text:
    Ark. State Highway Comm. v. Muswick Cigar & Beverage Co.
    5-2031
    329 S. W. 2d 173
    Opinion delivered November 23, 1959.

      Dowell Anders and William H. Doriham, for appellant.

      Catlett <& Henderson, for appellee.
   Paul Ward, Associate Justice.

This is an eminent domain action brought by the State Highway Commission (hereafter called the “State”) against the Mus-wick Beverage Company, Inc. (hereafter called the “Company”) for the acquisition of the entire parcel of land and improvements thereon belonging to the Company. The jury rendered a verdict fixing the value at $212,000.00 and judgment was accordingly entered in that amount plus interest on the excess (over the court deposit of $149,300.00) from the date of the Declaration of Taking which was March 31, 1959.

On appeal to this court the State contends (a) that the judgment in its full amount is not supported by substantial evidence and (b) that interest should begin running from October 31, 1959, this being the date on which the court ordered the Company to vacate.

(a) Prom the record in this case we can find no satisfactory reason for holding that the full judgment is not supported by substantial evidence. Mr. Henry Hoffman, President and General Manager of the Company, and three other witnesses testified on behalf of appellee relative to the value of the land while two witnesses so testified on behalf of the State. The values fixed by appellee’s witnesses were respectively $250,-000.00; $200,345.00; $200,000.00; and $210,000.00. The values fixed by the appellant’s witnesses were respectively $151,700.00 and $165,000.00. The testimony of the above named witnesses was substantially as hereafter set out.

Hoffman: I am the President, General Manager, Director, and the largest stockholder of the Company which is located six blocks east of Main Street on Third Street between Perry and Rector Streets; the Company sells at wholesale cigars, cigarettes, tobacco, candy, beer and vending machines of candy and cigarettes, operating 31 pieces of automatic equipment; there are 32,002.5 square feet in the entire property which consists of six lots; the buildings cover 12,000 square feet, the covered loading dock approximately 6,000 square feet, and a gravel driveway approximately 6,000 square feet; the property is served by a Bock Island siding running the entire length of the building on the Third Street side; the General Offices which face Bector Street cover around 16,000 square feet and they are modern, air conditioned and equipped with fluorescent lights and rubber tile floors; directly behind the offices is a merchandise warehouse with rubber tile floor which contains cigars, candies, heating and air conditioning units and rest rooms and in the merchandising area are located two storage rooms, one of which must be kept at a certain temperature; there is also a beer warehouse containing 2,945 square feet, behind which is a two-story vending machine operation. The place is strategically located and is the best location in town for the type of business we operate, it has been in operation at this same location since 1921 and I have been with the Company for 36 years; we serve a trade territory of which our property is the center, this territory includes North Little Bock; the place is only five blocks from the Depot which makes it convenient for our employees; and, it is in the central fire district and has good police protection. I have walked every railroad track in town looking for another location since learning that our property was to be taken by the State, and there just isn’t any location with rail service available in our price limit. I am acquainted with the value of property in that vicinity, and the value of this land with the improvements is $250,000.00 or a little more.

James H. Larrison, who has been in the real estate business 13 or 14 years and is connected with the Walt-hour-Flake Company and has had much experience in buying, selling and appraising real estate for a large number of years, stated that he was acquainted with the subject property and that he made an examination of it recently. It was his considered opinion that the subject property would have sold for $200,345.00 on the 31st day of March 1959. In making up his mind as to the value of the property he took into consideration the nature of the business, what the land and buildings were worth, and the street pattern around the property, and the location of the railroad facilities. On cross-examination he stated that he contacted many of the property owners in that immediate area and found no property for sale at less than $3.00 a square foot with improvements or unimproved. Later, on cross-examination, he stated that he had found some property, though not comparable to the Company’s property in respect to location and surrounding facilities, which had sold for a lower price than $3.00 a square foot. After going into a detailed explanation of the value of the improvements the witness estimated the value of the land at $95,993.00 and the improvements at $104,352.00.

Frank Fulk, who lives in Little Rock and has been engaged in the real estate business for approximately 30 years testified that he was acquainted with the subject property and had made a detailed examination of the property recently. In his opinion the subject property was worth $200,000.00 on March 31, 1959. On cross-examination he explained in some detail as to how he arrived at the above figure.

C. V. Barnes, who has lived in Little Rock all of his life and operates a real estate firm stated that he was acquainted with the subject property and that in his opinion its fair market value on March 31, 1959, was $210,000.00. He explained that he had arrived at this figure by considering the three common approaches to value: sale, the income it would produce if the property were rented, and from a replacement cost approach. On cross-examination he stated that he was chairman of the Equalization Board and was familiar with the fact that the market value and the assessed value of property are not always the same.

On behalf of the State the following testimony in substance was given by Warren Baldwin and James M. East. Baldwin lives in Little Rock and has been engaged in the real estate business since 1913. He was employed by the State to appraise the subject property which he did by using the reconstruction less depreciation method. In 1957 he appraised the property at $145,000.00 but revised that estimate as of March 31, 1959, valuing the property at $151,700.00. He figured the land at $1.75 a square foot which, he thought, was the highest valuation of any land in that area at that time. He appraised the improvements at $93,081.00 and the land at $58,619.00. On cross-examination he stated that his business consisted principally of appraising and renting property but not selling property. He also admitted that it is difficult to find a location the size of the subject property in that area. Mr. East, who has been a real estate appraiser for 13 years all over Arkansas and who at sometimes represented practically all life insurance companies making loans in this state and who has also represented the F.H.A. and the Y.A. made an appraisal of the subject for the State. He stated that he had made a thorough study of the area in question for 14 months and originally appraised the land alone at $1.75 a square foot but later raised it to $2.00 a square foot, making the total value of the subject land $64,000.00. In his opinion the land and the improvements had a market value of $165,000.00 as of March 31, 1959.

In support of the State’s contention that there was no substantial evidence to support the verdict of the jury we assume that it is meant there is no substantial evidence to support the verdict and judgment in its entirety. In this connection appellant points out, and we agree, that the question of whether there is any substantial evidence is one of law and not of fact. See Missouri Pacific Transportation Company v. Bell, 197 Ark. 250, 122 S. W. 2d 958, and Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738. On the other hand, appellee calls our attention to certain rules well established by the decisions of this court, which we must apply in considering a question of this nature. One such rule is that the jurors are accorded great latitude in considering testimony relative to damages. See Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330. Another rule is that on appeal in determining the sufficiency of the evidence, we will consider the evidence in the light most favorable to appellee. See Mutual Benefit Health and Accident Association v. Basham, 191 Ark. 679, 87 S. W. 2d 583. This court recognizes that a question of this nature constitutes one of the most difficult problems with which the court is confronted on appeal. We also recognized another general rule which is applicable here in the Carder case, supra, where it was stated that a jury’s verdict . . will be set aside as excessive only when it is not supported by proof, or when it is so excessive as to indicate passion, prejudice or incorrect appreciation of the law applicable to the case”. We find nothing in the record before us to indicate passion or prejudice.

If we have a right to consider the testimony of all of the witnesses, including Mr. Hoffman, relative to the value of such property we are not satisfied to say that there is no substantial evidence to support the jury’s verdict in its entirety. Our decision might be other wise if, as appellant strenuously contends, we should not place any value upon Hoffman’s testimony. It was pointed out by appellant that Hoffman is an interested party to the outcome of this litigation and, further, that he did not testify to any particular fact within his personal knowledge but only as to his personal conclusions. We are unable to agree with this contention on the part of appellant. We think that the circumstance of Mr. Hoffman’s personal interest was something which went only to the weight his testimony should have with the jury. On this point the State was fully protected by the court by its instruction to the jury to disregard biased-opinion testimony in arriving at their verdict. We know of no rule, and none has been pointed out to us by appellant, which denies the right of an interested party in a lawsuit to give his testimony for what it is worth. Nor do we agree with appellant’s statement that Hoffman testified to no facts within his personal knowledge. As heretofore set out, he testified to many facts which have a direct bearing on the value of the subject property, and he also stated that he was acquainted with property values in that vicinity. On all these items he was, of course, subject to cross-examination.

This court has on numerous occasions affirmed the right of the owner of property (and it is pointed out that Hoffman was not the sole owner of subject property) to testify as to its value. In the case of Jonesboro, Lake City & Eastern Railroad Company v. Ashabranner, 117 Ark. 317, 174 S. W. 548, we find this statement: “Plaintiff resided on the land and was familiar with the conditions, and we think the court was justified in allowing her to state her opinion of the extent of the injury to the land and the depreciation in the value thereof”. For decisions to the same effect see Carder, supra; Stuttgart & Rice Belt R. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511; and Arkansas State Highway Commission v. O. & B., Inc., 227 Ark. 739, 103 S. W. 2d 739. This same rule appears to be generally accepted in other jurisdictions. See Provo River Water Users Assn. v. Carlson, 103 Utah 93, 103 P. 2d 777 and Telluride Power Co. v. Williams, 164 F2d 685. The jurors must have recognized the well known fact that property appraisement is not an exact science. They certainly noticed that even the State’s own witnesses were not in agreement to the extent of over $13,000.00. They also had a right to believe Hoffman knew more about the value of the location and serviceable features of the property than any of the other witnesses. It is our conclusion, therefore, that the judgment of the trial court in the full amount of $212,000.00 must be affirmed.

(b) On March 31, 1959, when the State filed its complaint in this matter, it deposited the sum of $149,-300.00 and affirmed its declaration to take all of the property belonging to appellee. It appears that the deposit has been paid to appellee and that the court ordered interest on the balance of $62,700.00 to start running as of the above date.

The record further shows that on May 21, 1959, the State filed a petition for the right of entry on and possession of subject property by October 15, 1959, and on June 12, 1959 an order was entered by the trial court granting appellee possession as of October 31, 1959, ordering appellee to vacate the property by that date. The relative statutes in this case are Ark. Stats. Section 76-532, et. seq. Section 76-538 provides for the State to file a declaration of taking and to make a deposit with the Clerk of the estimated compensation; that the State shall thereupon have the right of entry and the parties in possession shall be required to render the possession to the State upon such terms as shall he fixed hy the court. Section 76-536 provides that immediately upon the making of the deposit provided for in the above section, title to the lands shall vest in the State and that compensation for the land shall be ascertained and established by judgment. That section further provides that “. . . said judgment shall include as a part of the just compensation awarded interest at the rate of six per cent (6%) per annum on the amount finally awarded as the value of the property from the date of surrender of possession to the date of payment . . .” (Emphasis supplied).

Upon oral argument it was agreed by both sides that interest should not begin to run until October 31, 1959 —• the date when possession was surrendered, and, therefore, the judgment of the trial court should be modified to so read. This modification should not, and will not, result in taxing any part of the costs against appellee since appellant, with commendable candor, assumed full responsibility for writing the precedent for judgment which contained the error in dates.

Accordingly the judgment of the trial court is modified as above indicated and, as modified, it is affirmed.

Modified and affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Paul Ward, Associate Justice, Carleton Harris, Chief Justice,

license: Public Domain

text:
    Ark. State Highway Comm. v. Blakeley.
    5-1946.
    329 S. W. 2d 158
    Opinion delivered November 23, 1959.

      W. R. Thrasher, W. B. Brady, O. Wendell Hall, Jr., for appellant.

      Ben M. McCray, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a jury verdict in the amount of $1,000 in favor of appellees in an eminent domain action brought by appellant to condemn land for a highway overpass at Benton.

Pursuant to Act 115 of 1953 (Ark. Stat. § 76-534 et seq.) the Arkansas Highway Commission filed a declaration of taking of the land involved and made a deposit of estimated just compensation in the amount of $500. The deposit was withdrawn by appellees under the provisions of this act. The matter was tried to a jury and a verdict of $1,000 was returned in favor of appellees. The sole question raised on appeal is upon the correctness of the trial judge’s ruling denying appellant’s motion for a mistrial based on the contention that prejudicial error occurred when the amount of the deposit of estimated just compensation was mentioned by appellees’ attorney while cross-examining one of appellant’s witnesses.

Mr. Robert E. Hamilton testified on behalf of appellant as an expert on the damage to appellees as a result of the condemnation of approximately % acre of a 3-acre tract of land. On direct examination lie testified that he appraised the property for the Highway Department and estimated the value of the land before the taking at $5,500 and after the taking at $5,302, rounding off the damage at $200. It would appear from the direct examination of this witness that he had been the expert used by the Highway Department in arriving at the estimated just compensation at the time of the declaration of taking.

The incident which occurred on cross-examination of the witness by appellees’ attorney and upon which appellant relies for reversal, is as follows:

“Q. Now, I believe you were working for the highway department back in April of 1958, when the appraisal was made and five hundred dollars deposited down here with the Clerk as fair compensation, were you?
A. No, sir, I was not.”

It is a well settled rule that in order to test the credibility of a witness for purposes of impeachment a witness may be cross-examined to show prior inconsistent statements. Missouri Pac. R. R. v. Zolliecoffer, 209 Ark. 559, 191 S. W. 2d 587; Stevens v. State, 117 Ark. 64, 174 S. W. 219; Tullis v. State, 162 Ark. 116, 257 S. W. 380.

If the witness had made the first appraisal, his answer to the question asked above would have been “yes”. Then, of course, appellees’ attorney would undoubtedly have had the right to continue questioning him on this point for purposes of impeaching his testimony regarding his appraisal already admitted in evidence. But when his answer to the question was negative, and he subsequently testified that he knew nothing about the deposit, then the matter was dropped.

Affirmed.

Harris, C. J., and Holt, J., dissent; Ward, J., concurs.

Paul Ward, Associate Justice,

concurring. I concur because I think the majority opinion is subject to the interpretation (and it may hereafter be so cited) to hold the questioned testimony admissible in any event even on direct examination.

I am inclined to the view that such testimony is not admissible except for the purpose of impeachment.

The only point relied on by appellant for reversal is stated in its brief as follows: ‘ ‘ The trial court committed reversible error in overruling appellant’s motion for a new trial”. This exact point was not discussed in the majority opinion. Although I think the testimony was not admissible and not proper yet I would affirm the case because I think the error could have been cured by a cautionary instruction.

Carleton Harris, Chief Justice,

dissenting. In my opinion, this judgment should be reversed and the cause remanded because of the question propounded to Hamilton by counsel for appellees, for I am of the view that the evidence of the amount deposited by the Highway Department with its Declaration of Taking was inadmissible. This deposit is apparently made for a two-fold purpose: first, to vest the condemner with title and give him the right to immediate entrance upon terms fixed by the court, and secondly, to avoid the payment of interest on the amount deposited. The deposit actually is in the nature of an offer of compromise, and in fact, many cases are terminated without trial, i.e., the cases are concluded by a withdrawal under prejudice of the amount deposited as estimated just compensation. In 1 Orgel, Valuation Under Eminent Domain, (2d Ed. 1953), Sec. 148, p. 625-6, it is stated:

“Offers made to or by the condemner during the pendency of the condemnation proceeding have generally been held incompetent as evidence, for the reason that they represent mere attempts to compromise the suit and as such are not a true indication of market value. And this rule is applied to the amount paid into court by the government as a pre-requisite to a taking under the present federal condemnation practice. ’ ’

At an institute on real property, held in Fayetteville on October 9-11,1958, and sponsored by the University of Arkansas School of Law and the Arkansas Bar Association, an address on the subject “Buies of Evidence in Eminent Domain Cases” was given by Fred Winner, an attorney from Denver, Colorado. This address is printed in 13 Arkansas Law Beview 10 (1959). At page 15, Mr. Winner discusses “Offers Made by Condemmer”, and states:

“The few cases which have considered the admissibility of offers made by the condemner to purchase the property under condemnation have almost uniformly excluded evidence of such offers on the ground that they are privileged as an offer of compromise, and under the federal practice of filing a declaration of taking supported by a deposit in court determined in advance by the government’s appraisers, it seems settled that the amount of the deposit cannot be shown. ’ ’

Of course, we have many times held that testimony showing an offer of compromise is incompetent. See Hinton v. Brown, 174 Ark. 1025, 298 S. W. 198 (1927). From a practical standpoint, it seems most illogical to allow such evidence. One thing is certain, if the landowner is permitted to establish the amount deposited by the Highway Commission with its Declaration of Taking, there is no need for the Highway .Department to ever offer evidence that the land is of less value them the amount deposited, for, of course, the jury will consider that the Highway Department deposited the very minimum. Certainly, it is contemplated under the statute that the amount determined by the jury may be less than the amount of the deposit, for Section 76-537 provides: “If the compensation finally awarded shall be less than the amount of money so deposited and paid to the persons entitled thereto, the Court shall enter judgment in favor of the State of Arkansas and against the proper parties for the amount of the excess. ’ ’ Of course, the net result is that the Highway Department, instead of depositing a fair and just sum, will be forced to deposit as small an amount as possible, and the court will frequently be called upon to determine the proper snm for deposit. When this happens, I am of the view that the size of the deposit can he kept from the jury, for this figure fixed by the Court would have the effect of pitting the trial judge’s opinion against the condemner’s evidence, and would therefore amount to a comment upon the weight of the evidence, which is forbidden under Arkansas practice.

In addition to considering the evidence of the amount of the deposit inadmissible and prejudicial, I am also of the view that the manner in which the evidence was offered was clearly erroneous. The majority uphold this inquiry on the basis that counsel had the right to ask the question for purposes of impeachment by showing a prior inconsistent statement, but the witness had not made the appraisal. Yet this information (sum deposited) was conveyed to the jury via counsel’s question. It should have first been ascertained that the witness had made a higher appraisal before any amount was mentioned. The attorney could have commenced his interrogation with the question, “Did you not, in April, 1958, make a higher appraisal on this property?” The conclusion of the matter in my view is (1) appellee introduced evidence which was inadmissible and (2) introduced this inadmissible evidence by an inadmissible method.

Mr. Justice Holt joins in this dissent.


author: Jim Johnson, Associate Justice. George Rose Smith, J.,

text:
    Rye v. Baumann.
    5-1928
    329 S. W. 2d 161
    Opinion delivered November 23, 1959.

      Wiley W. Bean, for appellant.

      Edward B. Patterson and Williams & Gardner, for appellee.
   Jim Johnson, Associate Justice.

This is an adverse possession case concerning one acre of land situated in the Southwest corner of the SE^ NE14 of Section 22, Township 9 North, Range 22 West, Johnson County, Arkansas.

Appellee, J. J. Baumann, was in possession of the land and on attempting to move a fence Appellant, C. W. Rye, prevented him from doing so. Appellee brought this suit to quiet title in him to the one acre. The lower court found that although he did not have color of title, he and his predecessors in possession had exercised sufficient acts of ownership over the land for a period long enough to perfect title to it under Ark. Stats. 37-101.

There have been three predecessors in possession immediately prior to the Appellee involved in this litigation and their deeds are as follows:

On May 19, 1945, R. A. Stout, by warranty deed, conveyed to Edwille Birkhahn a tract of land and excepted from the conveyance the one acre in question. This deed pointed out that the one acre had previously been conveyed to L. J. Anthony. The exception in the deed set out the legal description of the one acre as follows:

“And one acre of land conveyed to L. J. Anthony described as beginning at the Southwest corner of said Southeast Quarter of the Northeast Quarter of Section Twenty-two, Township Nine North, Bange Twenty-two West, running East: on Quarter., section .line three-fourths of an acre, thence North to Dover County Eoad; thence West to Quarter section line; thence South along said line to beginning.”

On February 24-, 1953, Edwille Birkhahn conveyed to Ira Whorton a tract of land by warranty deed and also excepted from this conveyance this one acre of land.

On December 27, 1954, Ira Whorton conveyed to the Appellee a tract by warranty deed which also excepted this one acre from the conveyance. .

On June 24, 1955, L. J. Anthony conveyed to Appellant this one acre by warranty deed.

The Appellant claims that the exception in the deed to the Appellee forbids the Appellee to tack the possession of Ais predecessors in possession because, by taking the deed with the exception, he recognized a superior title. Appellant also relies on a statement made during cross-examination of Mr. Birkhahn, one of the prior possessors, that he never claimed any more than his deed called for, and that this shows a lack of intention on his part to claim adversely to the appellant. In Arkansas, if the intent of the disseisor is merely to hold to the true line, no adverse possession can arise. Ogle v. Hodge, 217 Ark. 913, 234 S. W. 2d 24; Carter v. Roberson, 214 Ark. 750, 217 S. W. 2d 846; Wilson v. Hunter, 59 Ark. 626, 28 S. W. 419.

On direct examination Mr. Birkhahn testified as follows:

“A. The whole time that I owned the land, there wasn’t a soul said anything about the house. I thought that it was mine and I still think that it was. It was mine. ’ ’

We think the remark relied on by the Appellant loses its force when considered along with the testimony of Birkhahn on direct examination, and the fact that Birkhahn put a roof on the house and windows in it and cut a twelve foot room from the back of the house and rented it out and remained in possession, without disturbance from Appellant or his predecessor, for a period of over seven years. In a situation such as this, an honest claimant upon being asked about his intent, unless previously warned, might not think to qualify his answer so as to claim what he considered his own, but would state that he claimed only his own, and on such a chance statement his claim would disappear. In arriving at the intent of the disseisor we think it is better to weigh the reasonable import of his conduct in the years preceding the litigation rather than rely on one remark made during the stress of cross-examination (which is elsewhere refuted).

Next, we must decide the effect of the exception in the deeds. Land embraced in an exception in a deed must be' described with the same certainty that is required when describing the property conveyed and failure to do so will render the exception void and the grantee takes the whole tract, including that part which was intended to be excepted. Parker v. Cherry, 209 Ark. 907, 193 S. W. 2d 127; Glasscock v. Mallory, 139 Ark. 83, 213 S. W. 8; Mooney v. Colledge, 30 Ark. 640.

The deed from Birkhahn to Whorton and the deed from Whorton to Appellee did not describe this exception but referred to the deed from Stout to Anthony.. The deed from Stout to Birkhahn contained a description and it was recorded. A description of land may be-established by reference to other instruments, such as another deed on record. Jones on Arkansas Titles, Sec. 254; Oliver v. Howie, 170 Ark. 758, 281 S. W. 17.

The rule is well established that a deed Avill not be held void for uncertainty of description if by any reasonable construction it can be made available and if the descriptive Avords themselves furnish a key for identifying the land conveyed, nothing more is required. Davis v. Burford, 197 Ark. 965, 125 S. W. 2d 789. In the present description Ave have this call: “running east on Quarter Section line three fourth acres”. It might be argued that “three fourth acres” is not a unit of lineal measure but it has been used in that respect. In the case of Fowler v. Tarbet, 45 Wash., 2d 332, 274 P. 2d 341, the court had before it a deed containing the description “2 acres in width”. It was there held that “2 acres in width” is a definite lineal measurement and would be a line approximately 417.4 feet in width. An “arpen” is a square measure of land and it has often been held to be sufficient as a lineal measure along one side thereof. Cause of the New Orleans Batture, 4 Hall’s Am. Law J. 518; Strother v. Lucas, 6 Pet. 763, 8 L. Ed. 573; United States v. Le Blanc, 12 How. 435, 13 L. Ed. 1055; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

In the present case we have a description that lends itself to no other interpretation than the surveyor intended to run East on the quarter section line one hundred fifty-six feet and six inches, which is approximately three-fourths the distance of one side of an acre. Even ignoring the probable existence of monuments on the premises to aid him, a surveyor, after running East three-fourth acre, could easily run north to the “Dover County Eoad” and measure the distance, then run west to the quarter line, then South on the quarter line to the point of beginning, and by doing so could close the description.

The exception in the deed forbids the Appellee from the claiming under color of title, so any claim of adverse possession must be founded on possession alone. Mere possession, without color of title, for the statutory period is sufficient to vest title in the disseisor. Ark. Stats. 37-101 to 37-103; Dierks Lumber & Coal Co. v. Vaughn, 131 F. Supp. 219, affirmed 221 F. 2d 695. The possession must be actual, adverse, continuous, open, notorious, exclusive and hostile and for the statutory-period.

It might be contended Appellee is estopped to claim adversely by accepting his deed with the exception in it. In the case of Guaranty Loan & Trust Co. v. Helena Imp. Dist., 148 Ark. 56, 228 S. W. 1045, this Court said:

“A rule, apparently universal in its application, seems to be that a reservation or exception in favor of a stranger to a conveyance is void or inoperative, and that a grantee in a deed containing a reservation or exception in favor of a stranger to the conveyance is not estopped to deny its efficacy.”

Birkhahn, by virtue of time in possession and the other requisites heretofore set out having been met, obtained title to this one acre through adverse possession. In 1954, Birkhahn conveyed by warranty deed to Whorton, the deed containing an exception in favor of Anthony, the immediate predecessor in paper title to Appellant. There are two questions presented by this conveyance: First, what effect does this exception have on Anthony and his grantee, the Appellant? The rule is, an exception in a deed in favor of a stranger to the deed is void and inoperative except to confirm a right which the stranger already has. Guaranty Loan & Trust Co. v. Helena Imp. Dist., supra; 26 C. J. S. Deeds, Sec. 140 (3); 39 A. L. R. 128; 16 Am. Jur., Deeds, Sec. 300, Thompson on Real Property (permanent edition) Sec. 3483. Anthony was a stranger to this deed and the exception did not confirm a right which he already had because prior to this deed Birkhahn had divested him of title.

The second question is did the giving of the deed with the exception in favor of Anthony revest title in Anthony after Birkhahn, the disseisor, had held the land for over seven years! This question was answered in Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444, where this Court said:

"If one before the statutory period has run, and before he has acquired title by adverse possession, acknowledges or recognizes the title of the owner, such recognition will show that his possession is not adverse, and the statute of limitations will not commence to run against the owner until the adverse claimant repudiates the title of the owner, but recognition after the full statutory period had elapsed will not have that effect; for where title by limitation has become vested in the adverse claimant, a mere recognition of some other title does not revest title acquired by adverse possession. ’ ’

This is conclusive against the Appellant, but there is still the question of the effect of the exception in the deed from Birkhahn to Whorton, as between the parties. The rule is, the land embraced in the exception cannot pass to the grantee. See: Thompson on Real Property (permanent Ed.) Sec. 3484; 16 Am. Jur. Deeds, Sec. 301; 39 A. L. R. 132. So it seems Whorton did not receive title to this one acre under his deed from Birkhahn and title would remain in Birkhahn. But we have Birkhahn’s testimony that he sold the land to Whorton and that Whorton went into possession of it. As between the parties to a conveyance, intention will govern if the description furnishes a sufficient key for identification. Wood v. Haye, 206 Ark. 892, 175 S. W. 2d 189.

There is sufficient testimony to support the intention of Birkhahn to transfer the property to Whorton, but the deed from Whorton to Appellee also contained the exception, and, since Whorton was not present at the trial below, we cannot say whether he intended to convey to Appellee only what his deed called for or if he intended to convey all the tract, including that part embraced in the exception. In the absence of Whorton’s testimony on this subject, the decree is reversed and remanded for further proceedings consistent with this opinion.

George Rose Smith. J., dissents.-

George Rose Smith, J.,

dissenting. I would affirm the decree on the ground that the description of the excepted one acre is void. This description can be followed by á surveyor only if an acre is taken to be a measure of distance. “Acre ’ ’ is defined by Webster’s New International Dictionary (2d Ed.) as the area of a parcel forty rods long by four rods broad, and by Bouvier’s Law Dictionary as a quantity of land containing 160 square rods, “in whatever shape.” The term is essentially a measure of area; I do not think it has a sufficiently fixed and definite meaning as a measure of distance to warrant its use in that sense in the legal description of real property.

The majority’s statement that three fourths of an acre is 156.5 feet is apparently based on the fact that a square acre, containing 43,560 square feet, would have sides approximately 208.7103 feet long. (The length is necessarily an approximation, as it is mathematically impossible to find the exact square root of 43,560.) Apart from the fact that the majority have introduced an element of uncertainty into the law of real property, where certainty is the most important requirement in the law, I have never heard the word acre used as a measure of distance and am not convinced that it has an established meaning in that sense. Who ever heard of a man walking-ten acres before breakfast? One might as well declare that a gallon is 6.14 inches, because that would be the approximate length of the side of a cubic gallon. In my opinion the . grantors in the deeds before us failed to describe the excepted acre with the certainty that the law wisely requires in matters of this kind.

       Mr. Anthony is the predecessor in paper title to the Appellant.

       There is a note on this subject in 6 Ark. Law Review page 67. ;

       There is an annotation on this subject in 162 A.L.R. 288. ’

       An arpen is defined as a measure of land of uncertain quantity, mentioned in Domesday and other old books, by some called an acre, by others a furlong, being a French measure of land containing 100 square perches of 18 feet each, or an acre. 94 C.J.S. Weights & Measures page 538.

       “Color of title is an apparent title to land founded upon a written instrument, such as a deed, levy of execution, decree of court or the like. Color of title, for the purpose of adverse possession under the statute of limitations is that which has the semblance or appearance of title.” Bouviers Law Dictionary, 3rd Ed.

       “A reservation is always of something- taken back out of that which is clearly granted; while an exception is of some part of the estate not granted at all.” 4 Kent’s Commentaries, 468 Bodcaw Lbr. Co. v. Goode, 160 Ark. 48, 254 S.W. 345, 29 ALR 578.

       “A person who is not a party to a deed is said to be a stranger to it.” Byrne’s Law Dictionary, 844.
      “The word ‘stanger’ comes almost directly from the latin ‘extra’, meaning beyond or outside, and, observing all the common and legal definitions of the word, it has only the same value in expressing thought, as its Anglo-Saxon counterpart, the word ‘outsider’ ”, 83 C.J.S. page 109.


author: Carleton Harris, Chief Justice.

text:
    Rose v. Jacobs.
    5-1957
    329 S. W. 2d 170
    Opinion delivered November 30, 1959.

      Robert J. Brown and Alonso D. Camp, for appellant.

      Paul L. Barnard and Frank J. Wills, for appellee.
   Carleton Harris, Chief Justice.

Willie B. Rose and wife, Vera Rose, held title to property at 3216 Arch Street, Little Rock, as an estate by the entirety. In 1943, Willie left and went to California. On December 8, 1949, Vera obtained a divorce in the Pulaski Chancery Court. The decree recites that “the defendant comes not in person but files herein a letter through his attorney, John D. Drake, 721 W. McArthur Blvd., Oakland 9, Calif.”, and further recites that the action is heard “upon the complaint of plaintiff, the testimony of Vera Rose, plaintiff, and Carrie B. Flagg, taken ore terms at the bar of the Court, the letter of John D. Drake, Attorney at Law, 721 West McArthur Blvd., Oakland 9, California, stating that the defendant has filed a complaint in California wherein he did not ask for any interest in the community property owned by the parties. * * *” The court dissolved the estate by the entirety and vested title absolutely in Vera Rose. On April 3, 1954, Vera died intestate, being survived by her father, J. W. Glaseo, now deceased, and a sister and brother, Zenobia Jacobs and Cleopas Glaseo. On July 21, 1954, Willie Rose brought an unlawful detainer action for said property against J. W. Glaseo, but took a non-suit on April 4, 1955. In March, 1957, Willie filed two motions in the original divorce suit, alleging that the court “had no jurisdiction to dissolve the estate by the entirety, and had no jurisdiction to decree divestment of defendant’s title as a tenant by the entirety, and no jurisdiction to vest title thereto in plaintiff”; asked that the court enter an order reopening the case; that Zenobia Glaseo Jacobs and Cleo-pas Glaseo be made parties thereto; that the decree of December 8, 1949, “be amended and modified to decree ownership in fee by right of survivorship in Willie B. Rose”; and further asked judgment for $1,875 as rent. The court’s decree, entered on August 2, 1957, recites that “said cause was submitted to the Court upon the records in this case and upon testimony of Willie Rose, Zenobia Glaseo Jacobs and others taken ore terms at the bar of the court, * * * and the Court being well and sufficiently advised as to all matters of fact and law arising herein and the premises being fully seen, doth order, adjudge and decree that the two motions of Willie B. Rose filed herein March, 1957, be and they are hereby dismissed.” On March 7, 1958, appellant filed a suit in ejectment against Zenobia Glaseo Jacobs and her husband, Willie S. Jacobs, seeking substantially the same relief as was sought by the two motions in 1957, and appellees answered, asserting the defense of adverse possession, and also the defense of res judicata, based on the court’s decree of August 2, 1957. The parties waived a jury and submitted the cause to the Circuit Court. On hearing, the Court found for appellees, and entered its judgment dismissing appellant’s complaint “as being without merit.” From such judgment comes this appeal.

We are of the opinion that this litigation is controlled by the rule of res judicata; i.e., we hold that appellant’s rights in and to this property were adjudicated by the order of the Chancery Court on August 2, 1957; it therefore becomes unnecessary to discuss other points which have been raised.

Appellant contends that this prior order is not res judicata for two reasons. First, because the original decree in 1949 was void insofar as it dissolved the estate by the entirety, and second, the defendants in the 1957 motions were not the same defendants as in the present litigation. We first consider the second point. The 1957 defendants were Zenobia Glaseo Jacobs, also a defendant in the present action, and her brother, Cleopas Glaseo. In the instant case, Glaseo is not a defendant, but instead, Willie S. Jacobs, husband of Zenobia, was made a party. While the record does not disclose the reason for making Willie Jacobs a party, it was evidently based on the fact that he was living on the property with his wife. There is no intimation that Jacobs has any rights, other than through his wife, but at any rate, this is not a defense available to appellant. Had Rose been successful in 1957, and it developed that Jacobs had an interest in the property apart from any interest claimed by his wife, then Jacobs, in the present action, might well contend that he was not barred by the 1957 decree since he was not made a party at that time. But appellant had his day in Court. The issue before the Circuit Court in the present litigation, while a suit in ejectment, actually was the same issue heard before the Chancellor in 1957, for in each instance, appellant was contending that the property belonged to him and he was entitled to possession of it. In 50 Corpus Juris Secundum, % 763, page 291, it is stated:

“Since the identity of parties is not a mere matter of form, but of substance, the rule of res judicata should not be defeated by minor differences of parties. Thus, where the issues in separate suits are the same, the' fact that the parties are not precisely identical is not necessarily fatal to the conclusive effect of the prior judgment, and a substantial identity is sufficient. * * * This rule, that there must be a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can be deprived of his property except by due process of law, a principle which in the United States has been embodied in the Federal Constitution and in the constitutions of the several states. It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff loho deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.”

More vigorously, appellant contends that the order of the court on December 8, 1949, in the original divorce decree, dissolving the estate by the entirety, and vesting the title absolutely in Yera, was a complete nullity; that since the decree of dissolution was completely void, no subsequent proceedings in the court were of any effect; in other words, that all proceedings founded on a void judgment are a nullity.

It is not necessary for us to pass on the validity of the original order of dissolution (though there is some indication that appellant may have entered his appearance), for we do not agree with appellant’s assertion that all subsequent proceedings were void. Even if the 1949 decree was void, the defense of res judicata was properly raised by virtue of the 1957 proceeding. These motions to modify the 1949 decree were heard by the court, and its decree rendered. In Restatement of the Law of Judgments, § 13, page 73, we find:

“Where an action is brought upon a judgment in a court having jurisdiction over the parties and a judgment is rendered for the plaintiff, the second judgment is not open to collateral attack on the ground that the original judgment was void.”

Under the comment, it is further stated:

“Where a court renders judgment against a defendant over whom it has no jurisdiction, and the plaintiff thereafter brings an action upon the judgment in the same State or in another State and the defendant appears in the action and sets up the invalidity of the prior judgment as a defense, and the court erroneously holds that the prior judgment was valid and gives judgment for the plaintiff, this judgment is not void and is not open to collateral attack. Where the court in the second action has jurisdiction to render a judgment, the judgment is not subject to collateral attack even if it is erroneous on the law or the facts. The decision of the court makes the matter res judicata.”

If appellant felt aggrieved, he had every right and opportunity to appeal from the decree of August 2, 1957; not having done so, he is bound by the findings and order made. Were it otherwise, appellant could, by regularly filing motions seeking to set aside the dissolution feature of the 1949 decree, continue to obtain hearings until the court agreed with his contentions.

Finding no error, the judgment is affirmed.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    International Harvester Co. v. Brownlee Brothers.
    5-1982
    329 S. W. 2d 177
    Opinion delivered November 30, 1959.

      Otvens, McHaney, Lofton $ McHaney, for appellant.

      Frierson, Walker & Snellgrove, James M. Gardner and Marcus Evrard, for appellee.
   J. Seaborn Holt, Associate Justice.

The present action was instituted by Brownlee Brothers, a partnership, and the Monette State Bank, a corporation; against appellants, International Harvester Company, a corporation; M. O. Stevenson and J. W. Birdsong, to recover damages for the unlawful conversion by appellants of two tractors, title to which tractors was claimed by appellees, and on which appellee, Monette State Bank, held a note and contract executed by Brownlee Brothers whereby said bank retained title as mortgagee. From a jury verdict in favor of appellees in the amount of $7,500.00 is this appeal.

For reversal, appellants contend that the trial court erred in refusing appellant’s request for an instructed verdict in their favor. We do not agree. The primary and controlling question, as we read the recordáis whether the title to the two tractors in question was in appellees at the time they alleged appellant’s wrongful conversion of them. “Appellees agree that title must have passed for conversion to lie.”

Briefly, the record reflects that on September 30, 1957, Van Hooser Implement Company, the authorized dealer for International Harvester Company, sold two 450 diesel tractors and other related equipment to Brownlee Brothers and that the Brownlees and Van Hooser signed a conditional sales contract covering the two tractors. This contract provided for delivery on February 1, 1958. There was evidence that Van Hooser changed the delivery date on the contract and thereafter sold it to appellee, Monette State Bank. It appears to be undenied that Van Hooser was International Harvester’s agent with the right to sell the tractors. Under the terms of the agreement, Brownlee Brothers paid for the tractors by note to Van Hooser in the amount of $6,183.21 and delivered certain used equipment to Van Hooser in payment of the balance of the purchase price. Van Hooser immediately hypothecated this note with the Monette State Bank. The record reflects that in December 1957, Brownlee Brothers discovered that the Monette State Bank had their contract and the bank learned that the tractors had not, in fact, been delivered. At this point, the Brownlees at once contacted Van Hooser and International Harvester and they learned that Van Hooser was in a bad financial condition and Harvester was trying to assist him, their dealer, to get on his feet financially and continue as their dealer. The evidence shows that the appellees, in talking with Van Hooser and International Harvester agents, received no notice whatever that International claimed title to the tractors, but on the contrary, Harvester’s dealings with appellees amounted to ratification of the sale of the tractors to appellees.

Appellant, Stevenson, Harvester’s agent, testified that he “ — Met Mr. Brownlee January 10th in the morning, discussed his purchase with Van Hooser Implement Company of two 450 diesel tractors” and no mention was made as to Harvester’s claim of title, but appellees were assured that the two tractors which they had purchased were in Jonesboro and would be delivered to them.

Appellant, Birdsong, the other Harvester agent present at the trial, did not testify as to any claim of title by Harvester or of any notice to appellees of any purported claim of title by Harvester. There was evidence that following the promise of Van Hooser and Harvester to the Brownlees that the tractors were in Jonesboro and delivery would be made at Monette, Harvester had the two Brownlee tractors transferred from a Harvester lot in Jonesboro to the Yan Hooser lot in Monette and they were parked outside for the Brownlees to pick up. The evidence reflects that Harvester made no claim to the tractors but on the contrary, stated that they were the Brownlee tractors. Sometime during the night following the return of the tractors to the Yan Hooser lot, Harvester ordered the two tractors to be repossessed and placed on a Harvester lot in another city and this was done by International’s agents and employees, depriving the Brownlees of their possession and use.

As indicated, the taking possession of the tractors by International Harvester is admitted. It is also undisputed that the Brownlees paid for the tractors, delivered to them by the dealer, Yan Hooser and Harvester when they were brought from Jonesboro and placed on the lot in Monette, with the request that the tires be changed which was being done at the time of the conversion by Harvester. “It seems to be well recognized under the modern decisions at least, that where the sale is of specific identified property the title may pass, if such is the intention of the parties, even though something remains to be done by the seller to put the property in its final condition* * American Jurisprudence 46, Sec. 420, Page 590, Sales. The tractors were in a deliverable state and the tire changes did not alter passage of title to the Brownlees.

Under the provisions of the Uniform Sales Act, Sec. 68-1418 Ark. Stats. 1947, Ann., it is provided: “68-1418. PROPERTY IN SPECIFIC GOODS PASSES WHEN PARTIES SO INTENDED. — (1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

“ (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case. (Acts 1941, No. 428, Sec. 18, p. 1231.)”

In the circumstances and on the record presented, the question whether title was in International Harvester, its dealer, Van Hooser, or appellees, was a question of intent and as such, a jury question. The court, by proper instruction about which no complaint is made, submitted this question to the jury and we hold that the verdict of the jury, which was, in effect, a finding that title to the tractors was in appellees and that such was the intention of the parties, was supported by substantial evidence.

Accordingly, we affirm.


author: Ed. F. McFaddin, Associate Justice.

text:
    Smith v. West Lake Quarry & Material Co.
    5-1958
    329 S. W. 2d 167
    Opinion delivered November 30, 1959.

      Bryan S Fitshugh, for appellant.

      Shaw, Jones & Shaw, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case; and the sole question is whether the Commission was correct in finding that appellant, Smith, was an independent contractor and not an employee of the appellee, West Lake Quarry & Material Company, Inc. (hereinafter called “West Lake”).

West Lake was furnishing crushed rock to a prime contractor for use on a river hank stabilization project, approved and supervised by the United States Corps of Engineers. Appellant Smith furnished his own truck, gas, oil, and maintenance, and was paid 55^ per ton for hauling the crushed rock from the quarry to the river hank. Smith alone determined when he started to work and stopped, how many loads he hauled, and the regularity of the hauling. West Lake only paid him for the rock hauled. While Smith was so engaged, his truck failed to operate as he desired, and he undertook to make repairs. The truck rolled back and seriously injured Smith’s right arm, and he filed claim against West Lake under the Workmen’s Compensation Act. West Lake resisted the claim, contending that Smith was an independent contractor and not an employee. The Commission denied compensation, the Circuit Court affirmed, and Smith has appealed, urging here four points, being:

I. The undisputed proof shows that Smith was an employee and not an independent contractor at the time he was injured.

II. West Lake Quarry construed its contract with Smith as being one of an employer-employee relationship and it is bound by this construction.

III. By deducting withholding and social security taxes and paying unemployment compensation on behalf of Smith, West Lake Quarry is estopped to deny this claim of Smith as an employee.

IV. The denial of the award by the Workmen’s Compensation Commission is based on hearsay evidence and this Court should remand this case with direction to the Commission to enter an award to the Appellant.

We consider these points together. The determination of the relationship — that is, whether independent contractor or employee — is ordinarily a question to be determined by the Commission from the facts elicited; but in the case at bar appellant claims that there were certain salient facts which required the Commission to reach the conclusion that Smith was an employee, rather than an independent contractor. These facts were that West Lake: (a) withheld Federal income tax on Smith’s pay and made remittance to the Government; (b) made social security deductions from Smith’s pay and paid the Government as though Smith were an employee; and also (c) paid unemployment tax on Smith as an employee. Smith contends that these three factors conclusively establish that West Lake treated him as an employee, that West Lake was estopped to deny such relationship, and that the Commission erred in failing to hold that Smith was an employee.

West Lake’s explanation of these three tax matters was: that the rock was being furnished for use in a river bank stabilization project approved and supervised by the United States Corps of Engineers; that the prime contractor and West Lake both understood that the Federal law, known as the Davis-Bacon Act (U. S. C. A. Title 40 § 276(a) et seq.), required that all persons working, in any way in connection with the project, receive minimum pay of $1.05 per hour for all time worked; and that West Lake figured the number of hours that Smith worked at $1.05 per hour and on that basis made the withholding tax reports and paid the social security and unemployment taxes. But West Lake contended that with these bookkeeping matters completed, West Lake then paid Smith any and all additional amounts to equal his contract price of 55;¿ per ton for all crushed rock he hauled; and that each load was weighed, and Smith kept the record of his weight loads.

The Workmen’s Compensation Commission stated in its opinion:

“The reason for withholding taxes has been satisfactorily explained to this Commission in the testimony adduced on behalf of respondents. That testimony is to the effect, that the mode of payment was dictated by the IT. S. Corps of Engineers in accordance with the Davis-Bacon Act. We thus believe that the Beferee correctly found claimant herein to be an independent contractor, . . . ”

Appellant insists that the withholding, social security, and unemployment tax matters are, in themselves, conclusive evidence that Smith was an employee of West Lake, and that AVest Lake is estopped to claim otherwise. Appellant cites these cases to sustain his contention: Carter v. Hodges, 175 Tenn. 96, 132 S. W. 2d 211; Employers’ Liability Assurance Corp. v. Warren, 172 Tenn. 403, 112 S. W. 2d 837; Nash v. Meguschar (Ind. App.), 89 N. E. 2d 227; and Scott v. Rhyan, 78 Ariz., 80, 275 P. 2d 891. A study of these cases convinces us that they do not hold that such tax deductions conclusively establish an employer-employee relationship, irrespective of all other evidence. These cases use the fact of tax deductions or insurance payments to corroborate other evidence as to the employer-employee relationship. In short, the tax deductions or the insurance payments are circumstances to be considered along with all the other circumstances in the case in looking at the relationship.

In Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S. W. 2d 341, we said that the payment of workmen’s compensation insurance on the worker would be “relevant as a circumstance ’ ’ in determining whether the relationship was employee or independent contractor. In Farrell-Cooper Lbr. Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 445, we said: “Evidence that an employer pays workmen’s compensation or liability insurance on a workman is a circumstance to be considered m determining whether said workman is an employee and thus subject to the employer’s right and power to control. (Emphasis supplied.) All the authorities that we have been able to find support the statement contained in Larson on Workmen’s Compensation Law, § 46.40, that such tax deductions and/or insurance payments are “a factor to be given weight”, but are not determinative or conclusive on the issue. To the same effect, see 99 C. J. S. p. 351, “Workmen’s Compensation” § 104.

The Commission found that the withholding and the tax payments were satisfactorily explained in the case at bar, and we cannot say that there is an absence of substantial evidence to support such finding. With the withholding and the tax payments as only “circumstances to he considered”, it is clear that a fact question was made as to whether Smith was an independent contractor or an employee; and the Commission’s decision on that fact question has ample evidence to sustain it within the purview of our cases, some of which are: Parker Stave Co. v. Hines, 209 Ark. 438, 190 S. W. 2d 620; Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896; Farrell-Cooper Lbr. Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 445; and Massey v. Poteau Trucking Co., 221 Ark. 589, 254 S. W. 2d 959.

Affirmed.

       Smith testified:
      “Q. But your deal was fifty-five cents a ton?
      A. That’s right.
      Q. Now this matter of showing on your payroll record so much an hour for regular time work and so much an hour for overtime work, that was not in addition to your fifty-five cents a ton?
      A. No.
      Q. In other words, all you made was fifty-five cents a ton?
      A. That’s right.
      Q. And the way they would pay you is, they would show so many hours work as regular time and overtime and then whatever that lacked of making up fifty-five cents a ton on your tonnage haul, they would pay you the difference, so that you actually made fifty-five cents a ton?
      A. Yes, sir . . .
      Q. For the fifty-five cents a ton you furnished your own truck and kept it up?
      A. Yes.”

       This Act provides in part: “. . . every contract . . . shall contain a stipulation that the contractor or his subcontractor shall pay all mechanics and laborers . . . the full amounts accrued at the time of payment, computed at wage rates not less than those stated in the advertised specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics ...”

         The Referee stated in his opinion: “The status of the various pay checks, withholding and social security payments by the respondent employer — has been explained satisfactorily to this Referee, and it appears that same was figured in this matter for the purpose of satisfying the Corps of Engineers and to keep some semblance of records, but that the sole basis of pay was 55^ per ton for rock hauled.”

         In 85 A.L.R. p. 784 there is an annotation entitled: “Insurance as bearing on question whether one is an employee or independent contractor”. We do not have a statute in Arkansas similar to the Oklahoma statute considered in National Bank of Tulsa Bldg. v. Goldsmith, 226 P. 2d 916.

       In the supplement to the text the following additional cases are cited: Peck v. Adams, 219 Ark. 540, 243 S. W. 2d 562; Bituminous Cas. Corp. v. Johnson (Ky.) 259 S. W. 2d 448; Wilson v. Swing (Ida.), 230 P. 2d 995; and Commission of Finance v. Industrial Commission (Utah), 239 P. 2d 185.


author: George Rose Smith, J.

text:
    Mitchell v. Owen.
    5-1976
    329 S. W. 2d 180
    Opinion delivered November 30, 1959.

      Terral, Rawlings & Bosivell, for appellant.

      Bridges S Young, for appellee.
   George Rose Smith, J.

This is an action by the appellant to recover $126.44 as the damage sustained when her ear was struck by the appellee Owen’s truck at a street intersection in Pine Bluff. The truck was being driven by Owen’s brother-in-law, Reynolds, who made no defense to the suit. The complaint alleges that the collision was caused by Reynolds’ intoxication and that Owen was negligent in entrusting the vehicle to Reynolds with knowledge of his addiction to alcohol. The trial court, sitting without a jury, found that the proof did not show negligence on the part of Owen. The appellant’s sole contention is that the court erred in reaching this conclusion.

It is stipulated that the only relevant testimony is that of Owen. For some months before the accident Reynolds had been living with his sister and brother-in-law on the Owens’ farm, about twenty-one miles from Pine Bluff. Owen says that Reynolds drinks to excess but is not exactly an alcoholic; he knows when to drink and when not to. The truck was a farm vehicle, which Reynolds had never used without permission. On the day of the collision Owen and his wife went to New Orleans for the week end, leaving Reynolds at the farm and leaving the keys in the truck. Owen instructed Reynolds not to leave the farm and not to be drinking while the Owens were away. Owen did not believe that Reynolds would take the truck, as “he never bothered anything at any time without permission,” but that night Reynolds did take the truck, drove to Pine Bluff apparently to see his children, and was involved in the collision with Mrs. Mitchell’s car. Upon this proof a jury of fair-minded men would not be compelled to conclude that Owen was negligent; hence there was a question of fact upon which the trial court’s finding is decisive.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Payne v. Box.
    5-1968
    329 S. W. 2d 181
    Opinion, delivered November 30, 1959.

      Van Johnson, for appellant.

      Robinson & Robinson, for appellee.
   Paul Ward, Associate Justice.

The questions on this appeal are whether oral evidence is admissible and whether it is sufficient to establish a resulting trust. Appellant, A. Gr. Payne, filed a complaint in the Circuit Court against appellees, Homer B. Box and Pearl Box, his wife, to obtain possession of Lots 9, 10, 11, and 12, Block 8, of Norwood Subdivision to the town of Stamps, alleging that he was the holder of the record title to said property. Appellees answered and alleged in substance that the land belonged to them for the reason that appellant held said property in trust for them. They asked that appellant’s complaint be dismissed or in the alternative they asked that the cause of action be transferred to a court of equity. Pursuant to the above, the Circuit Court, finding that appellees were relying on equitable grounds for relief, transferred the matter to Chancery Court.

A brief factual statement will help to understand the issues hereafter discussed. Prior to the year 1950 Charlie Siebert was the owner of subject property. In that year he died testate leaving the property to certain relatives. Appellees were living on said property at the time of the death of Siebert. On or about the 21st day of February 1950 appellees apparently entered into negotiations with Siebert’s devisees to purchase the property for the sum of $2,000.00. It seems, however, that appellees did not have the money to pay the purchase price but were going to borrow it from some source, possibly a bank. It was appellees’ contention that at this point appellant offered to lend them the $2,000.00 with which to purchase the property. It was appellees’ further contention that it was understood that, in order to secure appellant, the property was to be deeded to appellant and he was to hold same in trust for them and convey it to them when they had paid the purchase price. It is further contended by appellees that they had paid the purchase price and were now entitled to have appellant execute a deed to them conveying the subject property.

After a full hearing the Chancery Court sustained appellees’ contentions, dismissing appellant’s complaint, divesting title to subject property out of appellant and vesting title thereto in appellees upon payment of 6% interest on the $2,000.00 and upon payment of taxes and certain insurance premiums theretofore paid by appellant.

Upon appeal appellant seeks a reversal on two grounds, namely: One, recovery of appellees is barred by the Statute of Frauds; and, Two, the Court erred in holding that the evidence was sufficiently clear and convincing to establish a resulting trust.

One. Conceding for the present that appellees’ evidence is sufficiently clear and convincing to establish a resulting trust, appellant must fail on his contention that the action is barred by the Statute of Frauds under the authority of Crain v. Keenan, et al, 218 Ark. 375, 236 S. W. 2d 731. In the cited case appellant sought to enforce an oral contract by which appellees agreed to buy a farm for $15,000.00, taking title in their own names and conveying said title to appellant upon payment of the purchase price. Appellees bought the farm but insisted that the purchase was for their own benefit and they only rented the land to Crain who had moved on it. The trial court held that such contract, even if made, would be unenforceable under the Statute of Frauds and appellant’s case was dismissed. Upon appeal the cause was reversed upon that point. This court stated: “The Chancellor was in error in thinking the contract to be within the statute of frauds. By its terms the statute does not apply to resulting trusts. Ark. Stats. 1947, Section 38-107. Although the complaint treats the transaction as an equitable mortgage the proof establishes a resulting trust”. The court then quoted with approval from Rest., Trusts, Section 448 as follows: “ ‘Where a transfer of property is made to one person and the purchase price is advanced by him as a loan to another, a resulting trust arises in favor of the latter, but the transferee can hold the property as security for the loan . . . In the situation stated in this Section the result is the same as though the transferee first lent the amount of the purchase price to the borrower and the borrower then paid the amount so borrowed to the vendor and the conveyance was then made by the vendor to the lender ’ ’ ’.

Applying the rule above stated to the brief statement of facts in the case under consideration the situation is the same as if appellees had borrowed the $2,000.00 from appellant and then gave him back the money to go buy the subject property in his name with the understanding that title to the property would be conveyed to appellees when appellant was reimbursed for the borrowed money.

Two. The next question for decision is whether the evidence is sufficiently clear and convincing in this case to establish a resulting trust. The trial judge found that it was, and, after a careful survey of the records and the facts and circumstances deducible therefrom, we are unable to say that the trial court was wrong. It is, therefore, in order to set out in some detail the material portions of the testimony.

Appellant, a resident of Lafayette County, 55 years of age, and engaged in the house moving business, testified that he purchased the subject property from the wife and heirs (or devisees) of Charley Siebert, deceased, and paid therefor the sum of $2,000.00; that he rented the subject property for $25.00 per month to appellees who were living on the property at the time he bought it; that since that time he has paid all the taxes and insurance on the property. On cross-examination he stated that the grantors talked to his brother about selling the property; ■ that he met them at the lawyer’s office, that they wanted to get rid of the property and he agreed to buy it for $2,000.00; that after they made the deal they met in Mr. Boulware’s office and closed the deal, and he made the deed out to me; he didn’t remember whether he saw appellees prior to making the purchase but he did talk to them after he had bought it; that he didn’t know how much appellees had paid him in the way of rent but appellees never told him that they wanted to settle up and have him execute a deed; and, that he never knew that appellees claimed any interest until this suit was brought.

Appellee, Homer Box, testified that he was renting the property from Siebert at the time of his death — that the building was what he called a garage or living quarters ; that after Mr. Siebert was buried he and his wife were talking to the heirs who wanted to sell the property but didn’t know what it was worth; that at their suggestion Judge LeCroy came over from El Dorado and then he made them an offer of $2,000.00 which the judge thought was a fair price; that the heirs went off and later told me that they had accepted the offer; that appellant was there at the time; that he told the heirs he had to go to the bank to make arrangements for the money, but appellant stated that he would lend him the money; that appellant got in his car with the heirs and Mr. Adams and went to town and when they returned appellant stated that he wanted to get the deed in his name, stating that when the money was paid back to him he would make us (appellees) a deed which was all right with us; that appellant (or his brother) said that they would not try to beat us, that we had been friends, and that if we paid them the $2,000.00 they would not give us any trouble; appellant stated we could pay the money back any way we wanted to and also stated that if I got short on work they had a lot of trucks and would let me work some of it out in the shop; and that when they had paid the $2,000.00 back he went to see appellant and he said we had been renting the property and that he was not going to make us a deed. On cross-examination Box stated that when appellant agreed to lend him the $2,000.00 to buy the property he mentioned the matter of taxes to appellant and he said that he would go ahead and take care of that item. Box identified 66 out of 79 receipts which he had received for monthly payments and they were marked “for house rent”; that he mentioned it to appellant several times and told him he didn’t like it, and that appellant said “Well, just give us $2,000.00 worth of them”; that after the heirs, Mr. Adams and appellant returned from Mr. Boulware’s office they asked me if it was all right to put the deed in appellant’s name; that from 1950 to 1956 the witness did not have a chance to say anything to appellant about it and that the first time he talked to him about it was when he had paid the $2,000.00 back; that he told appellant he had paid $2,000.00 and wanted a deed and appellant refused to give it to him.

Appellee, Mrs. Homer Box, testified to substantially the same things her husband, Mr. Box, had testified to. She stated that appellant said he would let them have the $2,000.00 to buy the property and would not require any interest; that her husband said he was willing to pay interest but appellant stated that he would let them pay it by the month like rent; that she and her husband made all the payments and never missed any payment until the full $2,000.00 was paid. Richard Wootin who lives in Stamps, Arkansas, and knew Siebert during his lifetime, stated that he was acquainted with the subject property and that he knew appellant; that he had heard the property was for sale and went up to where appellees lived; that when he got there the heirs stated that they had sold the property to Mr. Box; that appellant was there and stated that he was going to finance Mr. Box in buying it; that this all happened there under the shed in the shop; that appellant was present when it was announced that the property was going to he sold to Mr. Box and lie (appellant) voluntarily stated that he was going to help Box buy it. Ira Phillips who lives at Stamps and who knew all of the parties concerned, stated that he was present when the trade was made; that the heirs came in and told Mr. Box they had decided to let him have the property and that appellant was there; that Mr. Box said he would have to go to the bank and make arrangements for the $2,000.00 but appellant stated that it would not be necessary because he would let them have the $2,000.00, and; that appellant went away and later came back and stated that they were furnishing the money and asked about having the deed made out in his (appellant’s) name. Marion May who apparently knew all of the parties concerned, stated that he knew appellees had bought the property and that he heard Homer Box say he would have to go to the bank to make arrangements to borrow the money; that when Mr. Box made that statement appellant said “No, I have got the money, let me pay it for you” and Homer Box said “O. K.”

Prank Niedermeyer, Jr., an heir of Charlie Siebert, and one of the grantors in the deed to appellant gave a deposition in which he stated in substance: We sold the land on February 21,1959 and Mr. and Mrs. Box offered us $2,000.00 which we agreed to accept; appellant was furnishing the money and appellees were to pay him back by the month; we intended to sell and did sell that property to appellees but we made the deed to appellant thinking we were helping to carry out an agreement whereby appellant would later deed the property to appellees when it was paid for; and, we never made any trade with appellant. Substantially the same testimony was given in a deposition made by Yerna C. Niedermeyer who was also one of the grantors in the deed. These depositions were allowed to be introduced over the objection of appellant. Said objections were that it was an attempt to vary the terms of the written contract and that said testimony was barred by the statute of frauds. For the reasons set out in Paragraph “One” we hold that the testimony was competent.

It is apparent from the above that appellant relied almost entirely upon the statute of frauds for a defense, because, he made no attempt to deny the testimony given by appellees and their witnesses. Except for the statement of appellant that he purchased the property for himself there is no substantial testimony to contradict appellees’ version of the transaction. In view of these facts and circumstances we think the findings of the Chancellor in favor of the appellees must be sustained and we cannot say such testimony and facts are not clear and convincing.

It follows, therefore, that the decree of the trial court must be, and it is hereby, affirmed.

Affirmed.


author: Sam: Robinson, Associate Justice.

text:
    Ark. State Highway Comm. v. Ark. Power & Light Co.
    5-1939
    330 S. W. 2d 77
    Opinion delivered November 30, 1959.
    [Rehearing denied January 11, 1960]

      W. R. Thrasher, Dowell Anders, W. B. Brady, for appellant.

      House, Holmes, Butter <& Jewell, for appellee.
   Sam: Robinson, Associate Justice.

The appellant, Arkansas State Highway Commission, hereinafter called the Commission, ordered the Arkansas Power & Light Company, hereinafter called the Power Company, to remove its poles and wires from certain property which the Commission intends to use as the right of way for the new El Dorado by-pass, a controlled access highway. The Power Company questioned the authority Of the Commission to summarily order such removal, and this suit for a declaratory judgment was filed by the Commission. From a judgment in favor of the Power Company the Commission has appealed. The sole issue here is whether the Commission has authority by virtue of the police power of the State to take from the Power Company, without compensation for damages sustained, its property rights, if any, in the use of the right of way of the streets and roads to maintain its poles and wires.

The Power Company concedes that the Commission has the right to cause the utility facilities to be removed, but contends that such action in the existing circumstances must be by eminent domain proceedings and that the Power Company is entitled to compensation for damages sustained. The facilities in question, consisting principally of poles and wires, are located on property that may be divided into three categories: (1) Facilities of the Power Company located on the public streets of El Dorado; (2) facilities located on property which has been dedicated as public streets in additions outside the city limits; and (3) facilities located on county roads.

Conceding, without deciding, that the Commission would have authority to exercise the police power in some circumstances, we do not believe that the situation in the case at bar calls for the exercise of such power. The issues were submitted on a stipulation of facts, wherein it is agreed that the Power Company had the lawful right to locate, operate and maintain its existing poles in the city of El Dorado and urban areas thereof on street rights of way, as authorized by the franchise from the city of El Dorado, and also that the Power Company had acquired an easement on the right of way of the county roads, either by purchase from the adjoining property owners or by prescription insofar as such owners are concerned.

But even though the Power Company has the right to maintain its poles on the rights of way, it does not mean that the company could not be compelled to move its facilities so as not to unnecessarily interfere with use of the streets. The franchise specifically provides: That “the grantee [Power Company] shall, in the construction and operation of said electric light and power plant or plants, locate all poles on the curb lines of streets, alleys, avenues, sidewalks and public grounds of said City, and furnish sufficient power to operate all street lights and all commercial electrical lights and power continually”, and, further, that “The grantee [Power Company] is hereby granted the right-of-way in, through. Tinder and over all streets, avenues, alleys, side-walks, and public grounds of said City for the purpose of erecting, ■constructing, operating and maintaining its electric light and power plant or plants; the right to trim all trees in said streets, alleys, sidewalks and public places and grounds that may come in contact with its wires, and of erecting and maintaining poles, wires, fixtures and all other attachments and equipments necessary for the carrying of electricity in and through the city, provided the streets, alleys, avenues and sidewalks shall not be unnecessarily and unreasonably impaired or obstructed thereby.” Hence, if the city or county should change the right of way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to “unnecessarily and unreasonably impair or obstruct” the street. But here it is not a question of requiring the Power Company to relocate its poles so as not to unnecessarily or unreasonably impair or obstruct the traffic. The Commission has demanded that the Company remove its facilities entirely from the right of way.

The franchise gave to the Power Company certain property rights. The ordinance granting the franchise provides that it constitutes a contract between the city and the Power Company, and the Power Company is obligated to furnish to certain public buildings in El Dorado electricity free of charge, and for 25 years after the granting of the franchise the Power Company must supply electricity to the citizens of the city at the price named in the contract.

It was further agreed “between the city and the grantee that this franchise and contract is granted by the city upon the conditions that the grantee shall carry out the requirements herein imposed and shall complete the installation of all street lights within six (6) months from date of notice . . .”.

There is no question but that under the franchise the Company owns a property right. In 18 Am. Jur. 790, it is said: “Contract rights and franchises — When contract rights are taken for the public use, there is a constitutional right to compensation in the same manner as when other property rights are taken. A franchise which constitutes a binding contract is property in the constitutional sense. The fact that the franchise relates to the public use does not entitle the state to abrogate it without compensation, for a franchise is the private property of even a public service corporation.”

“A right of way upon a public street, whether granted by act of the Legislature or ordinance of a city council, is an easement, and as such is a property right and entitled to all the constitutional protection afforded other property and contracts.” Southern Bell T. & T. Co. v. City of Mobile, 162 F. 523, 528, 174 F. 1020.

The Court said in Natural Gas & Fuel Co. v. Norphlet Gas & Water Co., 173 Ark. 174, 294 S. W. 52: “Again in City of Louisville v. Cumberland Tel. & Tel. Co., 224 U. S. 649, it was held that the right to use the streets in a city for the purpose of a public utility ‘has been called by various names — incorporeal hereditament, an interest in land, an easement, a right-of-way — but, howsoever designated, it is property’. This principle has been recognized and applied by this court in Clear Greek Oil & Gas Co. v. Ft. Smith Spelter Co., 148 Ark. 260.”

The police power should not be indiscriminately or unnecessarily used. In Beaty v. Humphrey, 195 Ark. 1008, 115 S. W. 2d 559, this Court said: “The police power of the State is one founded in public necessity, and this necessity must exist in order to justify its exercise.” To the same effect is City of Little Rock v. Smith, 204 Ark. 692, 163 S. W. 2d 705.

Here it does not appear that it is necessary for the Commission to exercise the police power to take from the Power Company whatever rights it has in maintaining its poles and wires on property the Commission desires to use in constructing the by-pass. The controlled access road is being constructed on authority of Act 383 of 1953 (Ark. Stat. § 76-2202 — 76-2207, inch). Appellant says in its brief that these sections of the statute ‘ ‘ specifically authorize the course of action taken by the Highway Commission in this instance.” We do not find that the statutes cited authorize the course of action employed by the Commission in attempting to take from the Power Company by the exercise of police power whatever rights it has in the use of the streets to maintain its facilities. In fact, just the contrary appears. Section 76-2205 provides that the highway authorities “may acquire private or public property and property rights for controlled access facilities and service roads, including rights of access, air, view and light, by gift, devise, purchase or condemnation. . . .” Thus it will be seen that the statute gives to the highway authorities the power to acquire private or public property and property rights by gift, devise, purchase or condemnation, but the statute does not authorize the taking of property rights by the exercise of police power, and it appears from the following section, § 76-2206, that court proceedings are contemplated in the taking of property or property rights.

Appellant argues that the Power Company has no rights in the use of the streets and roads to maintain its poles and wires that entitle the Company to compensation in the event it is deprived by the State of such rights. But in the same breath appellant says: “Paragraph 10 of the stipulation of facts covers defendant’s facilities located on county road right of way. Since the use of such right of way constitutes an additional servitude on the fee where the road right of way is an easement and not a fee, the utility must compensate the fee holder or is liable for damages, if only nominal. Cathey v. Ark. Power & Light Co., 193 Ark. 92, 97 S. W. 2d 624. ... To protect itself in this situation, for county roads are established by easement, defendant Power & Light Company has secured right of way easements or permits (presumably by purchase) or had its poles placed in the right of way so long that by prescription the fee holders’ claim of damage would be barred. , . . Paragraph 11 of the stipulation of facts concerns facilities located within the right of way of platted streets in rural areas. Again, as in the case of facilities on county road right of way, the location of poles is an additional servitude upon the subservient fee. ’ ’ Accordingly it appears that insofar as the streets in the platted additions outside the city and the county roads are concerned, the Power Company obtained nothing from the city, county or state. According to the provisions of Ark. Stat. § 35-301, the city, county or state could not prevent the Power Company from using the streets and roads provided satisfactory arrangements were made with the fee owner, which was done in this case. All its rights in regard to such streets and roads were obtained from the fee owner. It is not shown just what such easements or permits cost the Power Company, but big or little, how can it be said that the Company has no property right in an easement it has bought and paid for or obtained by prescription from the owner of the fee. The Cathey case holds that the use of a highway right of way by a utility is an additional servitude for which the fee owner is entitled to compensation. The easement of the Power Company on such rights of way may be abolished by the Commission, but the taking of such easement must be by eminent domain proceedings and just compensation allowed, and not by the exercise of the police power with no compensation.

Now, as to the rights of the Power Company to use the streets within the city limits to maintain its poles and wires. The Company has poles on the right of way of the streets by virtue of a contract with the city. Under the terms of this contract the Power Company obligated itself to spend thousands of dollars in placing the poles and wires in the city. There is no contention that the Company has not fulfilled its obligation to the letter. In fact, the Company would be liable for breach of contract if it had failed to comply with the conditions of the agreement. In these circumstances could the city officials change their minds the day after the Power Company had completed the installation of its equipment and in the exercise of the police power inform the Company that it must get its equipment ont of the city? The answer is “No”. The Power Company, under the terms of the contract, had acquired a property right, and if it was to he deprived of such right the proceeding would have to be by eminent domain. We fail to see how the State would have any more authority to exercise the police power than would the city. Appellant has cited several cases that appear to be contrary to the view herein expressed, but in the case at bar it does not appear to be necessary that the Commission use the police power to eject the Power Company from the right of way of the by-pass, and as heretofore pointed out this Court has held that public necessity must exist to justify the use of the police power.

We do not reach any question as to the amount or measure of damages, because the parties have agreed by stipulation on the amount of damages sustained by the Power Company.

Affirmed.

Paul Ward, Associate Justice, dissenting. When the Commission undertook to build the By-pass along or across certain streets in the City of El Dorado, along certain streets in a dedicated town outside the limits of El Dorado, and along a public road, it became necessary to have certain poles belonging to the company removed from the affected streets and roads. It is conceded that the company would have the right to replace its poles at adjacent locations without having to pay anything for the privilege of doing so. The only question involved here is whether the Company or the Commission should pay the ■cost of relocating the poles.

It appears to me that the majority opinion completely ■evades this pivotal question. I make this statement because all of the authorities relied upon by the majority go only to the proposition that a utility Company, having once obtained a franchise and having located its poles within a city, town or public road, has acquired such a property right that it cannot be taken away without compensation. In other words, the majority seem to be laboring under the misapprehension that the Commission (which here is the same as the State of Arkansas) is attempting to lake away entirety the company’s right to do business under its franchise. Later I will refer to the authorities relied upon by the majority.

As stated before, the decisive question is whether the company or the Commission shall pay for removing the poles to another location or locations which will be furnished to it without cost. The authorities holding that the company must pay for the relocation of its poles at its own expense are numerous and unanimous to that effect. See: Rockland Water Co. v. City of Rockland, 83 Me. 267, 22 A., 166; Belfast Water Co. v. City of Belfast, 92 Me. 52, 42 A., 235; Brunswick Gas Light Co. v. Brunswick Village Corporation, 92 Me. 493, 43 A., 104; Readfield Telephone and Telegraph Co. v. Cyr, 95 Maine 287, 49 A. 1047; First National Bank of Boston v. Maine Turnpike Authority, 153 Me. 131, 136 A. 2d 699; Lynn and Boston Railroad, Company v. Boston and Lowell Railroad Corporation, 114 Mass. 88; New Orleans Gas Light Co. v. Drainage Commission of Neto Orleans, 197 U. S. 543; Scranton Gas & Water Co. v. Scranton City, 214 Pa. 586, 64 A. 84; New Orleans Public, Service v. City of New Orleans, 281 U. S. 682, 687; New York City Tunnel Authority v. Consolidated Edison Company of New York, Inc., 295 N. Y. 467, 68 N. E. 2d 445; Chicago, Burlington & Q.R.R. Co. v. City of Chicago, 166 U. S. 226.

The clear and emphatic holdings of the above authorities are to this effect: While the franchise or privilege of a utility, once having made its installations, to do business in a city, town or along a public road is a property right -which cannot be taken away without compensation, yet such utility acquires no such property right to erect and maintain its installations or poles at any particular place; such utility must remove its installations at its own expense when the public convenience and welfare demands such removal, and; the State, representing all the people, under the exercise of its police power can require said installations to be removed to other locations at the ■expense of the utility. A careful reading of the several authorities cited in the majority opinion reveals nothing to the contrary. I shall briefly comment oh these authorities cited by the majority.

The quotation from 18 Am. Jur. at page 790 deals .generally with the property rights of a franchise and not with the property rights of any particular location of installations. In point regarding locations see 18 Am. Jur., ■§ 18, page 421, and § 161, page 792; the Southwestern Bell case holds that the city has no power to require a utility £ to remove said poles as a public nuisance per se. ’ ’ In the Natural Gas case it was sought to enjoin the company “from furnishing natural gas to the inhabitants of the town of Norfleet and to require it to remove its pipelines and gas mains from the streets and alleys of the town of Norfleet,” and; the Cathey case has no bearing on this case except in respect to the £‘public road”. Its holding is merely to the effect that if property owners along the public road were in any way damaged by the installation of the Company’s poles along the right-of-way, they would have a suit for damages. It is not contended by anyone that the company secured permission from the property owners in this case to locate its poles along the road and certainly not at any particular spot or location. It appears from the stipulations in this case that if the property owners ever had any right to maintain such a suit against the Company that right has now been barred by the statute of limitations. I find nothing in the Cathey case which negates the right of the State, under its police powers, to require the Company to move its poles to another location ■on the new right-of-way at its own expense when it becomes necessary in the interest of progress and in the interest of the general welfare of the people.

Justice Holt joins in dissent.