depends upon the correct starting point or location of the southeast corner of Spanish Grant No. 2353 and that this corner is common to the southwest corner of appellants’ sectionized tract. Appellees’ surveyor, Mr. Strode, the local county surveyor since 1945, testified that he was familiar with the property having made surveys in this vicinity in 1945, 1954, I960, 1966, 1967, and the present survey in 1968. He testified that he was personally familiar with and found a witness tree and an iron pipe as representing the established corner from which he made his measurements. The 1934 Quertermous survey was introduced as an exhibit and relied upon by both the appellants and the appellees. According to Mr. Strode, the southeast corner of Spanish Grant No. 2353 is shown by the Quertermous survey as being a monument corner. This corner was marked by an iron pin as indicated on this survey. There were witnesses who testified to the effect that this corner was once marked by witness trees and that at the time of the trial the trees had been cut. Appellant Claude Rice testified that he cut certain witness trees upon the advice of his surveyor, Keefe, that they were not representative of the true boundary line. Strode testified that the southeast comer of Spanish Grant No. 2353 and the southwest corner of appellants’ tract are one and the same corner. Using this corner as a starting point, Strode, as he interpreted the Quertermous survey, went from monument to monument using official field notes in establishing appellants’ encroachment upon both appellees’ lands to the extent as found by the court. Strode did not survey the appellants’ property and Keefe, appellants’ surveyor, appears to have given no information on his plat or to the court about the correctness of the appellees’ Spanish Grants, Nos. 2346 and 2353, which adjoin appellants’ lands.

Numerous lay witnesses testified that the blazed line running north (between appellee Hudson estate and appellants’ lands) from the common corner established by Strode had been painted and was clearly marked and monümented and regarded by the appellees, timber cutters, and others since 1929 as being in conformity with the Strode survey. According to appellee Whiting and other lay witnesses, Whiting’s north line of Spanish Grant No. 2346 (appellants’ south line) had also been a well marked line for many years with, actual monuments along this line and it also conforms to the Strode survey. It was stipulated that the testimony of certain other witnesses would be cumulative with respect to the boundary lines as contended by the appellees. There was evidence that the appellant, Claude Rice, had stopped clearing his lands, digging ditches, and cutting timber at the blazed lines between his lands and both of appellees’ lands until he had his survey made in 1967 by Keefe.

The Court found, inter alia, in a memorandum opinion that:
“The defense contended that there was greater merit in the survey of a tract than there was of a survey of a line. The defendant made no attack upon the correctness of the Spanish Grant lines other than the conflict which resulted from the establishment of new lines of his own tract. The Spanish Grant lines were not surveyed by the defendants’ surveyor.
* * *
Monuments of the prior official surveys, either government or county surveys, were marked by witness trees and the location and direction of the witness trees from the exact corner was recorded in field notes by the surveyor and placed in the records of the county. The defendants’ surveyor did not resort to nor use the field notes but simply worked from a certain corner and surveyed a tract according to the deeds of acquisition of the defendant.
* * *
The court finds that Honorable T. J.' Strode, County Surveyor for Arkansas County, used the field notes and located the witness trees as well as blazed lines and monuments and tied his survey into those witness trees and monuments and the Quertermous Survey as shown by the plat introduced in evidence. [From the formal decree]
* * * The failure of Mr. Keefe to survey all the tracts involved tends to limit the effectiveness of his survey. Mr. Mehlburger says that because the survey closes it is much more apt to be accurate. That is true provided they start from the right corner and use the correct angles and go the right distances. But the mere closure of a survey without all of the other elements being completely accurate would not necessarily be proof that the survey was correct.
* * *
In the instant case T. A. Strode, County Surveyor, admitted to what he says is a small error. Likewise, Surveyor Keefe admitted to a mistake * * * .
* * *
In the instant case Rice did not present the surveyor from Monticello who had preceded Keefe.
Spanish Grants were established in the area in which these lands are situated before it was transferred to France and ultimately to the United States through the Louisiana Purchase. The establishment of sectionized method of measuring and identifying land was accomplished in the United States a considerable period of time after the acquisition of the Louisiana Purchase. The fact that our government did not change Spanish Grants but allowed them to remain as they had been laid out originally, is significant.
* * *
This court will therefore find for the plaintiffs to the extent of adopting the lines as shown by the Quertermous Survey. This will have the effect of depriving Plaintiff Whiting of about twenty feet along the north side of his Grant No. 2346 if one of his witnesses was correct in saying that Whiting had gone over the line. The ancient land markings are to be preserved no matter which party is affected. The southwest corner of the Rice land as marked by the witness tree should be reestablished and a permanent monument put in place, and the Quertermous Survey shall control.”

We cannot say that the chancellor’s findings are contrary to the preponderance of the evidence inasmuch as it appears that the location of the boundary lines was at most a fact question based upon two conflicting theories. Burkhart v. Watson, (247 Ark. 1970) 448 S. W. 2d 954. Certainly the chancellor had the right to consider the theory advanced by the appellees because in the location of land boundaries, where there are inconsistent theories, resort may be had first to natural objects or landmarks, next to artificial monuments, and then to adjacent boundaries and thereafter to courses and distances. 12 Am. Jur. 2d Boundaries §§ 65 and 67; also, § 55. See Clark on Surveying and Boundaries, 3d ed., § 293, where it is said:

“* * * An accurately established line-tree is a permanent monument of the first order and conclusively shows the true location of the line. Natural objects called for in a description may be located by parol testimony. After they have been so identified they become evidence of the exact location of the corner or line. That is what the surveyor desires. * * * Courses and distances yield to fixed monuments or natural and located objects. Courses and distances yield to a call for a natural object * * *. It is for that reason that the surveyor is required to search for natural objects, such as a bearing tree, a monument well planted in the soil for future reference.”
See, also, 3 A Ark. D-522, Boundaries, Key No. 3(3).

The appellants next assert that the trial court’s decree did not decide the case or settle the dispute between the parties. The decree orders that the boundary lines between the three parties “shall be fixed in accordance with the blazed line and monuments set forth in the Quertermous Survey, which survey and field notes were followed by the present County Surveyor, Honorable T. J. Strode, in making his survey, that the Southwest Corner of the Rice property in Frl. NWM of Section 35, Township 7 South, Range 3 West, Arkansas County, Arkansas, should be reset and replaced by the use of an iron axle or iron or concrete marker for a permanent marker and said Southwest Corner of said property shall be set and fixed in accordance with the Quertermous Survey.” We agree with the appellants that the court’s decree did not sufficiently “fix the boundary line with such certainty that it can be identified by reference to the decree.” McEntire v. Robinson, 243 Ark. 701, 421 S. W. 2d 877 (1967).

Therefore, the cause is remanded to the trial court with directions to fix and define the boundary lines, which establish appellants’ encroachment, with such certainty that the boundary lines can be identified by reference to the decree.

Affirmed and remanded.

Fogleman, J., concurs.