text:
    Whitener v. Whitener.
    5-1299
    304 S. W. 2d 260
    Opinion delivered June 24, 1957.

      Brockman & Brockman, for appellant.

      Lasley & Lovett, for appellee.
   J. Seaborn Holt, Associate Justice.

Troy L. Whitener died intestate September 14, 1954, and left surviving his widow, Vera Whitener, his mother, Jennie, and two brothers, Homer and Jewell. He left no children. Vera Whitener was appointed administratrix of his estate September 30, 1954, and has acted in that capacity since. On January 13, 1955, the administratrix filed her first inventory along with a preliminary accounting from October 1954 to December 1954.

On January 14, 1955 the appellants, Mrs. Jennie Whitener and Homer "Whitener, filed an intervention, alleging, in effect,' that appellee had not filed a complete and correct inventory, in that she had not included therein certain farming equipment of the value of $2,000 owned by her husband at the time of his death, and that she be required to include this machinery in her inventory. They further prayed that the court determine their rights in the estate, alleging that appellee had' waived her dower rights under the terms of a certain property settlement entered into between appellee and her husband September 13, 1951. On a hearing August 23, 1955, the trial court sustained appellants’ exceptions to the inventory as to the farm implements (of the undisputed value of $2,000) and ordered that they be included in the inventory and administered along with the other assets of the estate.

On September 18, 1955, appellee, within less than one month after the court had held that she had no title to the farm implements, filed her claim against the estate for $2,000 as an absolute obligation of the estate. Thereafter (November 30,1956) the court allowed appellee this $2,000 claim holding that it fell within the class of contingent claims, was filed within the time allowed by statute, and the accounting filed by appellee was approved. The court further found, in effect, that all the property of the estate was a new acquisition; that one-half of the personal property was sufficient to pay all debts, except a certain mortgage indebtedness secured by real estate; that appellee (as the widow), under § 61-206 Ark. Stats, of 1947, was entitled as her dower to one-half of the real estate in fee, to one-half of the personal property as against collateral heirs; and should more than one-half of the estate be required to pay the debts the widow should have the remainder. The judgment further recited that the widow’s one-half in the real estate should be subject to one-half of the mortgage indebtedness thereon.

The case comes to us on appeal and cross-appeal. For reversal appellants rely upon these points: “1. The claim of Vera Whitener, filed on September 18,1955, is not a contingent claim, and therefore is barred by § 62-2601 (A) of Ark. Stats. 1947. 2. Vera Whitener elected to maintain title to the farming implements as her individual property, and therefore, failed to file a claim against the estate as required by § 62-2601 (A) of Ark. Stats. 1947. 3. The Property Settlement Agreement dated September 13, 1951 bars Vera Whitener from any claim for dower in the Estate of Troy L. Whitener. 4. If the Court holds that the property settlement agreement does not bar Vera Whitener from claiming dower, then she is entitled to a one-third interest only as her dower, free from debts and expenses.”

Appellee on cross-appeal contends that the trial court erred in holding that the widow’s part of one-half of the real estate was subject to oile-half of the mortgage indebtedness thereon.

Material facts appear not to be in dispute.

1.

Appellants’ first contention that the $2,000 claim filed by appellee on September 18, 1955, is not a contingent claim and, therefore, barred under § 62-2601 (A) Ark. Stats. 1947, cannot be sustained. We think the record clearly shows that it was contingent. In July 1951 it appears that Vera and her husband separated and Vera sued for divorce. On September 13, 1951, while this suit was pending, the parties entered into a property settlement and on September 21, 1951, by agreement, the divorce action was dismissed with prejudice. Thereafter, in December 1951, the parties resumed their marital relations and lived together until the husband’s death, September 14, 1954. It further appears that, on November 29, 1952, Vera and her husband adjusted and settled certain financial accounts between them. He was at the time indebted to Vera in the amount of $7,910.88, consisting of two notes, one for $4,100 and the rent note for $3,000, along with other smaller amounts making up the total. This indebtedness is not disputed and was paid by the husband conveying to his wife a tract of land for a consideration of $4,900 and certain farm implements of the value of $2,000, which amount his wife credited him on his indebtedness to her. The balance of the indebtedness was paid in cash. In these circumstances Vera, claiming and believing that she was the owner of the farm implements, did not include them in the inventory as assets of the estate.

She successfully contended in the trial court that she had no enforceable claim against the estate for this $2,000 item (farm machinery) until the court, on August 23, 1955, held that this machinery did not belong to her, as she believed, but should have been included in the inventory as assets of the estate. Appellants, on the other hand, contended that her claim for $2,000 became absolute when they filed exceptions to her inventory and since she did not file her claim within six months of the filing of their exceptions, it was barred by the statute of non-claims. We do not agree with appellants’ contention. As indicated, we think the trial court properly held that this claim, in the circumstances, was clearly a contingent claim and was filed by Vera within the time permitted after it became absolute, and was, therefore, not barred. Under § 62-2610 Ark. Stats. 1947, a contingent claim which becomes absolute six months or more prior to the order of final distribution must be presented within six months after becoming absolute, as was done here.

As indicated, we think, that following the filing by appellants of exceptions to Vera’s inventory, whether there would ever be a valid claim against the estate by Vera for the $2,000 clearly depended upon an uncertain future event, that is, the decision of the Probate Court on appellee’s right to this $2,000. We have defined a contingent claim in this language: “According to the ordinary acceptance of the term, a contingent claim is one where the liability depends upon some future event which may or may not happen, and which therefore, makes it wholly uncertain whether there ever will be a liability,” Turner v. Meek Excr., 225 Ark. 744, 284 S. W. 2d 848.

2.

On appellants’ second point, what we have said above on the first contention applies with equal force. As indicated, until the Probate Court determined that Vera was not entitled to the consideration of $2,000 she had allowed her husband on his indebtedness to her, and until she had been directed by court order to include this amount in her inventory as assets of the estate, she had no claim against the estate. We think she has pursued the only remedy left open to her in the circumstances.

3 and 4.

We consider appellants’ third and fourth contentions together since they appear to be interrelated. We do not agree that the property settlement of September 13, 1951, barred the widow (appellee) of her dower rights.

The trial court held that the settlement agreement “does not under the evidence in the case bar the dower rights of the widow, Yera Whitener, in the estate of the deceased husband,” and we think the court was correct in so holding. The only way a wife could relinquish her dowér interest in her husband’s property is by valid deed. § 50-416 Ark. Stats. 1947 provides: “A married woman may relinquish her dower in any of the real estate of her husband by joining with him in the deed of conveyance thereof, or by a separate instrument executed to her husband’s grantee or anyone claiming title under him and acknowledging the same in the manner hereinafter prescribed.” The property settlement agreement here, however, was not sufficient to convey her dower rights in the real property under the above statute. Such was the effect of our very recent holding in Marshall v. Marshall, 227 Ark. 582, 300 S. W. 2d 933. Also see Bowers v. Hutchinson, 67 Ark. 15, 53 S. W. 399. In the latter case (Bowers v. Hutchinson) a similar question was involved as here, there the wife for a consideration entered into a settlement agreement (denominated “A Deed of Separation or Articles of Agreement”) whereby she would not at any time in the future make any claim because of interest in the real estate owned or that might thereafter be acquired by her husband: “. . . intending to relinquish, release, remise and forever quitclaim unto said first party (her husband), his heirs and assigns ... all claims, interest, right, demand or possibility of dower that might or could hereinafter be allotted and assigned to her by virtue of her said intermarriage with said first party.” There, as here, this agreement was set up as a bar to the widow’s claim of dower. We there said: “The deed (of separation or articles of agreement) which constituted the defense in this action was without effect as a relinquishment of dower in real estate . . . Under these (our) statutes, this Court has repeatedly held that ‘a married woman can relinquish dower only by joining with her husband in a deed of conveyance to a third person.’ ” In subsequent decisions we have uniformly adhered to this principle. In Roetzel v. Beal, 196 Ark. 5, 116 S. W. 2d 591, our holding in the Bowers case supra was reaffirmed. We, therefore, conclude that appellee’s attempt to convey her dower in the settlement agreement ivas not effective to convey her dower rights.

Finally, appellants’ contention that the court erred in holding that the widow ivas entitled to one-half the personal property is, we think, untenable in the circumstances. The trial court held: “That under the applicable statute, § 61-206 of the 1947 Statutes of Arkansas, the widow of Troy L. Whitener is endowed in fee simple of one-half of the real estate and one-half of the personal property absolutely and in her own right. This statute means that the widow is entitled to one-half as against collateral heirs, even though it takes all the remainder to pay the debts, and if more than one-half of the estate is required to pay the debts, the widow is, as against collateral heirs, entitled to the remainder. . . (and) that the widow’s one-half interest in this real estate shall be subject to one-half of the mortgage indebtedness thereon; . . .”

The inventory shows the personal property to be of the value of $9,768.89 and with the amount of $2,000 (farm equipment), ivhich the court directed should be added to the inventory, makes the gross amount of the personal estate $11,768.89. Since it appears that a part of this gross estate consisted of the value of a crop without any deductions for the cost of harvesting and preserving it, admitted to be $1,586.90, this amount should be deducted, leaving a total personal property value of $10,-181.99. It further appears that the indebtedness due and owing by Mr. Whitener at the time of his death, excluding the secured indebtedness, but including Vera Whitener’s claim of $2,000 allowed by the trial court, plus the expenses of administration, amount to a total of $2,-934.14. Thus, since the total of the personal property amounted to $10,181.99, one-half of this amount ($5,-090.99) was substantially more than the unsecured indebtedness and expenses of administration. The evidence shows that in making the above calculations the appellee used the inventory and accountings of the administratrix, all of which were approved by the court, and to which it appears no exceptions were filed. We, therefore, conclude that the chancellor’s findings, that one-half the personal property was sufficient to pay the unsecured indebtedness of the estate and that the widow was entitled to one-half the personal property as her dower as against collateral heirs, were correct. We, therefore, affirm on appellants’ direct appeal.

On cross-appeal, appellee earnestly contends that the trial court erred “in holding that the widow takes an undivided one-half interest in the real estate subject to the mortgage indebtedness thereon.” We do not agree.

In the above contention appellee relies largely on § 62-2701 Ark. Stats. 1947 (Act 140 of 1949). This identical question was answered contrary to appellee’s contention in the very recent case of Cranna, Adm. v. Long, 225 Ark. 153, 279 S. W. 2d 828. There, after construing the effect of statutes prior to Act 140 (§ 66, Pope’s Digest, and § 62-2401 Ark. Stats. 1947) and § 62-2701, (§ 124, Act 140 of 1949 above) we there said: “Sec. 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of our cases, as above cited.” We reaffirm the above holding. Before real estate may be resorted to for the payment of debts of the estate the personal property must first be resorted to.

Accordingly,' we affirm on both direct and cross-appeal.

Mr. Justice George Rose Smith concurs.

Harris, C. J., disqualified and not participating.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Brimson v. Brimson.
    5-1280
    304 S. W. 2d 935
    Opinion delivered June 24, 1957.
    [Rehearing denied Sept. 30, 1957]

      Robert W. Griffith and Fred A. Newth, for appellant.

      Martin, Dodds <& Kidd, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal presents the questions of (a) which spouse is entitled to a decree of divorce, and (b) what property and allowances should the wife receive.

The parties (Dr. and Mrs. Brimson) were married in 1934 and lived together for many years. In August, 1956, Mrs. Brimson filed suit for divorce on the ground of indignities (Fifth ground in § 34-1202 Ark. Stats.) She also sought property rights and alimony (% 34-1214 Ark. Stats.). Dr. Brimson denied her charges of indignities; cross-complained for divorce on the three-year separation statute (Seventh, ground in § 34-1202 Ark. Stats.): claimed that he was the injured party; and that Mrs. Brimson was entitled to neither dower nor alimony. After hearing the witnesses, the Chancery Court entered a decree finding: (a) that Mrs. Brimson was not entitled to a divorce; (b) that Dr. Brimson was entitled to a divorce on the grounds of three years separation; (c) that Dr. Brimson was the injured party; (d) that Mrs. Brimson was not entitled to any dower or alimony; and (e) that Mrs. Brimson should receive only $100 attorney’s fee and $10 court costs. The decree also affected property held by the parties in estate by entirety. From that decree Mrs. Brimson prosecutes this appeal; and we shall dispose of the issues under the hereinafter stated topic headings.

I. Which Spouse Is Entitled to a Divorce¶ Appellee says (a) that the Chancery Court granted Dr. Brimson a divorce under the three-year separation statute ; (b) that appellant has not listed as one of her points on appeal any assignment that the Court was in error in such regard; and (c) that this Court, therefore, cannot review the decree granting Dr. Brimson a divorce. "We do not agree with appellee’s said contentions. Appellant’s first point is: “The clear preponderance of the evidence entitled her to a divorce on the ground of indignities”. We agree with appellant on her first point and hold that the Chancery Court should have awarded her a divorce.

The evidence shows that the parties were married in 1934; that after their marriage they lived in the back end of the Brimson Drug Store for about ten years; that later she moved into an upstairs apartment which he had furnished for her; that he continued living in the back of the drug store throughout their married life; that she worked in the drug store seven days a week during the 22 years duration of their marriage; that she did all of the cleaning of the drug store, the mopping of the floors, the keeping of the stock, the ordering, and the waiting on customers.

The evidence — amply corroborated as to specific instances — also shows that Dr. Brimson repeatedly abused and cursed his wife; that he cursed her in front of customers; that when she went down in the drug store in the morning, if she made any noise he would curse her; that if customers came in during such time he would yell at them to shut up and go home; that on at least three occasions he struck her; that he falsely accused her of unfaithfulness; and that such mistreatment of her by him went on consistently over the years and adversely affected her health.

We hold that Mrs. Brimson was entitled to a divorce on the ground of indignities; and such holding necessarily nullifies the Chancery Court decree awarding Dr. Brimson a divorce on the three-year separation statute. But, even so, we think it not amiss to point out that until five months before the filing of this suit, the parties continued to work together in the drug store; that she had an apartment in a nearby building, to which he had a key; and that he used her bathroom regularly. In other words, to all outward appearances, they were living together. How — under such circumstances — could it be held that these parties lived “separate and apart from each other for three consecutive years,” within the purview of our statute ? Whether they had cohabitation is a disputed point; but, under the admitted facts, they certainly did not live “separate and apart from each other”. So we reverse the decree awarding Dr. Brimson a divorce and award Mrs. Brimson a divorce on the ground of indignities.

II. Property Rights. The Chancery Court held that Dr. Brimson was the “injured party” under § 34-1202 Ark. Stats., as amended; and for that reason deprived Mrs. Brimson of all dower and allowances. Having found, as we have, that Mrs. Brimson is entitled to a divorce on the ground of indignities, it necessarily follows that she is the “injured party” and is entitled to dower and certain allowances, as hereinafter discussed.

(a) By the authority of § 34-1214 Ark. Stats, we award Mrs. Brimson one-third, absolutely, of all of the personal property of Dr. Brimson; and this includes, among other items, the merchandise and fixtures in the drug store, the cash on hand, and one-third of all other items of personal property.

(b) By authority of § 34-1214 Ark. Stats, we award Mrs. Brimson a life estate in one-third of all the real estate, the title to which is in Dr. Brimson only; and necessarily this carries with it one-third of the net rents and revenues from the said property for and during her natural life.

(c) There are several parcels of real estate owned by entirety by Dr. Brimson and Mrs. Brimson, and acquired subsequent to the effective date of Act No. 340 of 1947 (see § 34-1215 Ark. Stats.). Such real estate — with the exception of the 5-acre tract hereinafter to be discussed — may be sold on order of the Court, on motion of either party, and the net proceeds divided equally.

(d) The 5-acre Tract. The parties acquired an 80-acre parcel of land prior to the effective date of said Act No. 340 of 1947; so the 80-acre tract could not. be sold except by mutual consent. But the parties acquired by entirety a 5-acre parcel of land after the effective date of Act No. 340 of 1947; and this 5-acre parcel was ordered sold and the proceeds divided. The evidence shows that the 5-acre parcel lies between the 80-acre parcel and the highway; that the 5-acre parcel is a means of entrance to the 80-acre parcel; and the sale of the 5-acre parcel would materially and adversely affect the sale of the 80-acre parcel. Under such circumstances, we hold that the 5-acre parcel and the 80-acre parcel should be handled together; and the 5-acre parcel should not be sold — absent mutual consent • — • until the 80-acre parcel is likewise sold.

(e) There are several parcels of real estate which are owned by the entirety and which were acquired prior to the effective date of Act No. 340 of 1947; and, under our holding in Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, such parcels cannot be sold or partitioned — so as to pass a good and clear title — during joint lifetime of the parties, unless both consent thereto. In the decree from which comes this appeal, the Trial Court gave Dr. Brimson the exclusive custody, control and management of these parcels, with right to rent and lease them, collect the rents, and then divide the net proceeds. Dr. Brimson was shown to be a man who never kept any books of accounts. He concealed his money in secret hiding places and rarely, if ever, used a bank. Under such conditions it would be almost impossible for Mrs. Brimson, or any other person, to know whether she was receiving her just portion of the net proceeds. Therefore, on remand, if the parties cannot agree on a mutual third person to handle these parcels, or cannot mutually agree to a sale, then the Chancery Court should appoint some suitable person or rental agency as receiver.

(f) Rents Since Filing Of S-uit. Mrs. Brimson filed this suit on August 8, 1956, and she is entitled to her net portion of all of the rents received from all the entirety properties since that date. The Trial Court refused her this relief; but on remand Dr. Brimson should be required to account for all such items and to pay Mrs. Brimson her portion.

III. Alimony, Attorney’s Fees, And Court Costs. Having made the property awards herein, we hold that these awards are sufficient and that Mrs. Brimson is not entitled to alimony (§ 34-1211 Ark. Stats.); but we hold that she is entitled to a total of $500 attorney’s fees, and is also entitled to recover all costs of all courts to the present time, with future costs to be determined as such costs may arise.

CONCLUSION

The decree is reversed and the cause is remanded, with directions to enter a decree in accordance with this opinion, and for further proceedings not inconsistent herewith.

       These sections were re-enacted by Acts numbered 161 and 348 of 1953.

       These sections were re-enacted by Acts numbered 161 and 348 of 1953.


author: George Bose Smith, J.

text:
    Burnett v. Agent.
    5-1322
    303 S. W. 2d 575
    Opinion delivered June 24, 1957.

      Dobbs, Pryor & Dobbs, for appellant.

      Hugh M. Bland, for appellee.
   George Bose Smith, J.

This is an action brought by the appellant, Joe Burnett, under the statute permitting contribution among joint tortfeasors. Ark. Stats. 1947, § 34-1002. Service of process upon the appellee, Jane Agent, was obtained by serving a summons on the Secretary of State under the act relating to nonresident motorists. Ark. Stats., § 27-342.1. The trial court sustained the appellee’s motion to quash the service, on the ground that the act providing for substituted service on nonresident motorists does not apply to a suit of this kind.

Burnett and Miss Agent were involved in an automobile accident in Fort Smith last year. Miss Agent, a resident of Oklahoma, was driving a car belonging to her father, Watie Agent. In litigation in the federal court Watie Agent obtained a judgment for $1,200 for the damage to his car, with the jury fixing Burnett’s negligence at 80 per cent and Jane Agent’s negligence at 20 per cent. Burnett paid the judgment and brought this action to enforce his claim for contribution in the amount of $240.

The statute provides that a nonresident who drives a motor vehicle on the highways of this state is deemed to have appointed the Secretary of State as his agent for service “in any action or proceedings against him . . . growing ont of any accident or collision” in which the nonresident may be involved while operating a motor vehicle on onr highways. Ark. Stats., § 27-342.1. The other statutory conditions being present, the only question is whether this action grows out of the accident.

We have no doubt that it does, and the point has invariably been so decided elsewhere. Dart Transit Co. v. Wiggins, 1 Ill. App. 2d 126, 117 N. E. 2d 314; Southeastern Greyhound Lines v. Myers, 288 Ky. 337, 156 S. W. 2d 161, 138 A. L. R. 1461; McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S. E. 2d 121. We are not convinced by the appellee’s argument that this action grows instead out of the proceedings in the federal court. A jury verdict cannot be regarded as creating a liability where none existed before. It is merely a step in the procedure by which an unliquidated tort liability is reduced to a fixed sum. The intervention of the federal court case does not break the direct connection between the appellee ’s liability, which arose at the time of the collision, and the present suit for contribution.

Reversed.


author: Carleton Harris, Chief Justice.

text:
    Stegall v. Rumph.
    5-1255
    303. S. W. 2d 571
    Opinion delivered July 1, 1957.

      S. Hubert Mayes, Shackleford, & Shackleford, by J. M. Shackleford, Jr., for appellant.

      L. B. Smead and Mahony é Yocum, for appellee.
   Carleton Harris, Chief Justice.

Mrs. Bessie Ste-gall, 62 years of age, was a passenger in an automobile with several members of her family, on the night of January 18, 1955, when said automobile was involved in a head-on collision with another car, driven by one Raymond Dennis, on the Magnolia highway, a few miles from the city limits of El Dorado, Arkansas. An ambulance was dispatched from the Rumph Mortuary to the scene of the collision to carry the injured persons to the hospital. The ambulance (a 1952 Cadillac) was driven by Clarence Biggers, an employee of the mortuary, who was accompanied by Clarence Strother, another employee. At the scene of the collision, Mrs. Stegall, her grandson, and her daughter, were transferred from their automobile to the ambulance. Mrs. Stegall was placed on a stationary cot located on the right side of the rear compartment ; her grandson was placed on a cot on the left side of the compartment; and the daughter took a seat on the floor immediately back of the driver’s seat. Strother assumed a standing position in the aisle between the cots. Biggers left the scene intending to go to the Warner Brown Hospital in El Dorado. At the intersection of West Avenue and Main Street, the ambulance collided with an automobile being driven by appellee, Lucille (Mrs. W. E.) Hickman, which was traveling east on Main. Mrs. Stegall was transferred to another ambulance and taken on to the hospital where she remained for eighty-eight days. During this period, her left breast was removed, and she received treatment for fractures to both legs, fractured ribs, broken nose, and other injuries of a less serious nature.

On March 10,1956, Mrs. Stegall and her husband instituted this action against appellees, jointly and severally, seeking damages for injuries alleged to have been received in said ambulance collision. The complaint alleged that both appellees were guilty of negligence. Appellee, Rumph Mortuary, answered, denying negligence and denying that appellant, Mrs. Stegall, was injured. Appellee, Lucille Hickman, answered, denying any negligence on her part, alleging negligence on the part of the ambulance driver, and by amendment to her answer, alleged that whatever injuries Mrs. Stegall received were suffered in the previous collision with Dennis. On trial of the case, a jury verdict was returned in favor of the Rumph Mortuary and Lucille Hickman. From such verdict, appellants bring this appeal, contending the verdict is contrary to both the law and the evidence, and asking that said cause be remanded for a new trial.

The verdict was general; accordingly, there is no way to determine whether the verdict was based on a finding of no negligence on the part of the appellees, or whether it was based on the finding that Mrs. Stegall did not establish that she was injured in this collision (or both).

Appellees first contend that Mrs. Stegall was not injured in the second accident. No point would be served in detailing the testimony relating to the alleged injuries received, though some of the same injuries appear to have been also alleged in the suit against Dennis. Mrs. Stegall testified that the impact knocked her down between the two cots on her left side . . . her legs were still on the bed . . . that Strother fell on the cot across them . . . she felt pain in her ankles . . . she felt pain in her left side . . . her left breast struck the wheel of the cot upon which the grandson was lying. Biggers testified that after the collision, Mrs. Stegall’s body, from the waist up, was still on the cot, that her hips were off, and her feet on the floor between the cots. Strother testified likewise, and further testified that he was not thrown upon Mrs. Ste-gall’s body. Two physicians, in answer to a hypothetical question embodying appellants’ theory of the case, (as to the manner in which Mrs. Stegall’s injuries were sustained) testified that the leg fractures could have been received in the second collision, and one testified that the breast could have been injured by striking the wheel of the cot, but neither would testify that said injuries did occur at the time of the second collision. Two other physicians, in answer to hypothetical questions embodying appellees’ theory, testified, that, in their opinion, the leg injuries were sustained in the first collision, and one testified that he thought the rib injuries occurred in the first. While the physicians fairly well agreed that the breast cancer would not have been caused by the injury complained of, and that Mrs. Stegall was afflicted with this malignancy before either of the collisions, they were in disagreement as to whether or not an injury would aggravate this condition or hasten the necessity of the removal of the breast.

Rev. Cecil Owen, a minister, testified that he was the first person to arrive at the scene of the Dennis collision, that the car in which Mrs. Stegall was riding “was a total loss,” and that Mrs. Stegall was in the front “between the dashboard and the seat, and just crumpled down there on the floor board. ’ ’ In manner to the question as to the position of her feet and legs below the knees, he replied:

“Well, they was under her; I don’t know just how they were folded. * * * She was wedged against the seat with her back against the seat and her chest was against the dashboard, and the rest of her weight down on the floorboard with her feet and legs down under her. ’ ’

Quoting further from the testimony:

“Q. In that position, state how much space between the dashboard and seat she occupied.

A. I don’t . . . she might . . . she bent the dashboard in as the impact happened. And she had the whole space full up.”

Further quoting:

“Q. How did you take her in the ambulance?

A. She went in by her main body, her head went first.

Q. In which door?

A. Well, there is a door up on the right side.

Q. Are you sure she wasn’t put in the back end of that ambulance?

A. No, sir; she went in this front side.

Q. And how many men were carrying her?

A. Three.

Q. Why didn’t you let her walk?

A. Well, I don’t think she was able to walk.

Q. Why don’t you think she was able to walk?

A. Well, she didn’t seem to have any use of her legs, in the first place. That’s the main reason.

Q. Was she complaining?

A. Well, yes, sir, she complained of her chest, she complained of her legs, and also the cut or gash, whichever it was, about her nose there.”

Certainly there was substantial evidence that Mrs. Stegall’s injuries Avere sustained at the time of the first collision, and this may Avell have been the reason for the jury’s returning a verdict for appellees. The jury was properly instructed as to the law relative to determining whether Mrs. Stegall was injured in the second collision, and it is not contended otherwise by appellants ;■ in fact, it is not argued that any of the instructions given in the case were erroneous. This court, of course, will not disturb the A^erdict of a jury if there is any substantial evidence to support same. Humphries v. Kendall, 195 Ark. 45, 111 S. W. 2d 492.

We come now to consider the question as to whether appellees were guilty of negligence. Here, too, if there be substantial evidence to support the finding of the jury, the verdict, will not be disturbed. The evidence showed that a drizzling rain was falling, and that the weather was somewhat windy and foggy on the night in question. On entering the city limits, the ambulance was traveling on Hillsboro, and continued on that street until reaching "West Avenue. West Avenue is the main street going from the city, and is well congested with traffic. The ambulance turned north on West Avenue and proceeded down the street. Biggers testified that he went through three street intersections with the traffic light showing green, and that as he went through the third (at Cedar Street) he observed that the light at the intersection of West Avenue and Main (1 block away) had changed to amber. He proceeded on and entered the intersection, but was unable to say as to whether the light was still amber or had turned to red at the time he entered. According to his evidence, the intersection of West Avenue and Main is a £<blind” corner because the telephone building is located on the edge of the street. Consequently, traffic approaching from the left could not be observed, and he did not see Mrs. Hickman until he had entered the intersection. He testified that at the time, he was driving at a speed of 25 to 30 miles per hour, was sounding his siren, and flashing the emergency lights. Appellee, Mrs. Hickman, testified that when she entered the intersection, the traffic light was green, and she was in second gear. She further testified that she did not hear the siren, nor did she ever see the ambulance. Under the law, the ambulance being an emergency vehicle, it was the statutory duty of Mrs. Hickman to stop her car and remain stationary until the ambulance had passed, provided the ambulance driver was signaling his approach by siren. We conclude that there was plainly a jury question as to whether the collision was caused by the negligence of Biggers or of Mrs. Hickman — of both — or of neither. All of these issues were properly submitted to the jury by the court.

On March 11, 1957, this court entered an order, in compliance with motion of appellees, to require appellants to pay costs of furnishing additional portions of the record. This amounted to $100. After a study of the complete record, we conclude that this particular cost item should not be borne by appellants. Appellees are accordingly directed to repay said amount to appellants.

With such modification, the cause is affirmed, with costs adjudged against appellants.

       Mrs. Stegall and her husband broúght suit against Dennis in the Union Circuit Court for damages suffered on account of injuries to Mrs. Stegall in this collision. The suit was settled on December 6, 1955, for $6.750.00.

       Because of a malignant tumor.

       Ark. Stats. (1947) Anno., Vol. 6, Sec. 75-625.


text:
    Douglas v. Douglas.
    5-1313
    304 S. W. 2d 947
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      B. Ball, for appellant.

      Paul K. Roberts, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from the order of the Chancery Court of Bradley County, entered on January 8, 1957, in setting aside a divorce decree which had been rendered on August 30, 1954. In setting aside said decree, the court held same to be void for the reason that no regular, adjourned, or special term of the court was set for August 30th, nor such time set by rule or order of the court for the transaction of business, and appellee had not been given notice of the August 30th date. In other words, the court held that the decree of August 30, 1954, was rendered in vacation and without notice.

The record reflects that appellant filed a suit for divorce against appellee on July 2, 1954, and appellee was duly served with summons. On July 13, a' restraining order was issued restraining appellee from “molesting” appellant in the use of certain property described in the pleadings, and this order was served upon appellee. Thereafter, on July 30, no answer or other pleading having been filed, the court heard the testimony of appellant and her witnesses, and a docket notation was made as follows:

“* * * the‘cause was submitted upon complaint, other pleadings and exhibits and the testimony of witnesses listed on margin (plaintiff, Mrs. W. M. Jackson, Mrs. Johnson, W. C. Kind). Decree of divorce granted to plaintiff, custody of child granted plaintiff, $30.00 per month child support granted. Resulting trust declared in land and other property in favor of plaintiff. Restraining order made permanent as per precedent. ’ # * * J J

No precedent was signed by the Chancellor, and on August 30, 1954, the Chancellor endorsed upon the chancery docket the following:

“Upon motion of plaintiff, the judgment rendered herein on 7/30/54, having inadvertently been rendered prior to the proper elapse of time, is set aside, and being now re-heard upon the pleadings and testimony, the defendant, having had prior notice of this action and still failing to appear and plead herein, the plaintiff is granted the custody of the child, a divorce from the defendant and the prayer for constructive trust is granted in and to the real and personal property of the parties and the temporary restraining order is made permanent, as per precedent.”

A precedent was signed incorporating all of such findings except that portion relating to setting aside the judgment of July 30th. The then in office Chancellor testified in the present case that the fact the matter had been heard before the expiration of 30 days had been called to his attention, which was the reason for nullifying the previous notation.

Appellee, under the law, had 20 days in which to file an answer, or other pleading, after being served with summons. As of August 30th, a date far beyond the period in which the answer should have been filed, he still had filed no pleading, nor requested additional time to do so. This was true, though he knew the cause was pending, had already been served with a summons, had been served with a restraining order, and had further been advised, according to the testimony, by the Chancellor, that if he had any defense and wanted to assert it, an attorney should be consulted. Apparently, from the record, two attorneys were consulted, but no answer was filed.

Appellee argues that he had until noon of October 25th (first day of the new term) to file his answer. This would be true if the court had not been in session for business in Bradley County from the time of the filing of the complaint until October 25th, or if the 20 days time for filing answer had not expired before August 30th, but this contention is without merit under the facts in the cause before us. Subsequent to August 30th, through various attorneys, appellee filed one motion and four suits to set aside this decree, the last one, filed on September 5, 1956, occasioning the instant litigation. In stating his grounds in the suits to set aside the decree, appellee never alleged he was under the impression that he had until the first day of the next term to file an answer; to the contrary, he alleged that he had been lulled into a false sense of security by appellant; that appellant told him, after filing her suit, that she was not “going any further” with it, and that she sent their daughter to him to convey the same information. In the motion, (first pleading filed) he alleged, as his reason for not filing answer, that he had been financially unable to employ an attorney. In other words, appellee was not depending upon the provisions of Section 27-1135, 5but was depending entirely upon other grounds. Further, there was no sufficient showing of unavoidable casualty, or that appellant had made the statements to appellee upon which he allegedly relied.

As stated in the opening paragraph, the order of the court in setting aside its decree of August 30th was based upon the finding that the decree was rendered at a time when the court ivas not legally in session, that is, the decree was rendered in “vacation,” and the same was therefore void. We do not agree with this conclusion. Section 22-408.1, Vol. 3, Ark. Stats. (1947) Anno., provides as follows:

“* * * There shall be no adjournments of Courts of Chancery, but such courts shall be deemed in recess while not engaged in the transaction of business. * * *”

Section 22-408.2 further provides:

“At any time while mentally and physically competent, and physically present in the geographical area of the Chancery Circuit which he serves as Chancellor, the Judge of a Chancery Court may hear, adjudicate, or render any appropriate order with respect to, any cause or matter pending in any Chancery Court over which he presides, subject to such notice of the time, place and nature of the hearing being given, as may be required by law or by rule or order of the court, provided that no contested case can be tried outside the county of the venue of said case , except upon the agreement of the parties interested. ”

The court was not in recess for it was engaged in the transaction of business. The hearing of the evidence and the signing of the decree on August 30m were normal transactions of a court in session. Appellee argues that regular or adjourned sessions of court were held in other counties of the district, between the Bradley County May and October terms, and this necessitated another order opening court in Bradley County each time the court returned to that county for the transaction of business. As authority for such argument, he cites a case decided many years before the passage of Act 6 of 1951 (Section 22-408.1 and 22-408.2). The argument is entirely contrary to the statute just mentioned, and is therefore without merit.

There is no showing in the record that the court had established any rules or regulations at that time-(relative to the place and particular time for hearing evidence and rendering decisions) that were violated by hearing the cause on August 30th, or which caused appellee to be misled. Appellee was not due to receive notice, for he was in default. The court was not required to notify appellee, for he had forfeited the right to such notice by his failure to file an answer or otherwise plead. To the contrary, when appellee was served with a summons, he was given legal notice of the pending litigation, and was required to take steps to preserve his rights.

This was not a contested case, nor was it a cáse from another county in the district. The learned Chancellor apparently relied in large measure upon the case of Howell v. Van Houten, 227 Ark. 84, 296 S. W. 2d 428, but the facts in that case were far different from those with which we are presently concerned. There, an unlawful detainer action was brought in the Circuit Court of Prairie County, in which county were situated the lands said to be unlawfully detained. The Circuit Judge entered judgment against Howell Avhile in chambers in Lonoke, Lonoke County. In the present cause, the suit was filed in Bradley County, the evidence was heard in Bradley County, and the decree was ren dered in Bradley County. We accordingly conclude that the court had full authority to render said decree.

Summarizing, it appears that though appellee knew about the pendency of the action, no steps were taken to defend same. Nearly two months elapsed after the rendition of the August 30th decree before any pleading was filed. Such pleading was the motion to set aside the decree, and was filed on October 23, 1954, and amended on January 29,1955. No action was ever taken on this motion. A complaint was filed on February 12, 1955, seeking to set aside the decree. Appellee took a non-suit on April 15, 1955. Following such action, appellant remarried. A second suit was filed by appellee on April 16,1955; non-suit was taken in September, 1955. A third suit was filed on December 3, 1955, and dismissed by the court on motion of appellant for want of prosecution. The instant action was commenced on September 5, 1956. It cannot be said that appellee has exercised diligence in asserting any alleged rights, and, in fact, it appears that his interest in instituting the various suits was largely influenced by the- fact that appellant had instituted action in the Bradley Circuit Court to enforce certain property rights granted in the divorce decree.

For the reasons herein set out, we hold that the court erred in setting aside the divorce decree rendered August 30th. The cause is accordingly reversed and remanded with directions to reinstate said decree.

       The supplemental pleading seeking this relief and the order of the court granting same were lost from the files, and a carbon copy was substituted by stipulation of the parties.

       See Act 47 of 1953.

       Both appellee and the daughter vigorously denied this assertion in their testimony. The parties hereto did not again live together after appellant filed her suit.

       Later superseded by Act 49 of 1955, which, in turn, has been supérseded by Act 53 of 1957. See also Act 70 of 1957.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Fitzgerald v. Fitzgerald.
    5-1321
    303 S. W. 2d 577
    Opinion delivered July 1, 1957.

      R. H. Peace, for appellant.

      H. L. Wilkinson, Pat Robinson and Patsy Robinson, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, John Fitzgerald and appellee, Syble Fitzgerald, were married August 19, 1928. Oh April 16, 1955, appellee sued for divorce on the ground of personal indignities. She asked for the care aud custody of a minor child, Mary Elizabeth, 9 years of' age, and an allowance for her support. She further prayed for possession and the use of homestead property consisting of 75.61 acres, for certain personal property and for costs and attorney’^ fee; Appellant answered with a general denial and in a cross-complaint asked for a divorce on the grounds of indignities and desertion.

Trial was had on October 25, 1955, and at the close of all the testimony the court took the case under advisement and thereafter, on September 10, 1956, rendered a decree dismissing appellant’s cross-complaint for want of equity, and granting a divorce to appellee awarding her the care and custody of the little girl, with reasonable visitation rights to appellant. Appellee was also given possession and use of the homestead property along with all personal property connected with the homestead, the household furniture, their joint savings account in the amount of $250 and one-half of the cash maturity value of certain U. S. Government Bonds in the amount of $800. The decree further directed that appellant pay to appellee, for support of the minor child, $50 per month beginning January 1, 1956, and that appellant’s one-half of the bonds, in the amount of $400, be applied on these nine back installments which amounted to a total of $450. Appellant was further required to pay all court costs including $150 to appellee’s attorney.

For reversal appellant first contends that appellee’s proof was not sufficient to support her ground for divorce and that her testimony lacked corroboration. We do not agree to either contention. After review of all the evidence, which we do not attempt to detail here, we cannot say that the findings of the chancellor were against the preponderance thereof. Appellee testified, in effect, that appellant habitually cursed, threatened and abused her. On occasions he accused her of unfaithfulness, which she denied. That his cruel treatment had become unbearable. On one occasion he struck her. Much of his mistreatment of her was in the presence of Mary Elizabeth, causing her to cry, to fear him, and to become so nervous and irritable that it became necessary to take her to a physician. Appellee’s parents and other witnesses tended to corroborate material parts of appellee’s proof.

In a contested divorce case, as here, the Corroboration may be relatively slight since the purpose of this requirement is to prevent collusion. See Ham v. Ham, 224 Ark. 228, 272 S. W. 2d 446. We said in Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078, “It is not necessary that the testimony of the complaining spouse be corroborated upon every element or essential of his or her divorce. It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.” As indicated, we hold that appellee’s proof was sufficient.

Next appellant contends that “the decree awarding all the property to the appellee [especially the possession and control of the homestead] was against the statute governing the division of property in such cases.” We do not agree. In a similar situation this issue, as to the homestead, was determined against appellant’s contention in our very recent case of Jarrett v. Jarrett, 226 Ark. 933, 295 S. W. 2d 323. We there- said: “An examination of our own cases clearly discloses that courts granting decrees of divorce may award the possession of the homestead to either of the parties for such time and upon such terms and conditions as appear to be equitable and just. Such is the effect of our decisions in the cases of Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21; Watson v. Poindexter, 176 Ark. 1065, 5 S. W. 2d 299; Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463.”

The court did not err in awarding costs and an attorney’s fee to appellee. Such allowances are always within the sound discretion of the trial court and unless abuse of such discretion be shown, we will not disturb it. See Plant v. Plant, 63 Ark. 128, 37 S. W. 308 and Gabler v. Gabler, 209 Ark. 459, 190 S. W. 2d 975.

We further hold that the court did not err in directing the $50 monthly payment for child support to begin January 1, 1956, since it is undisputed that the court had the case under advisement from October 1955 until September 10, 1956, when the decree was rendered, and since this period of time, approximately 9 months, followed the trial and the completion of all the testimony.

Finally, appellant says “that the rights of visitation should have been made more definite and certain in the decree.” On this point the decree recites: “Said defendant [appellant] shall have the right to visit said •child at reasonable times and places,” and further in the decree “that this court retains jurisdiction of this cause for any further necessary orders.” Should appellant, therefore, at any time feel that he was being denied by appellee the opportunity of reasonable visitation, the trial court will be open to him to preserve his rights in this connection.

Finding no error, the decree is affirmed.


text:
    St. Louis-San Francisco Ry. Co. v. Ark. Publ. Service Comm.
    5-1273
    304 S. W. 2d 297
    Opinion delivered July 1, 1957.

      George E. Bailey, St. Louis, Mo.; Edward L. Westbrooke and Bernal Seamster, for appellant.

      John R. Thompson, Rose, Meek, House, Barron & Nash, Stanley E. Price and W. Dane Clay, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves the ad valorem assessment of the. St. Louis San Francisco Bailway Company (hereinafter called “Frisco”) for the year 1955. The Arkansas Public Service Commission (hereinafter called “Commission”) made the assessment (see § 84-606 et seq. Ark. Stats.); and Frisco appealed to the Pulaski Circuit Court (see Act No. 388 of 1953 as found in § 84-120 Ark. Stats. Cumulative Pocket Supplement). The Circuit Court entered its judgment; and Frisco appeals to this Court. We have three main questions; being extent of review, the valuation, and the ratio of assessment.

I. Extent Of Review. The first point is the extent of review in the Circuit Court of the assessment made by the. Commission. Prior to Act No. 388 of 1953 (see § 84-120 Ark. Stats. Cumulative Pocket Supplement), the applicable law was Act No. 191 of 1949, and it provided in Section 8 thereof that any person aggrieved by the findings of the Commission could appeal to the Circuit Court and the proceedings “. . . shall be tried de novo on the record made before the Commission.” But in the Act No. 388 of 1953 the words “on the record made before the Commission” were deleted; so that the law now merely provides that there would be a de novo trial in Circuit Court.

When we consider the entire matter of assessments and the. power of the Courts over assessments, it is clear that this Act No. 388 of 1953 does not contemplate the kind of de novo trial in Circuit Court — in an appeal from the Commission — as one would have in a de novo trial in an appeal from a Justice of the Peace Court to the Circuit Court. The Circuit Court does not sit as an assessment or appraisal body when it hears the appeal from the Commission. In Cook v. Surplus Trading Co., 182 Ark. 420, 31 S. W. 2d 521, we said:

“It is not within the province of the Courts to assess property, . . . Courts can only review the assessments made by the assessing officers, and have no power under our Constitution and laws to make the assessments. ’ ’

The purpose of any Court appeal from an assessment or equalizing agency is to see that the assessment is neither erroneous in figures, nor arbitrary in measuring, nor confiscatory in results. In 84 C. J. S. 1123, the effect of the holdings is summarized in this languag’e: “On an appeal from an assessment, the Court will not disturb the decision of the assessors unless it is clearly erroneous, or, unless, as required by Statute, the assessment is manifestly excessive, fraudulent, or oppressive. Ordinarily the Court has no jurisdiction to make a tax assessment, and if it finds error, it should remand the case to the assessing body for further proceedings in accordance with the Court’s findings.”

On appeal to the Circuit Court in this case, the record before the Commission was filed; and Frisco, as the objector, had the burden of showing that the assessment was erroneous in figures, arbitrary in measurement, or confiscatory in result. In its judgment, the Circuit Court found certain items misplaced or overvalued, and stated as to what extent the original assessment was ,a mistake in figures. It found that there was nothing arbitrary in the method of determination, nor confiscatory in the result. The Circuit Court remanded the matter to the Commission to make the proper corrections. This was the correct procedure because our Statute, then effective, (§ 84-611 Ark. Stats.) directed the Commission to certify to the assessor of each County affected, in which is located any property of the carrier, the correct amount of the assessment in order that the taxes shall be extended and collection made, as in cases of other property.

II. Valuation Of Frisco’s Property. From the judgment of the Circuit Court Frisco appeals to this Court, claiming both mistake in figures, arbitrariness of the “yardstick,” and confiscatory results of the valuation determined; and we proceed now to consider the matter of valuation. In this Court the Commission has submitted a concise tabulation which the Commission claims is Frisco’s assessment, as made by the Commission and as modified by the Circuit Court judgment. "We copy this tabulation:

I. Cost Value:

(A) $449,827,713.00 RCN-D as of 1/1/54

(B) 15,812,377.00 Net Plant Additions in 1954

(C) 465,640,090.00 RCN-D as of 1/1/55

(D) 10,605,882.00 Working Capital

(E) 9,274,023.00 Materials and Supplies

(F) 485,519,995.00 Cost Value

II. Capitalized Earnings Value:

(G) 16,674,-770.00 5-year Average Net

Operating Income

6% Capitalization

(I) 277,912,867.00 Capitalized Earnings Value

III. Stock and Debt Value:

(J) 267,487,118.00 Stock and Debt as of 1/1/55

(K) 17,717,051.00 Non-Utility Property

(L) 249,770,067.00 Stock and Debt Value

IV. Recapitulation:

485.519.995.00

277.912.867.00

249.770.067.00

(M) 3/1,013,202,929.00

(N) 337,734,310.00 System Value

(O) 10.33% Arkansas Ratio to System

(P) 34,887,954.00 Arkansas Value

(Q) 20% Assessment Ratio

(R) 6,977,591.00 Arkansas Assessment

It will be observed that each item is identified by letter; and later we shall explain and discuss the controversy on some of these items, likewise making reference to alphabetical identification. But before considering the matter of figures, there is the question of the “yardstick”: by which is meant the factors that the Commission used to determine the valuation of Frisco’s properties. The Commission considered three factors, being (I) cost value (lines A to F), (II) capitalized earnings value (lines G to I), and (III) stock and debt value (lines J to L). These three factors were given equal weight in determining the system value because in the recapitulation (IV), the three values were totalled and divided by three. This use of cost value, capitalized earnings value, and stock and debt value, is what we refer to as the “yardstick.” Our applicable statute on method of valuing properties, as in this case, is § 84-606 Ark. Stats., and the germane portions of it provide:

“The valuation of the property of all . . . corporations required by law to be assessed by the Commission shall be made upon the consideration of what a clear fee simple title thereto would sell for under conditions under which that character of property is usually sold. As evidence tending to show what this would be the Commission, is so far as other evidence and information in its possession does not make it appear improper or unjust for it to do so, shall ascertain as nearly as it can and consider the market or actual value of all outstanding capital stock and funded debt and tbe income of sucb companies, and also tbe estimated investments and valuation of said property as set up by tbe officers or agents of sucb companies as a basis for tbe adjustment of rates or charges for service to the public by such companies, and such other information as to value the Commission may obtain. (Acts 1927, No..129, § 18 p. 400; Pope’s Dig., § 2044).

The Statute requires the Commission to assess the property on what a ‘ ‘. . . clear fee simple title thereto would sell for under conditions under which that character of property is usually sold.” Then, as evidence to aid the Commission in determining the “clear'fee simple title” value, the Commission, if it is not improper or unjust to do so, shall consider (a) the market or actual value of outstanding capital stock and funded debt and the income of such companies, and (b) the established investments and valuation of the properties, and (c) such other information as to value as the Commission may obtain. These factors — cost value, capitalized earnings value, and stock and debt value — have been used by the Commission in this case (and the record shows have been used by the Commission in many other cases) as an aid, and as evidence of the actual clear fee simple title value, which is the ultimate desire in ad valorem assessments.

Is this method — of cost value, capitalized earnings value, and stock and debt value ■ — ■ a fair “yardstick” to determine the system value of Frisco’s property? Frisco claims that the cost value is overweighted and that it should be given little, if any, consideration; and Frisco also claims that some of the other factors in the “yardstick” have been overemphasized. "We hold that the “yardstick” used by the Commission in determining the system value of Frisco in this case is fair and not arbitrary. It is undenied that such a “yardstick” has been used by the Commission heretofore, and that sucb a “yardstick” is used in other states. One such case is that of Chicago & Northwestern Ry. Co. v. Department of Revenues, 6 Ill. 2d 278, 128 N. E. 2d 722, decided by tbe Supreme Court of Illinois in 1955, with certiorari denied by the U. S. Supreme Court, 251 U. S. 950. This is not the only “yardstick” that could be used, but it is fair and equitable. As Mr. Justice Butler said, in 1934, in Rowley v. Chicago & Northwestern Ry. Co., 293 U. S. 102, 79 Law Ed. 222, 55 S. Ct. 55, in discussing the assessment of railway properties by the State of Wyoming:

“The ascertainment of the value of a railway system is not a matter of arithmetical calculation and is not governed by any fixed and definite rule. Facts of great variety and number, estimates that are exact and those that are approximations, forecasts based on probabilities and contingencies have bearing and property may be taken into account to guide judgment in determining what is the money equivalent — the actual value — of the property.”

We come then to the specific figures contained in the foregoing tabulation. Line (A) is the “Reproduction Cost New Less Depreciation,” and is a figure furnished the Commission by the Interstate Commerce Commission. Line (B) — the plant addition figure — was furnished the Commission by Frisco. Lines (D) and (E) are self explanatory. So, the total of the cost value shown in line (F) is correct.

(G-). In the tabulation the figure in line (G-) is $16,674,700 as the “5-year average Net Operating Income.” Frisco challenges this figure because it is the income before the deduction of income tax. The Commission concedes that this figure is before any deductions for income taxes. If there should be made a deduction for income taxes, the figure in line (Gr) would become $14,393,207. The question, therefore, is whether the 5-year average Net Operating Income should be listed before or after the payment of income tax. It must be borne in mind that the Commission was considering the “Capitalized Earnings Value” to aid in determining the clear fee simple value of the Frisco system. Income tax is calculated on net earnings. The tax may be great or small, depending on the needs of the taxing power. Prior to World War I, income tax was either non-existent or negligible; there was a period between World War I and World War II when the tax was small; at present the tax is large. Deduction of income tax is not an aid in determining “Capitalized Earnings Value” because the invested capital has made an earning regardless of the income tax rate. This is an ad valorem tax case and not an income tax case. It is not a question of what dividends go to the stockholders, but what is the “Capitalized Earnings Value.” So we see no merit to Frisco’s claim that the income tax should be deducted before listing the operating income.

(H) In the tabulation, in line (H) the figure of 6% is used by which to capitalize the earnings value. Frisco complains of this 6% figure and says it is too high; but we consider 6% to be a fair figure. It was stated by the Commission’s witnesses, and without serious denial by Frisco, that the Commission had used this same figure for a number of years and that other Commissions and tax assessing bodies used the same figure. Certainly it cannot be said that the Commission acted arbitrarily in using the 6% figure for capitalization in this case.

(K) In the tabulation, line (K) contains the figure of $17,717,051 as a deduction for non-utility property. Section 84-610 Ark. Stats, requires that all property — owned by such a taxpayer as Frisco in this case — not used in the utility operation shall be assessed by the County Assessor of the County wherein such property is located; and § 84-613 Ark. Stats, requires that the Commission, in assessing the true value of such a utility as Frisco, shall deduct the value of all property “. . . not used in the utility operation of the Company.” Therefore, the Commission undertook to exclude the value of the non-utility property of Frisco. At the time the Commission made the assessment, the latest report made to it by Frisco was one made in early 1954 (as required by § 84-601 and § 84-603 Ark. Stats.); and that report showed the value of Frisco’s non-utility property to be $17,717,050, which is the same figure shown in line (K) of the tabulation. Frisco claims that it made a mistake in its 1954 return and that the correct figure that should have been in the return was $63,611,641. But when an analysis is made of Frisco’s larger figure, it shows that it was not a mere mistake by Frisco, but that the larger figure was based on items that appear to have been an afterthought. For instance, in the larger figure of $63 million plus now claimed by Frisco, there is the stock market quotation of December 31, 1954 of some stock owned by Frisco in the New Mexico and Arizona Land Company. That stock market quotation could not have been in existence when Frisco made its return to the Commission in early 1954. Also, in Frisco’s larger figure of $63 million plus, there is included an item of temporary cash investments in excess of $11 million. These cash investments might have been used by Frisco as asset available for use in its public utility operations. At all events, we cannot say that the Commission made a mistake or was arbitrary, in using in line (K) the identical figure furnished by Frisco to the Commission, rather than a figure urged by Frisco much later. So, we find no error in the figure used by the Commission in line (K) of the tabulation.

(0) In discussing the “yardstick,” we said that line (N) was the total system value of Frisco. The next step of the Commission was to determine the portion of the total system value that might be considered as being in Arkansas. In line (0) of the tabulation there is the figure of 10.33% as the Arkansas ratio to the system; and Frisco challenges that figure and insists that it is too large. In view of the state of the record before us and our holding on the Extent of Review (as discussed in Topic I, supra), we conclude that Frisco is correct in this contention. The Commission, in making its determination of the tax assessment of Frisco, fixed the “Arkansas ratio to the system” separately on each of the three principal items. That is to say: on “I. Cost Value” the Commission fixed the “Arkansas ratio to the system” to be 10.40%; on “II. Capitalized Earnings Value” the Commission fixed the “Arkansas ratio to the system” to be 9.14%; and on “III. Stock and Debt Value” the Commission fixed the “Arkansas ratio to the system” to be 9.71%. The average of these percentages is 9.75% and not 10.33%. When the ease went to the Circuit Court, that tribunal held that the “Arkansas ratio to the system” should be determined after the total system value had been found (as in Line N, supra) rather than on each of the three separate items. It is true that in the Circuit Court hearing the Commission attempted to show additional factors to be considered in fixing the “Arkansas ratio to the system,” some such being: car and locomotive miles, traffic units, traffic miles, etc.; and the Commission now claims that with these other factors the percentage should be 10.33% rather than 9.75%. But under our holding in Topic I, supra (on the Extent of Review), it is clear that the hearing in the Circuit Court was not for the purpose of allowing the Commission to have the Circuit Court make an increase in assessment: rather the hearing in the Circuit Court was for the purpose of allowing Frisco to show either that the assessment was erroneous in figures, arbitrary in measurement, or confiscatory in result. Under such circumstances, the Commission cannot now justify its claim that Line (O) should be 10.33%. Instead, the figure in Line (O) as the “Arkansas ratio to the system” should be 9.75%, which is the average of the figures used by the Commission in making the assessment. This change from 10.33% to 9.75% will reflect a difference in Lines (P) and (B) of the tabulation. The correct figures for Lines (P) and (B) will be stated in the paragraph of this opinion entitled “Conclusion.”

To summarize: we have considered, by reference to lines in the tabulation, all of the lines (A) to (0), inclusive, that have been challenged by Frisco seriously enough to justify discussion; and we have approved all lines down to Line (N) and now change Line (0) to 9.75%.

III. Assessment Ratio. Leaving Lines (P) and (B) for the portion of this opinion entitled “Conclusion,” we come to Line (Q) of the tabulation which showed the assessment ratio at 20%; and this figure is so seriously challenged by Frisco that we have assigned it a topic heading. Property in Arkansas is not assessed at its actual value but only at a percentage of the actual value; and in line (Q) of the tabulation the Commission determined that the property of Frisco in Arkansas would be assessed at 20% of its actual value. Frisco says that other property in Arkansas is not assessed so high, and that 12.32% is correct instead of 20%. Section 84-714 Ark. Stats, provides that the Commission shall sit as the State Board of Equalization in each year for the purpose of equalizing the “taxable valuation” of all property. Such Board examines and compares the returns from the several counties, hears witnesses, and makes investigations “. . . so that all the taxable property throughout the State shall be assessed uniformly ... at such percentum thereof as has been duly certified by the Commission.” Section 84-103 (c) requires the Commission to certify to each County in the State in advance of the assessing period “. . . a certificate showing the percentum of true and full market or actual value that it has used, or will use, in valuing for taxation for that year the property the Commission is required to assess.” The evidence in this case shows that the Commission had certified 20% of the true or actual or market value as the assessment figure that the Commission had used and would use; and the County assessing authorities were required to use the' same figure in their assessments.

To justify its claim that the 20% as used by the Commission is too high and that the correct figure should be 12.32%, Frisco offered in evidence its Exhibit Q, being a document of twenty-five pages, dated March 1, 1956, and purporting to be a “Report of Committee to study ratio of 1955 Arkansas ad valorem property assessments to 1954 real estate sales.” This report is a very interesting document, but even if sufficiently authenticated to constitute evidence — a point we need not decide — it is nevertheless only a sample check or a series of spot checks of a limited number of ad valorem property assessments, as compared to the consideration for the sale of such property as disclosed either by the Federal stamps on the deeds or the recited consideration. Certainly such a study of a limited number of transactions cannot prove that all transactions in' the State would show that the property was only assessed at 12.32% of its value. Neither can this study irrefutably prove (a) that the Commission was in error in fixing 20% as the amount for which it assessed the properties it was required to assess, or (b) that the various County Assessors disobeyed the Statute and failed to assess the properties in their Counties at the figure the Commission had certified. The witness, Walter P. Hinton, Jr., who was Director of the Assessment Coordination Division of the Arkansas Public Service Commission, stated that under Act No. 153 of 1955 the State of Arkansas was attempting a complete ratio study and that it would not be completed until the latter part of 1957. Until a complete study is shown to have been made, we think it would be improper to allow a partial study to refute the duty of the local assessing authorities to assess at the figure certified by the State Commission.

We recognize that obtaining a fair assessment of property has been a serious problem in this State for many years; but we know that considerable headway has been made toward more equitable assessments. Act No. 153 of the Legislature of 1955 shows the labor that the State is undertaking in this regard ; and in Section 4 of that Act the same figure of 20% is used. Some classes of property in Arkansas are assessed at more than 20%; other classes are assessed at less than 20%; but the State is striving for a 20% figure. In this case Frisco has failed to show either that the Commission was in error in fixing the figure at 20%, or that the said figure was arbitrary, or that the said figure would result in confiscation.

CONCLUSION

The Commission has cross appealed, complaining of certain rulings of the Circuit Court; but in approving, as we have, Lines (A) to (N) of the tabulation, we have thereby disposed of the cross appeal.

We come now to Lines (P) and (R) of the tabulation. These must be changed because of the change made in Line (O) from 10.33% to 9.75%. Here are the concluding lines of the tabulation as revised and corrected by this opinion:

(N) $337,734,310.00 System Value

(O) 9.75% Arkansas Ratio to System

(P) 32,929,095.00 Arkansas Value

(Q) 20% Assessment Ratio

(R) 6,585,819.00 Arkansas Assessment

This revised tabulation shows the Arkansas assessment of Frisco for 1955 to $6,585,819. Frisco has failed, to show that such figure is either erroneous, or arrived at by an arbitrary method, or would result in confiscation. Therefore, we determine that figure to be correct, and we remand this case to the Circuit Court with directions to remand to the Commission to use the said figure and to take all steps for the Arkansas collecting agencies to collect the tax and interest from Frisco based on said figure. Interest on the balance of the tax due by Frisco will be calculated at 6% from November 1, 1956 until paid; and if not paid within thirty days after the determination of the balance actually due by the divisions, then the full statutory penalty, interest and costs will attach to said balance, the same as for delinquent taxes. The costs of this case are assessed against the appellant.

George Bose Smith, J., not participating.

       In this Court on motion of Frisco, and in order that all possible parties may be in the case, two newly created state agencies have entered their appearances, adopting and supporting the position of the Arkansas Public Service Commission. These two new agencies are the Arkansas Commerce Commission and the Arkansas Tax Assessment Coordination Department. (See Acts 132 and 234 of 1957.)

       In 2 Arkansas Law Review, page 67, there is an enlightening article entitled, “Judicial Review of Findings of the Arkansas Public Service Commission.”

       Merely for information purposes, attention is called to Act No. 234 of 1957, in Section 6 of which the words are used: “. . . de novo on the record made before the respective Commission.”

       Some time ago the parties stipulated in this Court that, until the finaldeeision in this case, Frisco might pay the taxes on a valuation of $5 million for the year 1955, conditioned that as soon as this case was finally decided, any additional tax and interest thereon, if any, would be promptly paid by Frisco. This will be covered in our directive contained in the section entitled “Conclusion”.

       “RCN-D” means “Reconstruction New Less Depreciation”.

       Section 84-610 Ark. Stats, says in part: “The Commission shall then ascertain and fix the value of the total utility operating property, tangible and intangible, in this State, by taking such proportion of the true market or actual value of the entire operating property, tangible and intangible, of such company, actually used in its public utility business, as its total lines within this State bear to the total lines both within and without this State, or as its total receipts or income from operation within this State bear to its total receipts or income from operation both within and without this State, or by using such other recognized method, or combination of methods, as will, in the judgment of the Commission, result in a just and equitable apportionment to this State of its due proportion of the value of the total utility operating property.”

       We are not bolding' that these factors could not have been considered by the Commission originally: we are merely holding that these factors could not be brought into the Circuit Court hearing for the first time in order to thereby increase the percentage already fixed by the Commission.

       The witness, Earl Berry, who is Director of the Tax Division of the Arkansas Public Service Commission, testified that the 20% figure was used in this case because the Commission, under its order of December 18,1954, had certified 20% of the true market value of the property as the percentage to be used in assessing.

       This report was made by and to the Missouri-Arkansas Association of Tax Representatives, which is an association composed of the tax representatives of various utilities, all of whom are interested in seeing that their property is not over-assessed.

       Some of our cases arising because of this Act, or other tax assessing acts, are Latham v. Hudson, 226 Ark. 673, 292 S. W. 2d 252; and Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508.


text:
    Clauss v. Baumgartner.
    5-1291
    305 S. W. 2d 116
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      M. Steele Hays and Richard Mobley, for appellant.

      Robert J. White, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case involves accretions claimed by adjacent riparian owners on the west bank of the Arkansas River in Logan County. The appellants insist that the accretions should be apportioned according to the rule stated in Malone v. Mobbs, 102 Ark. 542, 145 S. W. 193, 146 S. W. 143 and reiterated in Hamilton v. Horan, 193 Ark. 85, 97 S. W. 2d 637. The appellees recognize the rule of these cases; but claim that in this case there was an agreement as to the boundary line, and that such agreement is decisive of the case.

Appellants, Mr. and Mrs. Clauss, owned lands in Section 3, Township 8 North; and appellees, Baumgartner et al. owned lands adjacent to the north and being-in Section 34, Township 9 North. The Arkansas River is the east boundary of the lands in said sections. Mr. and Mrs. Clauss filed suit on January 13, 1955, claiming that the Arkansas River, in moving- easterly from 1927 to 1955, had added accretions on the west bank; and that under the rule of apportionment stated in the Arkansas cases previously cited, the line of division of such accretions would give Mr. and Mrs. Clauss river frontage of approximately one-quarter of a mile extending northerly into the lands now in Section 34. The defendants, Baumgartner et al., claimed, inter alia, that it had been agreed many years ago by the owners of Section 34 and Section 3, that the south boundary line of Section 34 (being also the north boundary line of Section 3) extended easterly to the Arkansas River was the division line of the accretions. The Chancery Court found that the said agreement had been made; and therefore entered a decree for the defendants, Baumgartner et al. From that decree the plaintiffs, Mr. and Mrs. Clauss bring this appeal.

I. Proof Of The Alleged Boundary Agreement. Except for the agreement relied on by the appellees, the appellants would prevail on the apportionment of the accretions; so we come directly to the agreement. Baumgartner et al. contracted to purchase their lands in Section 34 in 1932; received their deed in 1934; had a survey made in October, 1935; there was then a distance of 2,535 feet from the southwest corner of Section 34 easterly to the river; and Baumgartner et al. used the south line of Section 34 as the boundary line. In 1940 Pierce and Munn purchased the lands in Section 3; they had Colonel Stroop make a survey of the accretion land; after the Stroop survey, Munn and Baumgartner had a conversation about the boundary line; and it was agreed that the south line of Section 34 extended easterly to the river would be the division line of the accretions, and this boundary line would extend to the southeast corner of Section 34 if the river added accretions for that distance. A fence was constructed along the south line of Section 34 to the river bank; Baumgartner et al. cut timber and exercised other acts of ownership of the lands north of the division line; and Pierce and Munn cut timber and exercised other acts of ownership on the lands south of the division line. Portions of the fence along the division line were washed away in subsequent overflows, but the division line was blazed, and portions of the fence were still visible at the time of the trial in the Chancery Court.

Munn and Pierce sold the lands in Section 3 to Neumier in 1943; Neumier and his tenants remained south of the south line of Section 34 extended easterly; Neumier sold to Clauss in 1948; Clauss never made any overt claim to any of the lands north of the south line of Section 34 extended easterly to the river until a short time before the filing of this suit. Baumgartner et al. exercised all the possession that was exercised by anyone on the lands north of the south line of Section 34 extended easterly to the river; and neither Clauss nor anyone else ever attempted to exercise any possession of any kind north of the said line.

In view of the foregoing evidence, and others in the record, it is clear: (a) that up until 1940 there had been uncertainty as to the dividing line of' the accretions; (b) that after separate surveys the then owners agreed on the division line as being the south line of Section 34 extended easterly to the river; (c) that both parties making the agreement claimed up to the said dividing line and never claimed beyond it; and (d) that the successors in title to Munn and Pierce (Neumier and Clauss never openly claimed beyond the agreed boundary line until a short time before the filing of this suit.

It is true that the evidence is in sharp dispute on many of the matters we have detailed; and it is also true that Baumgartner’s testimony as to the boundary line agreement was attacked as contradictory to that contained in his previous deposition. Nevertheless, the Chancery Court found that there had been an agreement as to the boundary line and that such agreement had been observed by the owners of Section 3 until shortly before the filing of this suit. Prom a careful study of the record, we cannot say that the finding of the Chancery Court is against the preponderance of the evidence on this factual question.

I. The Validity And Efficacy Of The• Boundary Line Agreement. We have many cases on agreed boundary. Some of them are: Sherman v. King, 71 Ark. 248, 72 S. W. 571; Cox v. Daugherty, 75 Ark. 395, 36 S. W. 184, 112 Am. St. Rep. 75; Payne v. McBride, 96 Ark. 168, 131 S. W. 463, Ann. Cas. 1912B 661; Malone v. Mobbs, 102 Ark. 542, 145 S. W. 193, 146 S. W. 143, Ann. Cas. 1914A 479; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289; and Jewel v. Shiloh Cemetery Assn., 224 Ark. 324, 273 S. W. 2d 19. We have many times quoted and applied the rule as clearly stated by Chief Justice Hart in Robinson v. Gaylord, supra:

“. . . where there is a doubt or uncertainty, or a dispute has arisen, as to the true location of a boundary line, the owners of the adjoining lands may, by parol agreement, fix a line that will be binding upon them, although their possession under such agreement may not continue for the full statutory period.”

In the case of Malone v. Mobbs, supra, there was involved the application of the agreed boundary line rule to accretions. In that case — just as here adjacent land owners agreed that the extension of the section line would be the boundary line of the accretions. This Court upheld the agreement, saying:

“In the case of Payne v. McBride, 96 Ark. 168, we held: ‘Where there is doubt, dispute or uncertainty as to the true location of the boundary line the parties may by parol fix a line which will, at least when followed by possession with reference to the boundary so fixed, be conclusive upon them although the possession is not for the full statutory period.” To the same effect is O’Neal v. Ross, 100 Ark. 555; Butler v. Hines, 101 Ark. 409. It follows that the line agreed upon by Burrows and Hill is the true line between the parties as to the accretions.”

Appellants recognize the force of the rule just stated and its application to accretions; but offer two arguments in an endeavor to show that the rule should not be applied in the case at bar. In the first place, the appellants say that the 1940 agreement was nullified because the lands washed away after 1940 and were reformed. The Chancery Court found otherwise, and such finding is not contrary to the preponderance of the evidence, especially in view of one salient fact, which is: that portions of the wire fence, erected in 1935 on the accretions, are still visible. Certainly, the presence of this fence shows that the lands were never washed away and restored.

Secondly, the appellants contend that any such agreement about the division line being the south boundary line of Section 34 extended easterly to the river, even if made as detailed in Topic I, could only relate to the lands then in existence and not to lands subsequently formed by accretions. But we hold such contention to be without merit in this case. The record shows that at the time of the survey in 1935, the distance from the Southwest corner of Section 24 easterly to the river was 2,535 feet. It is not stated what the distance was when the 1940 agreement was made; but the maps in- the record reflect that the west bank of the river is now some■where in the SW14 SE14 of Section 34. A scaling of the map indicates that the west bank is now approximately 3,080 feet east of the southwest corner of Section 34. So a distance of approximately 545 feet has been added to the division line since the 1935 survey. Possession has been taken by Baumgartner et al. of the new accretions north of the division line just as rapidly as the accretions have been formed. In short, the agreement as to the boundary has been “. . . followed by possession with reference to the boundary so fixed . . .” just as rapidly as the lands have formed.

In view of these facts, we think the 1940 agreement covers all the lands herein involved. The case of Reeves v. Moore, 105 Ark. 598, 151 S. W. 1025, does not hold that an agreement for such a short distance is unreasonable or void. In that case it was sought to make a boundary line agreement of 1870 apply to accretions formed as late as 1907, and to have the boundary line agreement extend for over a mile and across island lands. The factual situation here is vastly different.

Finding no error, the decree of the Chancery Court is affirmed.

George Rose Smith, J., dissents.

       This was one of the best tried cases on accretions that we have been privileged to examine. Appellants, having the burden in the lower court and also in this Court, have presented every available source of information on the course and changes in the river; and both sides have favored us with excellent briefs.

       In Knight v. Rogers, 202 Ark. 590, 151 S. W. 2d 669, we had occasion to consider the accretion on the north of said Section 34.

       Quotation from Payne v. McBride, supra.


text:
    Arkansas Commemorative Commission v. City of Little Rock.
    5-1353
    303 S. W. 2d 569
    Opinion delivered July 1, 1957.

      Bruce Bennett, Atty. Geni.; John T. Haskins, Asst. Atty. Geni., for appellant.

      O. D. Longstreth, Jr., City Atty.; Joseph C. Kemp, Asst. City Atty., for appellee.
   Ed. F. McFaddin, Associate Justice.

The Arkansas Commemorative Commission (hereinafter called “Appellant”) filed this suit against the City of Little Rock, and claimed that the appellant had acquired by adverse possession a portion of Water Street in Little Rock. From a decree of the Chancery Court refusing such claim of adverse possession, the appellant brings this appeal, and claims that the preponderance of the evidence requires a reversal.

The Old State House in Little Rock occupies the area that is bounded by Markham Street on the south, Ashley Street on the east, Water Street on the north, and Conway Street on the west. In constructing its Riverfront Drive the City of Little Rock (hereinafter called “City”) proposed to use a portion of Water Street. In about 1952 a fence was erected around the Old State House property, and this fence encroached into Water Street a distance of several feet. When the City proposed to remove that portion of the fence which so encroached into Water Street, the appellant filed this suit.

The City denied the fact of adverse possession and also claimed that adverse possession could not run against the City. The testimony showed that north of the Old State House the land slopes down sharply to the Arkansas River; and a number of years ago (about 1888) a wall was constructed to prevent the erosion of the soil. This wall (near or on which the 1952 fence was built) encroached on Water Street; and appellant claims that the construction of such wall constituted the beginning of adverse possession. The Chancellor, in deciding the case on the question of adverse possession, rendered an opinion which is so clear that we copy and adopt excerpts from it:

“The Petitioner Failed To Prove Adverse Possession. Assuming that the petitioner in this case could legally obtain title to the lands in question by adverse possession, there is absolutely no proof in the record to sustain such.

“To be adverse, possession of land must be actual, open, continuous, hostile, exclusive and be accompanied with an intent to hold adversely to the true owner. (Watson v. Hardin, 97 Ark. 33). There is no evidence in the record of this case to establish that the possession, if any, by the petitioner of the lands in question meets the requirements set out above. Instead, it appears that any possession or occupancy of said lands on the part of the petitioner was purely permissive by the City of Little Rock and the general public.

“It is true that witnesses testified that a wall had been built on part of the land in the late 1800’s and rebuilt and rerouted in 1930, but there was no evidence that such wall was built by the petitioner or anyone else with intent to claim said portion of Water Street adversely from the City of Little Rock and the general public. Not a single member of the Arkansas Commemorative Commission testified in this hearing. Further, not a single witness who testified on behalf of the petitioner was able to state that there was ever any intent on the part of the petitioner (or anyone else) to claim this street adversely and to claim such as a part of the grounds of the Old State House Square.

“To the contrary, the testimony of the petitioner’s witnesses was to the effect that the first wall was built by the Engineers’ Club of the City of Little Rock and other civic-minded organizations to prevent erosion. There was undisputed testimony that the rebuilding and relocating of the wall encroaching on Water Street in 1930 was done by the City of Little Rock, the Marion Hotel, and the Big Rock Stone & Material Company without any intent to divert the use of Water Street to a purpose foreign to that of a street.

The circumstances under which the petitioner allegedly took possession are not shown; however, it appears that it was because the City did not need the street at that time or lacked sufficient funds to open it up. But, be that as it may, in the absence of any contract or Legislative recognition of a higher right, it will be presumed that such use and occupation by the petitioner were by sufferance merely and without any intent on the part of the Arkansas Commemorative Commission (or anyone else) to appropriate the land to itself. Now a permissive possession, however exclusive and however long in point of fact it may be endured, could never ripen into a title against anybody; for it is not considered as the possession of a precarious occupier but of him upon whose pleasure its continuance depended.

“The whole doctrine of title by adverse possession rests upon the acquiescence of the owner in the hostile acts and claims of the person in possession. Hence, possession, to be adverse, must be in hostility to, and not in subserviency to, the rights of the true owner. (Pulaski County v. The State, 42 Ark. 118.) . . .

“Thus, there is a complete lack of proof of adverse possession, . . .”

From a careful study of the record, we are unable to say that the Chancellor’s finding of facts is against the preponderance of the evidence. We forego any discussion of (a) when public streets could have been acquired by adverse possession; or (b) whether a state agency can ever acquire title by adverse possession against a city. We rest our decision in this case on the points: (a) that the Chancellor held that there was no evidence to show that the erection of the wall over a portion of Water Street was for the purpose of’ starting adverse possession; and (b) that we cannot say such finding of fact was against the preponderance of the evidence.

The decree is affirmed.

       The Arkansas Commemorative Commission was created by Act No. 256 of 1947 (see § 8-201 et seq. Ark. Stats.) ; arid among other duties the Commission is charged with the responsibility of preserving the Old State House in Little Rock.

       By Act No. 81 of 1951 the building was officially designated as “the Old State House”. (See § 8-301 Ark. Stats.)