author: Lyle Brown, Justice.

text:
    Barbara WILLIAMS v. WESTINGHOUSE CREDIT CORPORATION et al
    5-5591
    468 S. W. 2d 761
    Opinion delivered June 28, 1971

      V. A. Gentry, for appellant.

      Owens, McHaney ir McHaney and Hale & Fogleman, for appellees.
   Lyle Brown, Justice.

Prior to her demise Mrs. Janet Hesson, mother of appellant Barbara Williams, entered into a conditional sales contract with appellee Poole Trailer Sales, Inc. of West Memphis, Arkansas, for the purchase of a mobile home. The contract was assigned to appellee Westinghouse Credit Corporation. Mrs. Hes-son paid each monthly installment until her death in April 1967. After her death the administrator of her estate paid the monthly installments until the mobile home was transferred to appellant in November 1968 in the course of the administration of the estate. Appellant has made no payments on the contract since the transfer and a balance remains due of $3,155.90.

Appellee Westinghouse as assignee of the conditional sales contract filed suit in circuit court praying for judgment against appellant in the sum of $3,155.90 and for sale by the court of the mobile home or surrender to Westinghouse for sale by it pursuant to the Uniform Commercial Code whereby the proceeds would be applied to the payment of the judgment. In the alternative appellee Westinghouse prayed judgment for the recovery of the mobile home, for damages for detention thereof, and for all other proper relief.

Appellant answered the complaint, alleging that the contract entered into by Mrs. Hesson and appellee Poole Trailer Sales was usurious and alleging that Poole Trailer Sales agreed to purchase credit life insurance payable to appellee for the benefit of Mrs. Hesson and failed to do so, all to appellant’s damage in the amount of the remainder due upon the contract. Appellant further denied that appellee Westinghouse was entitled to possession of the mobile home and alleged that the institution of a suit for a money judgment waived the retention of title to the subject property and thereby relegated Westinghouse to its alleged right to a personal judgment. By way of amendment appellant alleged that the sales contract did not reflect the correct purchase price. Appellant prayed, the above premises considered, that appellee Westinghouse take nothing and for all other general and equitable relief to which she was entitled.

On motion of both appellee Westinghouse and appellant Barbara Williams the cause was transferred to chancery court on February 12, 1970, for the reason that certain defenses asserted in the answer and amended answer were equitable in nature. Thereafter, on May 8, 1970, appellant filed a written motion asking that the cause be transferred back to circuit court, alleging that the pleadings did not disclose any equitable grounds for determination of the issues and, therefore, chancery was without jurisdiction. The chancellor denied the motion.

Appellant filed an amended and substituted answer in chancery on May 26, 1970, which made essentially the same allegations as previously made and additionally alleged that Poole Trailer Sales and Westinghouse were jointly and severally liable to the estate of Mrs. Hesson and/or appellant as successor to the rights of the estate.' Appellant then prayed that Poole Trailer Sales be made a party to the suit and in the alternative that if Westinghouse be awarded judgment in its favor, appellant Barbara Williams have and recover of and from Poole Trailer Sales a sum equal to the amount awarded. Appellant further prayed for all other general relief to which she might be entitled:

At the opening of the trial on November 2, 1971, appellant again objected to the jurisdiction of chancery to try the cause due to the fact that appellee Westinghouse had filed a suit originally in circuit court in which a personal judgment was sought against appellant and the impounding of the mobile home and that such a suit was exclusively within the jurisdiction of a court of law. Appellant contended that such an action constituted a waiver of the security interest which Westinghouse had by virtue of the title retaining contract and constituted an election of a remedy inconsistent with a proceeding to foreclose a security interest lien. Appellant further contended that the fact that Westinghouse had admitted to the court at the beginning of the trial that it did not plan to produce any evidence which would subject appellant to a personal judgment but was merely seeking to realize upon the security interest in the mobile home pursuant to the Uniform Commercial Code, affected its right to further proceedings in chancery.

The chancellor overruled the objections to jurisdiction and proceeded with the trial. The chancellor reached the following conclusions of law: That the chancery court had jurisdiction of the parties and subject matter; that the seeking of a personal judgment and sale of the property by the court or by the plaintiff pursuant to the Uniform Commercial Code or alternatively, of a judgment for possession, did not constitute an election of an inconsistent remedy and a waiver or abandonment of its security interest in the collateral; that the dismissal of the cause against appellant for a personal judgment with the consent of Westinghouse at the opening of the trial did not oust chancery of jurisdiction to determine the right of possession of the mobile home; that the evidence was not sufficient to show that Poole Trailer Sales contracted to furnish credit life insurance; that appellant had failed to establish her defense of usury; that payments under the contract were in default; and that Westinghouse was entitled to judgment for possession of the mobile home. The chancellor ordered that Westinghouse be given possession of the mobile home to dispose of it pursuant to the Uniform Commercial Code and apply the proceeds as provided in Ark. Stat. Ann. § 85-9-504 (Add. 1961). The cross-complaint of appellant against Poole Trailer Sales was denied and dismissed.

Now as to the points at issue on appeal. Appellant contends:

(1) That the complaint discloses a cause of action exclusively within the jurisdiction of the circuit court and it was error for the chancellor to refuse to remand;

(2) That if the chancery court had any jurisdiction it was lost when Westinghouse waived its prayer for personal judgment against appellant; and,

(3) That Westinghouse elected to seek judgment and sale of the property, which election precluded it from thereafter trying to shift to another remedy, namely, to enforce a contractual lien.

The first two points are without merit and can be disposed of in one answer. We have heretofore detailed the pleadings of the parties and the findings of the chancellor and they show beyond question that these issues were before the chancellor át all times:

(1) The request by Westinghouse that the trailer be sold pursuant to the terms of the Uniform Commercial Code;

(2) Appellant’s contention that the contract was usurious;

(3) Appellant’s assertion that Poole Trailer Sales agreed to purchase credit life insurance on the debtor, Mrs. Hesson, and its failure to do so entitled appellant to judgment over against Poole for any balance due; and,

(4) Appellant’s contention that Poole Trailer Sales filled in the signed, blank contract showing the purchase price to be $5010 instead of $4885.

With those multiple issues (some of which were equitable) before the chancellor we simply cannot say that he had no jurisdiction. It seems to be appellant’s contention that when Westinghouse waived its prayer for personal judgment against appellant, only a prayer for possession and sale remained, which was cognizable only in a law court; consequently, a transfer back to law court was mandatory. Appellant is in error. Even if the complaint did not state a proper ground for relief in equity, the answer of appellant supplied the defect. Spikes v. Hibbard, 225 Ark. 959, 286 S. W. 2d 477 (1956); Nottingham v. Knight, 238 Ark. 307, 379 S. W. 2d 260 (1964). Appellant’s answer alleged that the written contract which was attached to Westinghouse’s complaint was not the true contract between Poole and Mrs. Hes-son. That answer was, it would appear to us, a request for reformation. Reformation of a contract lies exclusively in chancery court. Washington Standard Life Ins. Co. v. Agee, 231 Ark. 594, 331 S. W. 2d 261 (1960). Appellant’s answer further pleaded usury, an action cognizable in equity which permits the cancellation of the usurious contract. Bailey v. Commerce Union Bank, 223 Ark. 686, 269 S. W. 2d 314 (1954). Thus appellant invoked the jurisdiction of chancery by pleading equitable defenses in her answer. Having invoked the aid of chancery in matters not wholly beyond equitable cognizance, appellant cannot object to the jurisdiction of that court. Spikes v. Hibbard, supra; Ark. State Highway Comm’n. v. Gladden, 238 Ark. 988, 385 S. W. 2d 934 (1965); and Nottingham v. Knight, supra. We have in many instances upheld the right of chancery to retain jurisdiction to decide all the issues of both law and equity when there are essential equitable matters to be litigated. Gregory v. Oklahoma Mississippi River Lines, Inc., 223 Ark. 668, 267 S. W. 2d 953 (1954).

Appellant relies on Spitzer v. Barnhill, 237 Ark. 525, 374 S. W. 2d 811 (1964), for the proposition that the case should have been transferred back to circuit court when Westinghouse dropped its pursuit of a personal judgment against appellant. In Spitzer, however, all equitable issues were resolved by the chancellor and he then transferred the remaining issue as to tort liability to circuit court. But in the case at hand the parties were in chancery because they requested a transfer of the entire case to equity. Later the appellant requested that the entire case, which of course' included equitable issues, be retransferred to law court. We agree with the chancellor that equity had the right, in those circumstances, to retain jurisdiction.

As to appellant’s final point, election of remedies, we agree with appellees that the argument fails for two reasons. First, as noted by Professor Eugene F. Mooney in his article, The Old and the New: Article IX, 16 Ark. L. Rev. 145, 151 (1961-62):

The most significant change in the law of conditional sales contracts is the final and conclusive eradication of the doctrine of election of remedies which has dogged conditional sellers and overjoyed conditional buyers almost since the founding of the State of Arkansas. This was the tricky legacy of the common law: The seller could either sue for damages on the contract or rescind and repossess; but not both. It was all keyed to title passage. The conditional seller (secured party) could not repossess, sell and get a deficiency judgment for the remainder of the sale price. The article by Robert Anderson and Jim Hale in 4 Ark. L. Rev. 19 (1949-50) at page 27 details this once-flowering branch of the law. With the following language from § 85-9-504(2) the whole limb is lopped off: “If the security interest secures an indebtedness, the secured party must account to the debtor for any surplus, and, unless otherwise agreed, the debtor is liable for any deficiency.”

The fact that Westinghouse asked for a judgment and sale as provided by the UCC and in the alternative for possession is not an election of inconsistent remedies. The Code provides specifically that, “The rights and remedies referred to in this subsection are cumulative.” Ark. Stat. Ann. § 85-9-501(1) (Add. 1961).

Second, even if the UCC were not involved, Westinghouse cannot be said to have elected an available remedy. An essential element to an election of remedies is that both remedies are available. Eastburn v. Galyen, 229 Ark. 70, 313 S. W. 2d 794 (1958). In Sharpp v. Stodghill, 191 Ark. 500, 86 S. W. 2d 934 (1935), we held that the pursuit of a remedy which does not in fact exist is not an election but a mistake as to which remedy is available. The mistake may be one of fact or of law. In the case at bar, appellee Westinghouse sought a personal judgment against appellant without knowing that she had not assumed the obligations of the contract between Poole Trailer Sales and her mother, Mrs. Hesson. The remedy of a personal judgment against appellant never being available, Westinghouse did not make an election of an inconsistent remedy.

Affirmed.

Fogleman, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Carrie Sims DAVIDSON et al v Troy HARTSFIELD
    5-5505
    468 S. W. 2d 774
    Opinion delivered June 28, 1971

      John M. Pittman, James P. Baker, Jr., and U. A. Gentry, for appellants.

      David Solomon, for appellee.
   John A. Fogleman, Justice.

This action originated with a complaint by appellants in which they sought to cancel the claim of appellee to an 80-acre tract of land in Phillips County as a cloud on appellants’ title. Appellants alleged that appellee had planted and harvested crops on parts of the land in 1967 and 1968. Appellants professed not to know the exact nature of appellee Harts-field’s claim. Appellee filed an answer claiming title by virtue of deeds to him by Beaver Bayou Drainage District of Phillips County, dated June 11, 1966, and from the Cotton Belt Levee District No. 1 of Phillips County, dated April 29, 1967. He alleged that these districts acquired title through actions foreclosing their liens on the lands arising from taxes, benefits and assessments and that the interest of appellants was thereby extinguished. He also alleged that before the conveyances to him, the districts had acquired the title of the State of Arkansas, which also resulted from the nonpayment of taxes due it. Appellee further pleaded the statute of limitations, laches and estoppel. The chancery court found the issues in favor of appellee and dismissed appellants’ complaint.

On appeal, appellants state that the respective improvement district titles were barred by adverse possession of appellants and their predecessors in title. There seems to be no doubt that appellants, their predecessors in title or their tenants had been in actual possession of the lands in question, most of which were in cultivation for many years, up to and including the year 1966. Appellants contend that their continued possession of the land following its sale for nonpayment of accruing installments of benefits assessed in the improvement districts barred the rights of the districts, and, consequently, of their grantee. This argument, insofar as deeds to the districts more than seven years prior to appellee’s taking possession are concerned, would be well taken in each instance were it not for Act 82 of 1945. That act made the statute of limitations inapplicable to lands which had been sold to an improvement district. Yet, it is necessary that we determine the effect of this act on appellee’s title.

The contentions of the parties and the validity of the deeds under which appellee claims can best be understood by the following chronological table of the pertinent proceedings:

No. Date Item (Where land descriptions are not given the instrument affected the entire 40 acres involved.)

1 May 21, 1925 Decree of chancery court foreclosing lien of Beaver Bayou Drainage District for unpaid installment of assessed benefits for 1924.

2 Sept. 24, 1925 Report of commissioner’s sale to Beaver Bayou Drainage District pursuant to decree described as Item 1 confirmed by chancery court, and commissioner directed to execute deed to purchaser. Deed was acknowledged in open court and approved.

3 June 14, 1927 Commissioner’s deed pursuant to Item 2 recorded.

4 June 24, 1930 Clerk of Phillips County certified that SM NWM NEM of Sec 3, T 3S, R 2E, was sold to the State of Arkansas for nonpayment of the státe and county taxes assessed for the year 1927, which remained unredeemed on that date and were forfeited to the state.

5 May 26, 1934 Title of the state under tax sale and forfeiture for nonpayment of 1927 •_taxes was confirmed by the chaneery court in a suit brought by the state pursuant to Act 296 of 1929, SK NWK NEK Sec 3.

6 Mar. 1947 term Decree of chancery court foreclosing lien of Beaver Bayou Drainage District for unpaid installment of assessed benefits for 1946 on SK NWK NEK Sec 3.

7 July 31, 1947 Commissioner sold 'ands to Beaver Bayou Drainage District pursuant to Item 6.

8 Sept. 20, 1950 Commissioner’s deed pursuant to Items 6 and 7 approved and acknowledged in open court.

9 Sept. 22, 1950 Commissioner’s deed described in Item 8 recorded.

10 Aug. 15, 1951 County clerk certified that NK SWM NEK of Sec 3 was sold to the state for nonpayment of general taxes assessed for the year 1947, which remained unredeemed on that date and was forfeited to the state.

11 Jan. 17, 1952 Decree of chancery court foreclosing lien of Cotton Belt Levee District for unpaid installments of assessed benefits for 1937 and 1938 on SK NWK NEK Sec 3.

12 July, 1952 term Decree of chancery court foreclosing lien of Cotton Belt Levee District No. 1 for unpaid installments of assessed benefits for 1939 on SK NWK NEK Sec 3.

13 July 28, 1952 Commissioner sold land to Cotton Belt Levee District pursuant to Item 12.

14 July 28, 1952 Decree of chancery court foreclosing lien of Cotton Belt Levee District No. 1 for unpaid installments of assessed benefits for 1940 and 1941.

15 Aug. 21, 1953 State deeds lands to the Beaver Bayou Drainage District, upon evidence of erroneous certification of the lands as forfeited pursuant to Act 206 of 1943.

16 Sept. 29, 1954 Commissioner sold lands to Cotton Belt Levee District No. 1, pursuant to Item 11 and reported sale which was confirmed by chancery court; deed was approved and acknowledged in open court.

17 Sept. 29, 1954 Commissioner’s report of sale set out in Item 13 approved by chancery court. Deed approved and acknowledged in open court.

18 Sept. 29, 1954 Commissioner sold lands to Cotton Belt Levee District No. 1 pursuant to Item 14 and reported sale, which was confirmed by chancery court. Deed was approved and acknowledged in open court.

19 Sept. 30, 1954 Commissioner’s deed pursuant to Items 11 and 16 recorded.

20 Sept. 30, 1954 Commissioner’s deed described in Item 17 recorded.

21 Sept. 30, 1954 Commissioner’s deed pursuant to Items 14 and 18 recorded.

22 Mar. 29, 1955 Title of the state to NK2 SWH NEM Sec 3 under tax sale and forfeiture for nonpayment of 1947 taxes confirmed by the chancery court in a suit brought by the state.

23 June 11, 1966 Quitclaim deed from Beaver Bayou Drainage District to appellee conveying all right, title and interest of district by reason of tax forfeiture for the year 1966 and prior years.

24 Apr. 29, 1967 Quitclaim deed from Cotton Belt Levee District No. 1 to appellee conveying all right, title and interest of district by reason of tax forfeitures from the year 1965 and prior years.

It is extremely difficult to follow appellants’ arguments, because all are lumped under their only point to be relied on—“that the learned trial court erred in finding for the appellee on the issue of title.” They do contend, however, that the foreclosure of the lien of Cotton Belt Levee District Nb. 1 for unpaid installments of benefits assessed for the years 1937 and 19.38 (Item 11 above) was barred by the three-year statute of limitations provided by Ark. Stat. Ann. § 20-1140 (Repl. 1968). This statute does not apply to this district or to Beaver Bayou Drainage District. See Ark. Stat. Ann. § 20-1142 (Repl. 1968); Whitaker & Co. v. Sewer Imp. Dist. No. 1, 229 Ark. 697, 318 S. W. 2d 831. However, Ark. Stat. Ann. § 20-1128 (Repl. 1968) does apply and, insofar as pertinent, contains identical language. We find nothing whatever in the abstract of title exhibited or the abstract of the record to indicate the date when the foreclosure suit was filed, so we are unable to say whether this statute of limitations would have applied, in any event.

Foreclosure suits by levee districts and drainage districts are conducted in accordance with the practice and proceedings of chancery courts, with minor and irrelevant exceptions. Ark. Stat. Ann. § 21-634 (Repl. 1968); Ark. Stat. Ann. § 21-547 (Repl. 1968). A statute of limitations, generally speaking, is a defense in judicial proceedings. Western Union Telegraph Co. v. State, 82 Ark. 309, 101 S. W. 748; Harris v. Mosley, 195 Ark. 62, 111 S. W. 2d 563. It must be specially pleaded in a chancery foreclosure. Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S. W. 752. A decree of foreclosure by a court having jurisdiction cuts off all defenses that could have been raised therein, including the statute of limitations. Livingston v. New England Mortgage Security Co., supra; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; Briggs v. Manning, 80 Ark. 304, 97 S. W. 289. A decree cannot be avoided on collateral attack upon the ground of any defense, including the statute of limitations, that might have been asserted in the proceeding in which it is rendered. Lewis v. Bank of Kensett, 220 Ark. 273, 247 S. W. 2d 354; Wallace v. Brown, 22 Ark. 118, 76 Am. Dec. 421. A decree by default is as conclusive on collateral attack as any other rendered by a court having jurisdiction. Lewis v. Bank of Kensett, supra. A decree of a court, vested by statute with jurisdiction to foreclose specified liens by suits in rem upon constructive service by publication, is not subject to collateral attack, when the provisions of the act have been followed and such a decree is given the same favorable presumptions as those rendered upon personal service. Hobbs v. Lenon, 191 Ark. 509, 87 S. W. 2d 6.

Even if the record had disclosed that the statute had run, this defense is not now available to appellant. For the same reason, it is not available in regard to any of che improvement district foreclosures.

Appellants also contend that Beaver Bayou Drainage District’s title under the foreclosure proceedings on account of the 1924 installment was barred by the seven-year statute of limitations set out in Ark. Stat. Ann. § 37-101, (Repl. 1962), before it was amended in 1945. This statute began to run on the date the period of redemption expired. Pinkert v. Polk, 220 Ark. 232, 247 S. W. 2d 19. The date of the foreclosure sale is not disclosed in the record, but it obviously was prior to September 24, 1925, the date of the commissioner’s report of sale. The period of redemption expired after two years, so the statutory bar against Beaver Bayou on account of this foreclosure became complete at least by September 24, 1934. Section 24, Act 279 of 1909, also Ark. Stat. Ann. § 20-1145 (Repl. 1968). The subsequent amendment to the statute (37-101) could not revive the district’s claim since the rights of. appellants had become vested under the statute before amendment. See Smith v. Spillman, 135 Ark. 279, 205 S. W. 107, 1 A. L. R. 136; Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623; Meadows v. Costoff, 221 Ark. 561, 254 S. W. 2d 472; Pope’s Ex. v. Ashley’s Ex., 13 Ark. 262; Couch v. McKee, 6 Ark. 484. Appellee cannot succeed upon the basis of this foreclosure. (Items 1, 2 and 3.)

Beaver Bayou District also foreclosed on the S'á NWM NEM on account of the 1946 installment. (Items 6, 7, 8 and 9.) The three-year statute of limitations would not have, applied to this foreclosure, even if pleaded. Appellants contend, however, that the seven-year statute bars this foreclosure in spite of the 1945 amendment.

Act 82 of 1945, effective February 21, 1945, (Pinkert v. Lamb, 215 Ark. 879, 224 S. W. 2d 15), added the following proviso to Ark. Stat. Ann. § 37-101 (Repl. 1962):

Provided, however, that this section shall not apply to lands which have been sold to any improvement district of any kind or character for taxes due such districts, or to any taxes due any such improvement district, but the lien of said taxes shall continue until paid.

Appellants argue that this proviso is not available to appellee, a purchaser from an improvement district, but that it benefits improvement districts only. The plain language of the statute answers this argument. It does not provide that the seven-year statute does not apply to improvement districts. It does provide that it does not apply to lands which have been sold to any improvement districts of any kind or character for taxes due such districts. The statute would be meaningless if construed according to appellants’ contention, because the district could never dispose of property to which it held title but not possession. The clear intention of the statute was to permit an improvement district to hold title without taking possession from the landowner but not at the risk of bar of a prospective sale by the seven-year statute.

It has been held that this statute is not only available as a defense to one in possession, but that it amounts to an investiture of title and may be used as the basis for title in an affirmative action by the possessor. Worthen v. Rushing, 228 Ark. 445, 307 S. W. 2d 890; Jeffery v. Jeffery, 87 Ark. 496, 113 S. W. 27; Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475. The quitclaim deed to appellee conveyed all title and right of the district. Consequently, appellants’ additional argument that the statute, as amended, cannot be relied upon by appellee in appellants’ action to quiet title as distinguished from one for recovery of possession is without foundation. Appellants themselves are using the statute as the basis of their action and not as a defense, in spite of the supposed limitation of the statute, before the amendment, to suits for recovery of land. It would be inconsistent to hold that the statute is available to one as basis for quieting title, but that the added proviso was not available to another defending that very action.

Title was vested in Beaver Bayou District by this 1946 foreclosure. Title in the district because of previous foreclosures had been previously divested by adverse possession as above pointed out. Consequently, appellee’s title to this 20-acre tract must prevail against appellants’ claim.

The Cotton Belt Levee District title on account of the foreclosure for the 1937 and 1938 installments (Items 14, 18 and 21); were also valid for the same reasons, was also the date of sale. The bar of the seven-year statute no longer applied, because of Act 82 of 1945. We should add that the foreclosures on this tract for 1939 (Items 12, 13 and 17) and for 1940 and 1941 (Items 14, 18 and 21) were also valid for the same reasons. Appellants argue that these subsequent foreclosures could not be valid because of our previous holding in

such cases as Crowe v. Wells River Savings Bank, 182 Ark. 672, 32 S. W. 2d 617. (See also Terry v. Drainage District No. 6, 206 Ark. 940, 178 S. W. 2d 857, in which Word v. Grigsby, 206 Ark. 164, 174 S. W. 2d 439, infra, was ignored.) In these cases we had held that once an improvement district acquired title through foreclosure, it could not rely upon later foreclosures to vest title. These cases are no longer authoritative. In Street Improvement District No. 419 v. Pinkert, 221 Ark. 265, 253 S. W. 2d 780, we rejected such a contention as is made here, pointing out the unsoundness of the premise on which Crowe was decided. We relied upon Word v. Grisby, supra, (in which Crowe was not mentioned), where we reached a result directly contrary to that of Crowe. Not only is the rule in Street Improvement District No. 419 v. Pinkert, supra, a later declaration, it is certainly the sounder of the two rules. If the first foreclosure sale should prove to be invalid, then under the Crowe rule an improvement district could be barred as to subsequent unpaid installments both on those on which it had also foreclosed and on those on which it had not foreclosed in reliance on the Crowe rule. Such a result is contrary to the basic fundamentals on which improvement districts are organized and financed. The earlier Beaver Bayou foreclosures did not bar these by Cotton Belt. Street Improvement District No. 419 v. Pinkert, supra. Appellee’s title to the entire 40 acres is valid because of these foreclosures.

We need not consider the effect of the deed from the state to Beaver Bayou Drainage District, in view of the validity of appellee’s title by reason of the improvement district foreclosures. Neither the forfeiture for 1927 (Item 4) nor that for 1947 (Item 10) was any impediment to the improvement district foreclosures upon which appellee’s title is based. Ark. Stat. Ann. § 20-1146 (Repl. 1968).

The decree is affirmed.

       After filing of the complaint, it was discovered that appellee claimed only 40 acres of the tract. The litigation was thereafter conducted as if it related only to the portion claimed by appellee.

       We do not consider a foreclosure by Cotton Belt Levee District No. 1 for an unpaid installment of assessed benefits for 1922 because the lands are described as all E. of Big Creek Wá Frl. NEM of Sec. 3. Examination of a plat and aerial photograph in the record convinces us that this description does not include any of the lands involved here.


text:
    ARKANSAS LOUISIANA GAS COMPANY v. McGAUGHEY BROTHERS, Inc.
    5-5581
    468 S. W. 2d 754
    Opinion delivered June 28, 1971

      Hout, Thaxton ir Hout, for appellant.

      Pickens, Pickens ér Boyce; By: Tim F. Watson, for appellee.
   John A. Fogleman, Justice.

Arkansas Louisiana Gas Company appeals from a jury award of $28,314 as compensation for lands of McGaughey Brothers, Inc., taken by eminent domain for installation, maintenance and operation of a 24-inch underground gas pipeline. Mc-Gaughey Brothers owned and operated 3,586 acres of farmland located on the east bank of the White River. Crops produced were rice, cotton, soybeans and feed crops. 870 acres were in improved pasture over which there were unimproved roads. The owners of the farming corporation maintained a herd of 200 to 250 brood cows with calves and replacement heifers.

Appellant took 3.45 acres in fee simple upon which it erected a tower 168.5 feet high to support a pipeline suspended over White River, 20.4 acres as permanent right-of-way easement 80 feet wide for an underground pipeline, and temporary ingress, egress and “regress” for construction purposes over appellee’s private roads, the area of which totalled 26.4 acres. This pipeline was located north of and parallel to six 10-inch pipelines on the McGaughey property, which converged into one line on that farm. 15 acres of unharvested soybeans were damaged as a result of the pipeline construction.

Appellant argues that the circuit court erred in permitting appellee to introduce evidence of damages to the private roads during the period of construction and the cost of their restoration, over its objection. It asserts that error was committed in admitting testimony about the condition of the roads after appellant’s work had been completed. It contends these were special damages which had not been pleaded. We have held, in a case where a railroad constructed its tracks upon a right-of-way which it used for a short time and then removed its tracks and abandoned the right-of-way, the measure of damages to the landowner was the rental value of the land taken, in the condition it was when taken, for the time it was occupied, its depreciation in value by reason of timber cut and other acts done thereon by the railway company and the damages to the remainder of the owner’s land resulting from the building of the road across it and from flooding or overflow caused by the construction. Pine Bluff & W. Ry. Co. v. Kelly, 78 Ark. 83, 93 S. W. 562.

Whenever the contemplated construction for which a right-of-way is taken has not been completed, damages are assessed upon the presumption that it will be built with skill and proper precautions; however, if construction is complete at the date of the trial, the jury may consider the state of facts then existing in the light afforded by actual construction. The assessment of damages embraces all past, present and future damages, including those arising from faulty construction, which the location of the facility for which the right-of-way is taken may reasonably produce. Springfield & Memphis Railway Co. v. Rhea, 44 Ark. 258; Missouri & N. A. Ry. Co. v. Bratton, 92 Ark. 563, 124 S. W. 231. Such damages are not special damages which must be pleaded. In Arkansas Central Railroad Co. v. Smith, 71 Ark. 189, 71 S. W. 947, we said:

Counsel for the company say that, if the pond was left upon the premises by the improper construction of the road, this would be an element of special damages, which could not be proved in this action, for the reason that there was no allegation to that effect, and no notice to the defendant of such a claim. This contention must be overruled, for, in the first place, there is no evidence and no contention that the road was improperly constructed. The mere fact that the excavation of earth for the roadbed left a pond of water does not necessarily show that the road was improperly constructed. But even if it did, it would make no difference for the road had already been constructed at the time of the trial; and it was for the jury to consider the state of facts then existing, and, with the light afforded by the actual construction of the road, determine what the damages were.

In Arkansas Power & Light Co. v. Harper, 249 Ark. 606, 460 S. W. 2d 75, we held that any error in the admission of testimony as to timber removed from a right-of-way and windrowed along and partially beyond its outside edges as evidence of unpleaded special damages was cured by the court’s proper instruction as to the measure of the landowner’s recovery. The cdrrect instruction as to the measure of appellee’s compensation was here as in Harper, as will be presently illustrated.

Assuming, however, that the damage to the roads constituted special damages which should have been pleaded, we cannot say that there was any prejudice to appellant, because it did not plead surprise or request a continuance. When the trial court permits the introduction of evidence in face of an objection that the point at issue was not raised by the pleadings, the effect of the ruling is to treat the pleadings as amended to conform to the proof. Bonds v. Littrell, 247 Ark. 577, 446 S. W. 2d 672. So the trial court’s ruling here was equivalent to treating the issue as if it had been asserted by a pleading amended at that stage of the proceeding. The purpose of requiring special damages to be pleaded is to prevent surprise. Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S. W. 2d 571. If appellant had pleaded surprise, when its objection was overruled, it might have been entitled to a continuance, if an issue of special damages not pleaded had arisen, in order to prepare to meet it. Missouri Pacific Transportation Co. v. Williams, 194 Ark. 852, 109 S. W. 2d 924. But where no surprise is pleaded and no time requested to prepare to meet the issue, there is no error. Arkansas State Highway Commission v. Dixon, supra; Missouri Pac. Transp. Co. v. Williams, supra; Bennett v. Snyder, 147 Ark. 206, 227 S. W. 402; Ft. Smith Refrigeration & Equipment Co., Inc. v. Ferguson, 217 Ark. 457, 230 S. W. 2d 943; The Famous Store v. Lund-Mauldin Co., 149 Ark. 658, 233 S. W. 767; Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553.

Appellant’s second point for reversal relates to the giving and refusal of instructions relating to the measure of just compensation to the landowners. The circuit court gave appellant’s requested Instruction No. 4, as follows:

Under the law, McGaughey Brothers, Incorporated, is entitled to recover the fair market value of the lands acquired by Arkansas Louisiana Gas Company, determined as of the 28th day of September, 1964, together with the difference, if any, in the fair market value of the remainder of the lands immediately before and immediately after the taking.
You will, therefore, ascertain the difference between the market value of the entire tract of land of Mc-Gaughey Brothers, Incorporated, before the taking and the fair market value of the lands remaining in the tract after such taking, and that difference is the amount that McGaughey Brothers, Incorporated, is entitled to recover, and your verdict should be for McGaughey Brothers, Incorporated, in such amount.
When I use the expression “fair market value,” I mean the price that the property of McGaughey Brothers, Incorporated, would bring on the open market in a sale between a seller who is willing to sell and a buyer who is willing and able to buy after a reasonable opportunity for negotiations.

Appellant’s requested Instruction No. 5, which was refused, read:

In determining the amount of compensaition to be paid to McGaughey Brothers, Inc., by Arkansas Louisiana Gas Company, you are to consider that the use of the lands acquired by Arkansas Louisiana Gas Company is limited to those uses for which they were acquired, and that McGaughey Brothers, Inc., has the absolute right to continue using the surface of the lands acquired for the right-of-way for other purposes not inconsistent with the use of the easement by Arkansas Louisiana Gas Company.

The court gave an instruction requested by appellee after modifying it to read as follows:

(Request)
You are instructed that Arkansas Louisiana Gas Company acquires by this Condemnation Proceeding the power to make such use of the 20.4 acre right-of-way across the property of the landowners as its present and future needs require for the purpose for which the right-of way is condemned, and Arkansas Louisiana Gas Company is liable to the landowners as though the lands were taken in fee simple or absolute title.
(Modification)
As to the 3.45 acreage, McGaughey Brothers have no further right or control. As to the 20.4 acres over which the Arkansas Louisiana Gas Company now holds an easement, the McGaughey Brothers, Incorporated, have the right to such use and control of the surface of these lands so long as the uses and purposes to which they are put are not inconsistent with the Arkansas Louisiana Gas Company’s right to maintain and operate their pipeline.

Appellant first argues that the instruction given was erroneous because it made the condemnor “liable to the landowners as though the lands were taken in fee simple or absolute title,” rather than “liable for the full market value of the land taken as if it were taken in fee simple absolute.” This semantic argument is not well founded. We do not see how the jury could have been misled when the instructions are read as a whole. “As if” and “as though” are commonly accepted as conveying the same meaning. Webster’s New International Dictionary, Unabridged, Second Edition.

Appellant’s principal argument relating to these instructions, however, is based upon Arkansas Power & Light Co. v. Mayo, 244 Ark. 435, 425 S. W. 2d 531. There the court (three members dissenting) said that we could not be certain that the instructions given in a similar case did not confuse the jury as to the proper measure of the landowner’s recovery. The court here, however, followed the teaching of Mayo. It is true that the appellee’s requested instruction before its modification was quite similar in wording to the instruction requested by the landowner in Mayo, which we said might have been misleading and confusing to the jury when read with the instruction on the measure of compensation, given by the court, so that a double award might have resulted. The first paragraph of the instruction given by the court at appellant’s request is virtually identical to the instruction which the condemnor had requested in Mayo, and which we said more clearly expressed the law than the court’s instruction there, even though the. latter standing alone was correct. In view of the modification of appellee’s requested instruction and the giving of the first paragraph of appellant’s requested instruction, the two instructions read together were not likely to have confused the jury or misled it into a double award.

Appellant also alleges that the verdict is excessive because there is no substantial evidence to support it. We are unable to agree. Appellee’s six witnesses stated differences in the market value of the property before and after the taking ranging from $45,100 to $67,671.35. No useful purpose would be served by outlining all the testimony. J. C. McGaughey, an officer, director and assistant manager of appellee, testified that the value of the lands taken totalled $10,732.50. He also testified that it was necessary to move $1,000 worth of dirt in to restore the roads used by appellant and to reblade and rework them. DeWitt McGaughey, also an officer and director of appellee, who was also its manager, said that it would cost $2,000 to get the roads in proper shape.

Appellant first attacks the substantiality of the testimony of these witnesses upon the ground that none of them mentioned any comparable sales. All of them qualified as competent to «state opinions as to the market value of the lands. Having done so, they were not required to refer to comparable sales on direct examination or give the basis of their opinions. Arkansas State Highway Commission v. Hartsfield, 248 Ark. 821, 454 S. W. 2d 82; Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436. The burden was upon appellant to demonstrate that the testimony of these witnesses was without any reasonable basis. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S. W. 2d 141; Arkansas State Highway Commission v. Johns, supra. As far as we can tell from the abstract of the testimony, none of the six witnesses was asked about comparable sales or the extent to which he relied upon them. Failure to cross-examine on this subject might be taken to mean that appellant was satisfied on this subject. Arkansas State Highway Commission v. Hartsfield, supra. Appellant is in no position to contend that the testimony of any such witness was insubstantial because of his lack of knowledge of comparable sales. Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702.

Appellant states that the reasons given by some of the witnesses for the reduction in value of appellee’s remaining lands after the taking were:

(1) during floods, appellee’s cattle would have to walk around the tower erected on the land taken in fee or swim out through low land that admittedly was there before the acquisition by appellant;
(2) speculation that appellant would continue to use appellee’s private roads in the future and leave gates open, even though it is admitted that appellant has no further rights to the use of those roads;
(3) supposed devaluation of improvements, even though the acquisition by appellant takes none;
(4) the continuing right of appellant to traverse the right-of-way for maintenance purposes; (5) seepage and loss of drainage due to the pipeline, although a pipeline owned by another company is located parallel to appellant’s pipeline and was laid long before appellant’s pipeline was laid; (6) the tower located on the tract condemned in fee hinders the aerial application of chemicals on appellee’s crop, although it was admitted that there were trees in the area; and (7) the nuisance factor is that the pipeline is ‘Hhere.”

Appellant then argues that the evidence in this case brings it within the ambit of Texas Illinois Natural Gas Pipeline Company v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477, in the sense that nuisance or inconvenience to the landowner because of the presence of the pipeline constituted the principal basis for the opinions of the witnesses, so that there was no substantial basis to fully support the jury verdict. Granting, without deciding, that the value testimony of certain witnesses may have been subject to this infirmity, it is clear that the testimony of others was not shown to be. While not controlling, it is significant that appellant not only did not challenge the qualifications of any witness to express his opinion as to values, but it moved to strike the testimony of only one of the six.

Appellee’S witnesses testified that the cattle operation of McGaughey Brothers, Inc., like that of most of the neighboring farms bordering the river, was carried on along the river. From December to May, however, J. C. McGaughey testified that the cattle were pastured on about 1,500 acres of land on which soybeans were later planted. During times the river was at high stage, some of the lands were flooded.

According to J. C. McGaughey, prior to the taking, the cattle would go to the high ridge along the river as it rose, and walk to safety. The tower site, he said, covers a ridge so that it cannot be crossed by the cattle, and they would have to swim out if they were below the tower when the water rose. He said that there were four fences crossing the right-of-way designed to keep cattle out of crops. He could not accurately estimate the amount by which the improvements were devaluated. He also took into consideration the compounding of drainage problems due to the additional pipeline and inability to use a dragline for ditching across the right-of-way, problems connected with aerial application of insecticide, seepage problems due to the excavation for the pipeline and the fill and the attendant difficulty in maintaining dikes for flooding rice fields. He could not break the devaluation due to the last item into dollars and cents.

John Keel, a neighboring farm owner corroborated the existence of a drainage problem due to the impoundment of surface water by the fill over the pipeline. D. L. Buffington, a Newport real estate man, whose qualifications were admitted, placed the difference in values at $53,796.53. He considered as elements of damages to appellee’s remaining lands: interference with the cattle operation (which he said was attributable to the fact that the tower effectively cut off 200 acres of the farm in high water); the probability that emergencies might cause the condemnor to go across appellee’s farmland, the only way by which the pipeline can be reached, without permission, which would involve time and trouble in a landowner’s recovering damages; and aggravation of the drainage problems due to the additional pipeline. Buffington stated that if the cattle were cut off during high water and would not go through the water, the owners would have to take them out by boat or‘take them around by Tupelo or other such place. He was not asked to allocate a specific figure to any element.

In Arkansas State Highway Commission v. Wallace, 247 Ark. 157, 444 S. W. 2d 685, we said that a witness’ testimony to a total compensation figure could not stand against a motion to strike if it included an impermissible element of damage, unless the amount improperly included can be distinguished. But we said that the witness should be afforded an opportunity to specify the amount improperly included. We denied a challenge to value testimony both by motion to strike and by the contention that the verdict did not have substantial evidentiary support, because each witness considered at least one element proper for the jury’s consideration, but was not afforded an opportunity to specify the amount attributable to an improper element of damage. Arkansas State Highway Commission v. Woody, 248 Ark. 657, 453 S. W. 2d 45.

Both J. C. McGaughey and Buffington considered permissible elements of damage. The impoundment of surface water and impairment of drainage was a compensable element of damage. Springfield & Memphis Railway Co. v. Henry, 44 Ark. 360; Arkansas State Highway Commission v. Dixon, 247 Ark. 130, 444 S. W. 2d 571; Miller Levee District No. 2 v. Wright, 195 Ark. 295, 111 S. W. 2d 469. So was the severance damage because of the inability of the cattle to travel from one part of the land to another, Arkansas State Highway Commission v. Freyaldenhoven, 246 Ark. 688, 439 S. W. 2d 791, and decreased value of improvements. Miller Levee District No. 2 v. Wright, supra; Donaghey v. Fones Brothers Hardware Co., 171 Ark. 1056, 287 S. W. 414; Donaghey v. Lincoln, 171 Ark. 1042, 287 S. W. 407. Since these elements, and perhaps others, were properly considered, we cannot say that the testimony of these witnesses was not substantial. Neither was afforded an opportunity to state the damage attributable to any impermissible element. We cannot say that their testimony was not substantial evidence.

The judgment is affirmed.

       Increased difficulty in cultivation of a farm by reason of obstacles to use of farm machinery by electric transmission lines and towers seems to be a recognized element of damages. Illinois Iowa Power Co. v. Rhein, 369 Ill. 584, 17 N. E. 2d 582 (1938); Central Illinois Public Service Co. v. Lee, 409 Ill. 19, 98 N. E. 2d 746 (1951); Southwestern Public Service Co. v. Goodwine, 228 S. W. 2d 925 (Tex. Civ. App. 1949). Aerial application of insecticides is a common farming practice. Increased difficulty in this practice increasing cost and diminishing efficiency would seem to fall in the same category.