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

text:
    ARKANSAS LAND & CATTLE CO. v. ANDERSON-TULLY CO. et al
    5-4896
    452 S. W. 2d 632
    Opinion delivered April 13, 1970

      Drew & Holloway, for appellant.

      Arnold, Hamilton & Streetman and Dent, Ward, Martin & Terry, Vicksburg, Miss., for appellees.
   John A. Fogleman, Justice.

Both appellant and appellee Anderson-Tully Company claim to be the owners of a tract of land usually referred to as Luna Bar. Appellant is the owner of Sections 9 and 16 in T 15 S, R 1 W and accretions in Chicot County, Arkansas. It claims that Luna Bar is within the boundaries of the tract owned by it, even though separated from appellant’s other lands by a chute of the Mississippi River. It is appellant’s contention that Luna Bar was separated from the Arkansas mainland by an avulsion, so that this land remained within the boundaries of the State of Arkansas,, and, with any accretions thereto, the property of the appellant On the other hand, Anderson-Tully Company claims ownership of these lands as accretions to its lands in Washington County, Mississippi, known as Carter Point or Woodstock, acquired by deed from C. W. Hunter Company in October 1962. It is the contention of appellees that portions of the lands within the original boundaries of appellant’s lands were eroded away by the action of the Mississippi River so that the boundary between the States of Arkansas and Mississippi and appellant’s boundaries shifted with the erosion. They also contended that Luna Bar actually consists of accretions to Carter Point in Mississippi.

Appellant instituted this action seeking to quiet its title and to enioin appellees from interference with appellant in the use and enjoyment of this land. Appellees moved to dismiss the complaint for want of jurisdiction over the lands, contending that they were in the State of Mississippi. The chancery court proceeded with extensive hearings upon the question of jurisdiction. This appeal was taken from the chancery court’s dismissal of appellant’s action for want of jurisdiction.

We agree with the chancellor that the burden lay upon appellees to show want of jurisdiction over the lands by a preponderance of the evidence. The allegations of the complaint indicate that the land was in Chicot County, Arkansas, and that the court had jurisdiction. Where, as here, a motion to dismiss depends upon the introduction of testimony, the burden of producing evidence to show the lack of jurisdiction is upon the moving party. Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S. W. 2d 578.

In order to meet their burden, it was incumbent upon appellees to show that the lands were formed as accretions to Carter Point. We do not agree that appellees met this burden.

The chancellor studiously recorded his findings in detail. These findings included the following:

1. The area occupied by Luna Bar was within the boundaries of Sections 9 and 16 owned by appellant when the United States Government Survey dated January 13, 1825, and certified June 18, 1823, was made.
2. Luna Bar appeared in the river sometime between the year 1862 and the years 1872 — 1874.
3. The thalweg, or sailing channel, of the Mississippi River lay west of Luna Bar for more than 40 years prior to 1961.
4. That the proof is insufficient to show that the Mississippi River “land jumped” and left Luna Bar isolated from appellant’s lands remaining in Sections 9 and 16 on the mainland.
5. That the thalweg or sailing channel west of Luna Bar existing from 1872/74-1935 came into existence by reason of erosion and accretion.

Appellant raises four points for reversal. Three of them have to do with the burden of proof and the conclusions to be drawn from the evidence. The first point is based upon the contention that the testimony of Austin B. Smith, an expert called by appellees, was erroneously admitted. It is argued that the witness lacked the necessary education, training and other qualifications to make his opinion evidence on the issues in the case admissible. Determination whether an expert witness is sufficiently qualified lies within the sound judicial discretion of the trial judge. Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889. This court will only reverse the decision of a trial judge on this determination in extreme cases where there is manifest error or a clear abuse of this discretion. Keeton v. Bozark, 232 Ark. 588, 339 S. W. 2d 123; Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S. W. 2d 866. We find no such abuse of discretion here.

Smith was a graduate in civil engineering from the University of Arkansas in 1930. He had 20 hours credit in geology. He is an employee of the United States Corps of Engineers, having been employed on a full-time basis by the Mississippi River Commission since 1935. His duties with the river commission have been connected with navigation and construction problems on the Mississippi River and its tributaries. He was responsible for navigation of the river during World War II. His present duties are in supervision of construction of dikes, abutments, dams and locks and of dredging in controlling the flow of the river. He is a member of the American Society of Civil Engineers, Mississippi Society of Professional Engineers, International Association of Navigation, Vicksburg Engineers Club, and a registered engineer in Louisiana and Mississippi. Although he had never made a geological study for the Mississippi River Commission, he classified himself as “one of the foremost” potamologists. He stated that he had been engaged in studying land formations along the Mississippi River and its tributaries for the purpose of examining the genesis of these lands in private employment for 30 years. He had been employed in three court cases and worked privately in twelve without litigation. His private employment included 12 or 15 matters wherein the state boundary was a factor. He claimed to have written several papers dealing with the actions of the Mississippi River and to have been concerned with about 100 accretions in boundary problems dealing with the Mississippi, Arkansas and Red Rivers. He had been concerned with this particular reach of the river on three other occasions between 1954 and 1965. As a part of his duties connected with navigation, he had experience in determining the deepest part of the river for safe navigation. Although the witness admitted that his duties in his regular employment had never included the determination of the genesis of any channel of the Mississippi River or any geological studies, we cannot say that the education, training and experience of the witness were so deficient that permitting him to testify was manifest error or an abuse of discretion. If expert testimony is required, long familiarity with the river and knowledge from observation and experience as to river action on banks and formation of islands and bars may be sufficient to qualify a witness. Mallory v. Brademyer, 76 Ark. 538, 89 S. W. 551

We find ample testimonial support for the first two of the chancellor’s findings listed above. As a matter of fact there seems to be little controversy on these points. Insofar as the other findings are concerned the critical question depends upon location of the river channel between 1861 and 1872/74 and the means by which any change of location was accomplished.

Appellees offered in addition to the testimony of Austin Smith that of Walter Guyer, chief forester for Anderson-Tully Company, J. S. McKnight, a forester with the United States Forest Service, Captain Henry C. Muirhead, a river pilot, and J. C. Smith, caretaker for C. W. Hunter Company, predecessor in title to appellee. On the other hand, appellant offered the testimony of John W. Thompson, a forester in charge of Johns Manville - Mississippi Timber Lands near Natchez, Mississippi, James Spillers, a geologist and T. S. Dabney, a licensed engineer.

Appellees contend that they have clearly shown that the tract involved was formed by accretion to Carter Point. They argue that the physical location of the river and the peninsula called Carter Point in 1962 as compared with their appearance in 1841 gives rise to a presumption that the Arkansas bank gradually eroded and the land formed by accretion to the Carter Point peninsula. In the case relied upon by them, however, it is pointed out that this presumption operates only in the absence of countervailing evidence. See United States Gypsum Company v. Reynolds, 196 Miss. 644, 18 So. 2d 448 (1944). It also depends upon other factors such as the relationship between the intervening time. lapse and the distance of movement, and the comparative general correspondence of locations and directions of the river. Under the evidence here, we do not deem this presumption to be controlling.

Our attention is called to the decision in Anderson-Tully Company v. Dr. J. M. Walls, 266 F. Supp. 804 (N. D. Miss. 1967), termed a companion case. We have not given any consideration to the decision in this case, principally because it appears obvious to us that there was considerable testimony before the Arkansas court, particularly the testimony of Spillers, that was not before the federal court.

An important element of the result reached by the trial court is its finding that until 1861 the thalweg or sailing channel of the Mississippi River was hard against the Arkansas mainland without regard to any land mass in the river. The river in the area in question is referred to as Spanish Moss Bend. An 1841 edition of the Western Pilot, containing charts of the Mississippi River with directions for navigation, described the upstream entry of Spanish Moss Bend as being just south of Island 82. The preferred sailing channel around this island was to the left or east. The navigational directions suggested an incline toward the right shore after this island was passed coming downstream. Map No. 12 depicting this area shows the channel as being in the center of the stream between the Arkansas mainland and Carter Point after the suggested turn. At this time, at least, the thalweg was not hard against, the Arkansas shore. The correctness of this finding may well depend on what is determined to constitute the Arkansas shoreline.

Lloyd’s Map of the Lower Mississippi River published in 1862 shows that the sailing channel is hard against the Arkansas shore at the extreme south end of the Arkansas point opposite Island 82, but shows the channel in the center of the stream through Spanish Moss Bend. E. A. Douglas’ 1872 Map of the Line of Levee from Gaines Landing to Luna designates this land formation as Luna Bar and does not show a connection with either shore. Luna Landing is shown by this map as being perhaps a mile south of the southernmost tip of the formation. The 1823 meander line was superimposed upon this Douglas map. The 1872 Arkansas bank is shown to be some 2,000 feet west of this meander line. A “state levee” running along the Arkansas shore from the north is shown as having terminated at the 1872 river bank opposite the north end of Luna Bar. A levee with a northern termination at the river bank virtually opposite the southernmost tip of the formation is also shown. The primary purpose of the Douglas survey was to determine the effect of floods upon levees.

Major Charles R. Suter, of the United States Corps of Engineers, mapped his reconnaissance of the Mississippi River in accordance with an Act of Congress of June 23, 1874. His map shows a land mass between Carter Point and the Arkansas mainland. He shows this as a land mass virtually equidistant from the Arkansas and Mississippi banks. The designation of Spanish Moss Bend is placed between this formation and Carter Point. A town or landing called Luna is shown on the Arkansas mainland near the southernmost tip of this land mass. The composition of the surface of the land mass appears to have been shown as sand.

Testimony concerning cypress stumps found in the water on the west of the island is of some significance. Thompson counted 205 annual rings on one sound stump. He described the stump next to it as being larger, but rotted out and fragmented. He testified that the stump from which he took the cross section grew in the spot where he found it and that appellees’ theory that these stumps were from cypress trees which floated to the point they now are found where they were separated from the stumps which then sank into their present location was clearly erroneous. The appearance of at least two of these stumps in photographs introduced tends to lend support to Thompson’s testimony rather than appellees’ theory. Support for the statement of this witness is the appearance of a designation of “cypress knees” or other designation of “cypress stumps” or trees along the Arkansas shore near the mainland on several Mississippi River Commission charts exhibited. One of these shows cypress stumps along the Arkansas shore in 1894. These charts indicate that there were evidences of cypress stumps many years before 1940, when appellees claim they were left there. It is their theory that there was a custom of floating cypress trees downriver to a point where logs were cut and hauled away and stumps left standing upright at the river bank. J. C. Smith told of this practice and said that he first saw these stumps in 1940. Austin Smith testified that if his theory that the river channel moved by gradual migration, rather than by avulsion, is correct, these stumps could not have remained in their present position. Captain Muirhead, a retired pilot of steam tugs and tenders on the Mississippi River, traced the sailing channel around Luna Bar or Towhead in 1933 and before the construction of Tarpley Cut-Off in 1935. He pláced it between the Bar and the Arkansas mainland. While tracing the line on an exhibit, he commented as follows:

“Now you will note as you got down to the foot of the towhead there, right in there was extremely deep water on both sides, but there was a lot of stumps in there and we always ran near the main shore to avoid those snags in there around the island or towhead.”

Although Captain Muirhead said that the channel east of Luna Bar was too shallow to be used by steamboats except during excessively high water at any time from 1920 on, he said that there was never dry land between Luna Bar and Carter Point until the construction of Tarpley Cut-Off. The significance of this witness’ saying that the channel west of Luna Bar had been called Linwood Bend, rather than Spanish Moss Bend, as it is now designated, is not to be overlooked, in view of Suter’s location of Spanish Moss Bend east of the bar.

The testimony of James Spillérs is impressive. He is a geologist with bachelor’s and master’s degrees, who has done some work toward a doctorate. He has many years of experience as a geologist, during which he has served as a part-time associate professor of geology at Mississippi Southern University. His major employment prior to 1963 was with an oil company. Since that time he has served as Chief Geologist in charge of the Engineering and Geological Division of the Louisiana State Mineral Board. He has worked in his profession in North Carolina, Texas, California, Louisiana, Mississippi and Alabama. Two-thirds of his career has been spent in evaluation of deep strata and geological structure, and the remainder in surface geology. He made a study of the origin and evolution of the land mass in question. Spillers took borings by digging post holes in four different places. In one of them on the face of the eastern escarpment of an area he called province 1, he found permanent bench mark 168 H C of the United States Corps of Engineers, covered by four feet of colluvium, which he said had crept over the face of the cliff. In at least one sample from a boring on the mesa, Spillers found a lithology at corresponding elevations similar to that of a sample on the mainland in proximity to the community of Luna.

Spillers divided the island into five physiographical areas, which he designated as “provinces.” One of these was a high mesa-like area of about 200 acres, ranging from 135 feet elevation at the northern extremity to 120 feet at the south. This area lies wholly within the original lines of Sections 9 and 16, T 15 S, R 1 W of the original government survey in Arkansas. Significantly, the 1823 meander line of the river runs along the eastern escarpment. He found a distinct drainage pattern on this part of the island. His province 2 sloped gradually downward from No. 1 to the north and east. Province 3 lying north, east and west of province 2 was described by him as accretionary to No. 2. His province 4 lay east and west of Nos. 1, 2 and 3, and he characterized it as a series of accretionary materials. Province 5 consisted of the abandoned river channels east and west of the island. He found water running through the channel between the island and Carter Point.

By a study of survey maps and charts, Spillers demonstrated a relationship between the elevation of his physiographic province 1 and both the Arkansas and’ Mississippi mainland. From elevations shown on the various survey maps and charts exhibited he concluded that the formation had never been a low-lying island but was always a high mass. It appeared to him that the channel east of Luna Bar had remained in essentially the same location since 1874. By a study of Mississippi River Commission charts showing the location of early river channels and a geological survey of ancient courses, he established that channel migration moved the point of the bar in a southwesterly direction prior to 1891-95 at the rate of 50 feet a year. By the same method, he noted that all channels had remained in relatively the same position after 1872-74. He referred to a monumental study of the river made for the Mississippi River Commission by a Dr. Fisk, whom he considered to be an eminent authority on Mississippi River geology and history. This study was based in part upon 16,000 borings. It was made in 1944. Plate 22, Sheet 9, accompanying Dr. Fisk’s report is a chart of historic and prehistoric river courses. A study of the legend accompanying this chart shows that the river channel never occupied the position now occupied by a part of the mesa area of Luna Bar for nearly 800 years. A map of early stream channels prepared in the office of the President of the Mississippi River Commission also indicates that the river channel never occupied this area, at least since 1765, which is the beginning point of the study. The indicated “indeterminate bank line” thereon places it east of this mass. According to Spillers, if Luna Bar had been accretions to the Carter Point peninsula, it should have had some slope in a westerly direction.

Spillers calculated that the changes that took place between 1861 and 1872-4 would require a dramatic migration of approximately 550 feet per year, more than five times the average migration of other bends in that reach of the river.

Spillers also recounted the history of flood intensity from 1862 to 1874. He found that the flood of 1862 exceeded all previous gauge heights at Cairo, except during the year 1815 and that there was great destruction of levees at all points below Cairo. The 1865 flood was noted for duration but was of less intensity than the one of 1868, which was classified as an extreme flood. An 1867 flood was characterized by almost unprecedented rapidity and height in rises, and by two crests two weeks apart. There were also floods in 1871 and 1874, the former having been classified as a great flood. Either of these floods, individually or coupled, according to Spillers, offered an opportunity for the river to have formed a new or alternate channel. He concluded that when topographic, physiographic and lithological conditions, the 100-year minimum age of the mesa land mass, the comparison of migration of channels in other bendways, and the relative stability of the channels, both before 1861 and after 1874 are considered, the formation of Luna Island could only have been the result of an avulsion of the Mississippi River between 1862 and 1874 rather than of the gradual process of erosion and accretion, and that the island is a remnant of the Arkansas mainland to which there have been accretions.

The theory of Austin Smith is directly contrary to that of Spillers. He placed considerable emphasis upon the failure of any map or chart to indicate the presence of vegetation on the island prior to a 1925 hydro-graphic survey made for the Mississippi River Commission. The same witness stated that this vegetation was destroyed in 1933. Spillers testified that vegetation in certain instances is sometimes removed by sand migration, by the effect of dunes and by the action of water and winds. The constant floods may have been an element in denuding all or a portion of this tract of vegetation. Spillers testified that scouring action of the river during floods tended to remove soil and trees from lands which were then submerged.

Another cardinal point in Smith’s testimony is that the river could never have accommodated itself to the narrow distance between the 1833 meander line on Carter Point and edge of Luna Bar. Yet the 1939 Arkansas-Mississippi Quadrangle Map published by the United States Corps of Engineers and introduced through him shows the 1825 and 1833 meander lines of the river. These seem to place the river between these two points. It also appears that the width of the two channels is depicted as about the same by the Suter map, the 1894 Mississippi River hydrographic survey, and other maps and charts introduced.

Smith’s lack of experience in determining genesis of land formations tends to detract from the weight to be given his testimony regardless of his expertise in river action. Smith’s physical reconnaissance of the island also seems to have been rather cursory. On the other hand, Spillers spent six days on the island.

Considerable significance is accorded by both parties to findings of foresters as to vegetation, its age and history. We agree with the chancellor that no weight can be accorded to this testimony because it and the interpretations given it are in such conflict that it is inconclusive. It would not be possible to say, on the present record, that a chancellor’s finding on this important factor was against the preponderance of the evidence. If the trial court’s findings had rested on this factor, we could only affirm its decree.

At any rate, we find appellees did not meet their burden of proof and that the evidence on the question of jurisdiction preponderates in favor of appellant. The cause is remanded for further proceedings.

Appellees’ motion to tax the cost of its supplemental abstract against appellant is granted.

Conley Byrd, Justice,

dissenting. I disagree with the reliance upon the testimony of Spillers to reverse the trial court’s finding.

The undisputed fact here is that the main chanel of the Mississippi River, until the Tarpley cut-off in 1935, was along the right descending bank of the river and had been along the right descending bank in the area of Spanish Moss Bend as long as records have been kept. Another undisputed fact is that the main channel of the river was west of Luna Bar according to the first maps that depicted its existence. It is also undisputed that in the years of 1879-80 the Mississippi River Commission caused its Chart No. 39 to be made under the supervision of First Lieutenant Smith S. Leach, U. S. A., and that on this chart Luna Bar is shown as a sand bar. Furthermore, the highway maps of both Mississippi and Arkansas indicated the boundaries between the two states as being in the main channel along the right descending bank of the Mississippi River until sometime after the Tarpley cut-off in 1935.

Austin Smith, a potomologist, testified that he began his study of the Spanish Moss Bend problem with an 1821 map (prepared by Young) that accompanied an 1822 report to Congress and that that map showed snags in the channel of the Mississippi River. (The purpose of the report was to improve navigation and snags were a menace to navigation.) He pointed out that for the river to have made a cut-off as described by Mr. Spillers, the new channel would have had to make a circuit around Luna Bar and back into the old channel at least three miles long and all of the silt, sand and vegetation would haye to go in the river. In all the studies he had made there was no indication of deposition of this large land mass downstream from Luna Bar. It was his opinion that if such a large amount of material had been deposited downstream, it would have been recorded and he was able to find no such record.

Mr. Smith pointed out that following the 1822 survey, the federal government began to remove snags and has continued that practice down to date of trial. According to an 1894 government survey the bore holes of Spillers, locating the cypress stump, would have been in the deepest part of the river channel when the 1894 survey was made. Smith’s analysis of the charts and the information obtained by Spillers’ bore was that the alluvium on Luna Bar was of recent origin and within the boundaries of the State of Mississippi.

Mr. Smith explained the presence of the cypress stumps because of the common practice on the river for dredges to pull logs from the river, cut away the timber portion of the tree and then drop the roots and stumps back in the river.

Mr. Spillers, in contending that the stumps had grown in place, admitted that when Exhibit 13 was overlaid on his Exhibit 42, the cypress stump would be close to the right descending bank in the river. According to Spillers, a concave bank caves in a slipoff manner — the river undercuts the bank and it slips in, letting the vegetation fall in the river. He stated that when caving occurs, he would expect a tree on the top to rotate and lean and that the cypress tree he found did lean (record 351 to 353). From the boring made, the age of the cypress stump, and the topography of the land Mr. Spillers concluded that the Mississippi did not cut and erode to its 1935 position but that it encircled Luna Bar leaving the land mass intact.

Mr. Spillers’ opinion, based upon evidence that now appears, cannot be reconciled with the recorded observations of First Lieutenant Smith S. Leach in the years • 1879-80 to the effect that the area in question was a sand bar. Furthermore, his expectation that a tree on a caving concave bank would rotate and lean and remain in place shows to me that he knows nothing about a caving concave bank.

It is not the water that makes a bank cave into a river. It is the force and movement of the water, much like the modern air drill used by dentists, that cuts under the terra firma and through any root formations (and also pilings) that caves away the alluvium banks of our rivers. When the force and movement is such as to move the terra firma in that manner, it also moves away any vegetation, including the massive oak and cypress that abound on such streams. Who has observed a caving concave bank on the Mississippi with leaning stumps or trees along the edge of the water next to the concave bank? The answer is obvious, because all such banks are well and cleanly scoured.

Mr. Spillers’ testimony does not preponderate against the trial court’s finding for still another reason —i. e., there is no record of an avulsion having occurred in this area even though all of the charts introduced and relied on by both sides show signs of civilization in the area in the nature of towns or communities carrying popular names. In this we must remember that the testimony here is that it would have taken a three mile cut into the Arkansas bank of the river for the river to have encircled Luna Bar and left it in place. In Dartmouth College v. Rose, 257 Iowa 533, 133 N. W. 2d 687 (1965), the Iowa court held:

“There is a presumption of accretion as against an avulsion. . ..
In addition to the presumption against the happening of an avulsion in the summer of 1937 as contended by the intervenor, no witness testified to such an event. We repeat what is said in Bone v. May, supra, 208 Iowa 1094, 1097; ‘A sudden change of the course of the Missouri River, affecting 600 or more acres of land, would, we think, attract considerable attention. Ii is altogether likely that it would have been known by everybody living in that territory, for miles around.’ ”

Considerable force is added to the foregoing proposition since part of Spillers’ hypothesis is that Luna Bar shows the remnants of an identifiable levee on the Arkansas side of the main channel of the river before the 1935 Tarpley cut-off.

For these reasons, I would affirm the trial court.

Harris, C. J. and Holt, J. join in this dissent.

      Appellee Chicot Land Company asserts rights in the tract by virtue of an exclusive license for hunting and fishing dated August 18, 1964. Other parties are in the same position as Anderson-Tully so far as issues involved on this appeal are concerned.

      The propriety of questioning subject matter jurisdiction by preliminary motion to dismiss rather than by answer, when a question of fact is involved, was not questioned in the lower court, even though it seems that substantially the same questions will be involved on trial on the merits.

      Other maps show both a landing and a community called “Luna” in proximity to each other.

      The weight of this testimony is diminished somewhat by the fact that Spillers only dug down a few feet in taking this sample and never returned for further borings. Austin Smith pointed out that others had made studies which would tend to contradict Spillers’ conclusions.

      Austin Smith obtained geological data from Dr. Fisk’s report.

      Austin Smith testified that Luna Bar first appeared on a government survey in 1870.

      The general rule is that the1 boundary follows the channel when the change is not sudden and violent. But there is a recognized exception. The boundary remains in the same place whenever a river changes its main channel, not by excavating, passing over and then filling the intervening place between the old and new channel, but by flowing around intervening land, which never becomes the main channel in the meantime, and the change from the old to the new channel is wrought over a period of years by the gradual or occasional increase of the propouion of the waters passing over the course which eventually becomes the new channel and a corresponding decrease in the waters flowing through the old channel until the greater part of the waters flow through the new channel. Commissioners v. United States, 270 F. 110 (8th Cir. 1920), dismissed for want of prosecution, 260 U. S. 753, 43 S. Ct. 14, 62 L. Ed. 497 (1922). See also Uhlhorn v. United States Gypsum Co., 366 F. 2d 211 (8th Cir. 1966), cert. denied, 385 U. S. 1026, 87 S. Ct. 753, 17 L. Ed. 2d 674 (1967) wherein it is demonstrated that the “thalweg rule,” governing state boundaries, requires that the boundary remain fixed, unless changed by the gradual and imperceptible process of erosion and accretion, even though the process by which the river seeks a new channel is not a true avulsion. ’


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Clarence R. DOEPKE v. J. Michael SMITH, Ex’r
    5-5137
    452 S. W. 2d 627
    Opinion delivered April 13, 1970

      Spitzberg, Mitchell ir Hays, for appellant.

      Macom, Moorhead ir Green and Wright, Lindsey & Jennings, for appellee.
   John A. Fogleman, Justice.

Appellant’s petition for the appointment of a special administrator for the estate of Leavell Smith was denied by the probate court. Smith died on June 18, 1966, as a result of injuries received in an automobile collision. Appellant alleged that he was a passenger in a vehicle being driven by Smith on that date, and that he suffered personal injuries as a result of Smith’s wilful, wanton and reckless operation of that motor vehicle. Smith’s will was admitted to probate. Notice to creditors was duly published on June 28 and July 5, 1966. No claim against Smith’s estate was filed by appellant within the period allowed by Ark. Stat. Ann. § 62-2602 (Supp. 1969), or before the administration on the estate had been closed and the executor discharged. Appellant prayed that a special administrator be appointed for the purpose of receiving service of process in a personal injury action contemplated by him, but not for the purpose of receiving service of a claim against Smith’s estate.

Appellant alleged that his failure to file a claim was due to representations made by an agent of Smith’s liability insurance carrier with the deceitful intent that appellant and his attorneys rely thereon to appellant’s detriment. The misrepresentation alleged was that appellant’s claim would be settled whenever his injuries were subject to final evaluation. According to appellant’s petition, settlement negotiations were abruptly terminated by this insurance carrier upon lapse of the time allowed by Ark. Stat. Ann. § 62-2602 for filing claims. Appellant stated in his petition that he had no intention to circumvent the statute of non-claim, but only desired to assert such rights as he may have against the insurance carrier. There is no suggestion that the executor of Smith’s estate participated in any conduct or made any representations contributing in any way to delay in filing a claim.

Appellant admits that he is barred from filing any claim against Smith’s estate upon the authority of Turner v. Meek, Executor, 225 Ark. 744, 284 S. W. 2d 848; and Wolfe v. Herndon, Executor, 234 Ark. 543, 353 S. W. 2d 540. He states that he does not seek, directly or indirectly, an overruling of those decisions.

We know of no authority for the action sought by appellant. Appellant was unable to cite any direct statutory or decisional authority for the action sought by him. Arkansas Statutes Annotated § 62-2210 (Supp. 1969) governs appointment of special administrators by the probate court. It authorizes the appointment of such an administrator pending the appointment of an executor or personal representative, or to perform duties pertaining to specific property or to perform specific acts.

We have previously held that a special administrator could not be appointed solely for the service of process. Nickles v. Wood, 221 Ark. 630, 255 S. W. 2d 433. In that case the purpose of the service was to fix venue in an action to recover damages for personal injuries alleged to have resulted from an automobile collision. Appellant’s professed purpose here is to obtain service on a special administrator in order to assert such rights as he may have against the decedent’s insurance carrier. We do not perceive any sound distinction that would justify our establishing a different rule because of this difference in purpose. In Nickles, a claim was actually being asserted against the estate.

It may well be that appellant could maintain his action against the insurance carrier without making Smith’s estate or representative a party to the action, if he can sustain allegations contained in his petition. He alleged that the carrier’s agents, by means of deceitful conduct designed and intended to avoid the filing of a suit by appellant until the statute could be plead as a bar, lulled petitioner into a false sense of confidence and assurance that the carrier sought, in good faith, an opportunity to settle appellant’s claim when his injuries could be evaluated, disregarding the statute of non-claim. He also alleged that the negotiations were abruptly halted when the period for filing claims expired. See Fireman’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728, where a judgment against an automobile liability insurance carrier was sustained in spite of the fact that there was no judgment against the insured.

Cases from other jurisdictions relied upon by appellant are not authority for the action he seeks. In none of them was a special administrator appointed, or administration of an estate reopened. They deny' application of the statute of non-claim, because of exceptions stated in the applicable statutes. See Meinberg v. Glaser, 14 Ohio St. 2d 193, 237 N. E. 2d 605 (1968); Collins v. Yanity, 14 Ohio St. 2d 202, 237 N. E. 2d 611 (1968); Sessions v. Jelks, (Dist. Ct. App., Fla., 1967), 194 So. 2d 307. One of them involves a situation where the personal representative’s attorney made statements and engaged in conduct which led the claimant to believe that the statute would not be applied. Sessions v. Jelks, supra. As a matter of fact, one of them tends to refute appellant’s argument here. It was therein stated that power to extend the time for filing claims against an estate, conferred upon the court by statute, could not be exercised where a claimant withheld commencement of his action because of negotiations with an insurance carrier when there was no evidence that any personal representative, agent or attorney of the estate, either by design or inadvertence, had taken any action which had the effect of lulling the claimant into a false sense of security or inducing him to ignore the clear statutory limitation. In re Kemp’s Estate, (Dist. Ct. App., Fla., 1965), 177 So. 2d 757; see also, comments on this decision in Sessions v. Jelks, supra.

If appellant’s petition be considered as a petition for reopening the estate, as it is treated by appellee, appellant has no standing to ask such relief. It is available only upon petition of a person interested in the estate. Ark. Stat. Ann. § 62-2913 (Supp. 1969). The estate is defined as the real and personal property of the decedent. Ark. Stat. Ann. § 62-2003 (Supp. 1969). Appellant professes that he has no interest in this. Interested persons include an heir, devisee, spouse, creditor or any other having a property right or an interest in, or claim against, the estate being administered and a fiduciary. Appellant is neither. Ark. Stat. Ann. § 62-2003 (Supp. 1969).

The judgment of the probate court is affirmed.


author: J. Fred Jones, Justice.

text:
    RED LINE TRANSFER and STORAGE Co., Inc. et al v. ARKANSAS COMMERCE COMMISSION et al
    5-5195
    452 S. W. 2d 650
    Opinion delivered April 13, 1970

      Louis Tarlowski, for appellants.

      Pittman, Clay, Cole ir Gilliland, Memphis, Tenn., and Warren & Bullion, for appellees.
   J. Fred Jones, Justice.

The appellants, including Red Line Transfer and Storage Company, Inc., are certified motor carriers operating in intrastate commerce pursuant to authority granted by the Arkansas Commerce Commission; and the appellee-respondent, Atlas Transit, Inc., is a competitor engaged in the same business under similar authority. Red Line and the other competitors of Atlas bring this appeal from an adverse decision of the Pulaski County Circuit Court affirming an order of the Arkansas Commerce Commission denying the appellants’ petition to clarify, revise and correct certificate No. 651 issued by the Commission to Atlas on December 14, 1966.

The facts are not in serious controversy and the question presented is primarily one of law, stated by the appellant as follows:

“The specific legal question here involved is whether under Section 10 of Act 397 of 1955 (The Arkansas Motor Carrier Act) — Section 73-1763, Ark. Stats., requiring a Certificate issued by the Commission to specify whether the permitee is authorized to serve intermediate and off-route points, which requirement is contained in the statute, and which Appellants contend have throughout the years been omitted from all Certificates issued to Atlas, and its predecessors (except the Certificate of July 15, 1966 not here involved) are erroneously included in the Certificate of December 14, 1966. The power and authority of the Commission to correct its errors of omission and commission by inserting in the Certificate of December 14, 1966, without notice, hearing and proof of public need, specific authority to serve intermediate and off-route points, is also here involved.”

Atlas received its first certificate in 1930 under authority of Act 99 of the Acts of 1927, as amended by Act 62 of 1929. Section 3 (a) of Act 62 pertains to applications for permits and provides as follows:

“Application for such permit shall be made by such corporation or persons, their lessees, trustees, or receivers, to the Commission, and shall specify the following matters:
The public highway or highways over which applicant intends to operate, and the cities and towns and the termini on the regular route to the [be] operated over.”

Subsection (1) of § 3 (a), among other things provides that the applicant “shall maintain an office at some town or city along the route on which it proposes to operate.”

The 1929 Act changed the responsibility from the applicant to the Commission for the giving of notice in connection with hearings, and Act 62 of 1929, § 3, (6), (c), in part, provides:

“. . . After such hearing the Commission may issue the license certificate or refuse the same, or may issue the same with modifications, and upon such terms and conditions as in its judgment the public convenience and necessity may require. No license shall be issued to any person, firm, corporation or association or to associated interests for a total mileage in excess of an aggregate twenty per cent of the total mileage within the State Highway System, nor shall any such license, in any event, be exclusive.”

Section 3, subsection (6), (d) also provides:

“Each license certificate issued under the provisions of this Act shall contain such matters as may be prescribed by the Commission, and sháll specify that the same is issued for an indeterminate period of time, and after such license has been issued the same shall be cancelled only for cause after notice and a hearing as herein provided.”

The Arkansas Motor Carrier Act of 1941 was enacted by Act 367 of the Acts of Arkansas for 1941, and § 10 of this Act (Ark. Stat. Ann. § 73-1763 (a) (b) [Repl. 1957]) is as follows:

“(a) Any certificate under this Act shall specify the service to be rendered and the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within which, the motor carrier is authorized to operate; and there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the Commission under this Act; provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in the certificate as the development of the business and the demands of the public shall require, (b) A common carrier by motor vehicle operating under any such certificate may occasionally deviate from the route over which, and/or the fixed termini between which, it is authorized to operate under the certificate, under such general or special rules and regulations as the Commission may prescribe, (c) Any common carrier by motor vehicle transporting passengers under a certificate issued under this Act may transport to any place within this State special or chartered parties under such rules and regulations as the Commission may prescribe, (d) A certificate for the transportation of passengers may include authority to transport in the same vehicle with the passengers, newspapers, baggage of passengers, express, or mail, or transport baggage of passengers, in a separate vehicle.”

Many of the common carriers, under the jurisdiction of the Arkansas Commerce Commission, have through the years been issued separate certificates for operation over separately designated highway routes. As a matter of convenience, in enforcing its powers and administering its duties, the Commission has for sometime, and usually on' its own motion, been consolidating the separate route certificates held by a single carrier into a single certificate designating the various routes. It was under such procedure that the Commission issued to Atlas the certificate dated December 14, 1966, setting out the numerous regular routes over which Atlas was authorized to perform transportation service. For example, the routes were designated in language as follows:

“U. S. -Highway 67, Texarkana, Arkansas, to Corning, Arkansas;
U. S. Highway 65, from Junction of U. S. Highway 64 to Eudora, Arkansas;
U. S. Highway 167, Little Rock, Arkansas, to Thornton, Arkansas;
State Highway 81, Jet. U. S. Highway 65, to Hamburg, Arkansas;
U. S. Highway 165, Jet. U. S. Highway 65 to Wilmot, Arkansas;
U. S. Highway 70, West Memphis, Arkansas, to Little Rock, Arkansas;
U. S. Highway 64, Ft. Smith, Arkansas, to Conway, Arkansas;
U. S. Highway 70, Hot Springs, Arkansas, to Kirby, Arkansas;
U. S. Highway 71, Alma, Arkansas, to Bentonville, Arkansas;
U. S. Flighway 79, Marianna, Arkansas, to Fordyce, Arkansas;
U. S. Highway 79, Thornton, Arkansas, to Magnolia, Arkansas;
State Highway 15, Pine Bluff, Arkansas, to Warren, Arkansas;
State Highway 11, Junction U. S. Highway 67 to Batesville, Arkansas.”

The certificate then contained the language to which the appellants object, as follows:

“* * * and applicant is permitted to tack these routes with its presently certificated routes at all common points of joinder and to serve all intermediate points on the routes hereinabove set forth.”

Immediately following the above language, the certificate then provides for an alternate route for operating convenience only, over

“State Highway 7, Camden, Arkansas, to Smack-over, Arkansas, and return serving no intermediate points.”

The certificate of December 14, 1966, further provides that it shall supersede the same numbered certificates dated August 15, 1961, and July 15, 1966. The certificate dated August 15, 1961, provided that the transportation service to be performed by Atlas was to be over regular routes, the same as the certificate dated December 14, 1966, less the eight additional routes set out in the certificate dated July 15, 1966. This certificate also authorizes an alternate route for operating convenience only, over

“State Highway 7, Camden, Arkansas, to Smack-over, Arkansas, and return serving no intermediate points.”

The certificate dated July 15, 1966, pertains to eight separate routes and recites that it was issued after notice of hearing at which no one appeared in opposition. The findings and order of the Commission contained in this certificate appear as follows:

“From a consideration of the foregoing it is quite apparent there is a need for the proposed service as set out in the application and that the said application should be granted; that the applicant be permitted to join its presently certificated routes with the routes hereinafter set forth and to serve all intermediate points thereon, and that the applicant is financially able and willing to perform the services necessary. It is further apparent that notice has been properly given to the public by publication of the application in the Federal Register on June 8, 1966, as aforesaid, and proper notice filed with the Interstate Commerce Commission at Washington, D. C.
IT IS, THEREFORE, ORDERED, that the applicant be, and it is, AUTHORIZED to transport General Commodities as a common carrier in intrastate commerce over the following routes:
State Highway 14, Junction U. S. Highway 63 to Batesville;
State Highway 10, Little Rock to Perry;
State Highway 60, Arkansas River to Plainview;
State Highway 113, Junction State Highway 60 to Junction State Highway 10 (serving Fourche as off-route point);
State Highway 7, Junction State Highway 60 to Ola;
State Highway 28, Rover to Ola (serving Kingston as off-route point)
State Highway 27, Rover to Danville;
State Highway 23 and 116, Booneville to State Sanatorium.
This Commission further finds that the present and future public convenience and necessity require operation by applicant in interstate or foreign commerce over regular routes in the transportation of General Commodities and that applicant be permitted to tack with its presently certificated routes at all common points of joinder and to serve all intermediate points on the routes herein above set forth.” (Emphasis supplied).

The certificate in controversy, No. 651, has more or less grown up with the highway transportation business in Arkansas and it is no stranger to litigation. It was originally issued on January 28, 1930, to Pine Bluff Baggage and Transfer Company (P. D. Gathright). Linder this original certificate authority was granted “to operate a general transfer and drayage business between the following points to-wit:

General transfer and drayage business at Pine Bluff and to engage in long distance transportation of property.” (Emphasis supplied).

Gathright sold out to Johnson in 1948 and under date of January 3, 1951, an ex parte proceeding was insdtuted by the Commission in order to clarify the word “property” as used in the 1930 certificate and to define the routes over which Atlas was authorized to operate. Other carriers appeared as interested parties at a hearing on the matter and in the order issued on January 3, 1951, the Commission, among other things, found as follows:

“The evidence of defendant Johnson, shows that the Gathright Van & Transit Company and his Company, Atlas Transit 8c Warehouse Company, as successors, have been engaged in the transportation of all kinds of property on call and demand over the major highways within the State of Arkansas. * * * The Commission finds from the pleadings in this case that in response to the complaint and the intervention, the defendants assert, contend and admit that they are and have been carriers of general commodities.
# # #
The Commission further finds that since a valuable consideration was paid for the property rights involved in these certificates, that to revise the Certificate No. 651 as sought by the plaintiffs and interveners herein, would destroy these valuable property rights heretofore purchased by defendants. Moreover, after a twenty year lapse of time since the original issue of these certificates and by the transfer of the operating rights by this Commission on three separate occasions, the operating rights have become fixed and the defendants should continue to operate over the highways as hereinafter set out as a Common Carrier of General Commodities, Household Goods and Heavy Machinery.
IT IS, THEREFORE, ORDERED by the Commission that the defendants, Otis P. Johnson, Jr. and Robert C. Johnson, dba ATLAS TRANSIT 8c WAREHOUSE COMPANY, be and they are hereby authorized to operate as a COMMON CARRIER OF GENERAL COMMODITIES, HOUSEHOLD GOODS, and HEAVY MACHINERY, within the State of Arkansas, INTRASTATE, between the points on the following highways:
U. S. Highway 67 from Texarkana to Corning;
U. S. Highway 65 from Omaha to Eudora;
U. S. Highway 167 from Little Rock to Thornton;
State Highway 81 from Junction of U. S. 65 to Hamburg;
U. S. Highway 165 from Junction of U. S. 65 to Wilmot;
U. S. Highway 70 from West Memphis to Little Rock. . .”

This order of the Commission became effective September 11, 1951; and was approved by the circuit court, and this court on appeal. Ark. Motor Freight Lines v. Johnson, 221 Ark. 157, 252 S. W. 2d 814. The intermediate points along the designated highways were not involved in Johnson, but the logic pertaining to the commodities Atlas was authorized to carry in that case is just as valid in the case at bar. In Johnson we said:

“. . . Under the authority of that permit he [Johnson] expanded his business to include the conveyance of general commodities, and he and Atlas occupied that field for about a decade. It does not appear that any competing carrier objected until the Commission itself raised the issue in 1950. In these circumstances we cannot say that Gathright’s conduct was unauthorized or that the Commission was in error in allowing it to continue.”

In compliance with the mandate from this court in Johnson, on January 8, 1953, the Commission entered its order as follows:

“That in compliance with the mandate of the Supreme Court of Arkansas issued in this cause and the order of the Pulaski Circuit Court filed with this commission, that Otis P. Johnson, Jr., and Robert C. Johnson, doing business as Atlas Transit and Warehouse Company, be and they are hereby authorized to operate as a common carrier of general commodities, household goods and heavy machinery within the State of Arkansas, intrastate between points and places on the following highways, as ordered by the Pulaski Circuit Court, 2nd Division, in its order of January 7, 1953.” (Emphasis supplied).

We are not impressed by the appellants’ argument pertaining to the reasons for granting a motion to strike the testimony of a Mr. Gilmore in another and different proceeding before the Commission. We are impressed with the logic of the Commission’s reasoning, which was carried forward in our own opinion in Johnson, and we affirm the judgment of the trial court for two primary reasons. Atlas and its predecessor in title of certificate No. 651 have been servicing the routes here involved, including the intermediate points, for forty years without question by the appellee interveners, any other common carrier or the Commission itself, and as we said in Johnson: In these circumstances we cannot say that Atlas’ conduct was unauthorized or that the Commission was in error in allowing it to continue. Furthermore, Atlas and its predecessor were servicing intermediate points without objection even before there was a statute requiring designation. After proper notice and without opposition, the Commission, by its order of July 15, 1966, authorized eight separate routes with express authority to service all intermediate points. On July 15, 1966, Atlas already had authority to service the remainder of its routes under certificate order dated August 15, 1961. The July 15, 1966, order not only authorized the additional eight new routes» and intermediate points thereon, but the July 15, 1966, order permitted Atlas to tack with its routes already authorized at all points of joinder “and to serve all intermediate points on the routes hereinabove set forth.” We are of the opinion that the words “hereinabove set forth” are broad enough to cover the routes Atlas had been servicing for thirty-six years, as well as the eight new routes authorized in 1966 to which the old routes were tacked.

We conclude, therefore, that the order of the Commission, as affirmed by the circuit court, is not void for lack of notice that Atlas was proposing to do what everyone knew it had been doing without protest for over thirty years. We are of the opinion that the wording of the order of July 15, 1966, satisfies the statutory requirements anyway.

Affirmed.

Harris, C. J., not participating.


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

text:
    ARKANSAS GAME AND FISH COMM’N v Parker PARKER
    5-5202
    453 S. W. 2d 30
    Opinion delivered April 13, 1970
    [Rehearing denied May 18, 1970.]

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.

      Parker Parker, pro se.
   Conley Byrd, Justice.

Appellant, the Arkansas State Game and Fish Commission hereinafter referred to as Commission, filed this action (Cause No. 3440), to quiet its title to the NE % Sec. 28, T. 5 N., R. 21 W. against Parker Parker. It based its title upon a warranty deed from Betsy Altman dated March 3, 1953, recorded in Deed Book 73 at page 474 in the Dardanelle District of Yell County. Other allegations in the complaint are as follows:

“That notwithstanding the above allegations the sheriff and collector of Yell County, Arkansas, caused the said described property to be sold to the defendant herein, Parker Parker, at a tax sale on November 8, 1954, and that subsequent to the said sale, the Clerk of the County Court of Yell County, Arkansas, caused a clerk’s deed of tax sale to be delivered to the defendant herein, Parker Parker, dated January 15, 1957, and filed for record April 15, 1957, at 10:00 a.m.
That on or about the 17th day of September, 1959, the Chancery Court of Yell County, Arkansas, Dardanelle District, entered a decree confirming the title to the said lands described herein to the defendant herein, Parker Parker, said decree being found in Chancery Record H at Page 303 of the Chancery Records of Yell County, Arkansas, Dardanelle District.
That the said decree and tax title issued pursuant thereto were null and void and of no effect since the property purported to be delinquent and confirmed was legally and equitably owned by the State of Arkansas for the use and benefit of the Arkansas Game and Fish Commission.
That Ark. Stat. Ann. § 10-214 provides that no tax title shall be valid or binding against the equitable or legal interests of this State in or to any real estate whatever, but such tax titles are and shall be void, so far as the same shall conflict with the interests of the State, and shall be treated and considered as null and void in both law and equity in all courts of the State.”

On motion of Parker the case of Parker v. Certain Lands, No. 3101 in the Chancery Court of Yell County, Dardanelle District, was consolidated with the action filed by the Commission. In Cause No. 3101 Parker sought to quiet title to numerous tracts of land purchased at tax sales over a number of years. The service obtained there was by newspaper publication. After publication of the notice the Commission voluntarily appeared and claimed four parcels but made no claim to the tract here involved. As a result Parker’s complaint in Cause 3101 was dismissed as to those four parcels, but a decree was entered confirming Parker’s title to the NE¼ Sec. 28, T. 5 N., R. 21 W., here involved.

Cause 3440 was submitted to the Chancellor upon motions by both parties for summary judgment. From a decree holding that the commission was estopped by the judgment in Cause 3101 from proceeding against the lands here involved, the Commission appeals. We agree with the trial court.

Our Constitution (1874) Art. 5, § 20 provides: “The State of Arkansas shall never be made defendant in any of her courts.” In St. Louis Southwestern Ry Co. v. Yates, (CCA Ark. 1927), 23 F. 2d 283, the foregoing provision was construed to mean, “[Tjhat the state cannot be compelled to defend in any action in a court of that state, but that the state may voluntarily appear and ask to be made a party in any action either in the state or the federal courts.”

In Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S. W. 2d 53 (1937), in construing the same provision, we said:

“. . . In contending, however, that in no case the courts render a judgment against the state, counsel misconceive the effect and purpose of the constitutional provision, supra. The prohibition is limited to a denial of any one to sue the state in her own courts. The state, however, by virtue of its sovereignty, may become a suitor in her own courts and, when she has done so, she has the same rights and is subject to like restrictions as a private suitor and must submit to, and abide by, the result. Wilson v. Parkinson, 157 Ark. 69, 247 S. W. 774;...”

In King v. Harris, 134 Ark. 337, 203 S. W. 847 (1910), King filed an action as the only heir of Smith to recover possession of land from Harris and Fullerton. The prosecuting attorney appeared and defended on the basis that the lands had escheated to the state and requested that the cause be dismissed as an action against the state. In reversing the trial court’s dismissal of the complaint, we said:

“. . . The State has in effect become a party plaintiff to this litigation and the court should not thereafter have dismissed the complaint for the reason assigned, i. e., that it was a suit against the state. ...”

The cases from other jurisdictions are to the same effect. See Stoner v. Rice, 121 Ind. 51, 22 N. E. 968 (1889), and Clark v. Barnard, 108 U. S. 436, 27 L Ed. 780, 2 S. Ct. 878 (1883).

Therefore, as we understand the law, the Commission as an agency of the State was under no obligation to appear and defend in Cause No. 3101, but when it voluntarily did so it became bound by the decree entered therein like any other private suitor. Consequently, we agree with the Chancellor that the decree in Cause No. 3101 is conclusive of the issues raised by the Commission’s complaint here in Cause No. 3440.

Affirmed.

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

John A. Fogleman,

Justice, dissenting. I respectfully submit that an improper application of the doctrine of estoppel to divest the state of its title to real estate is being made by the majority. It seems to me that courts should be particularly reluctant to invoke this doctrine against the state acting in its sovereign capacity. See 28 Am. Jur. 2d 782, et seq., §§ 122 and 123 and cases cited; also, see Annot. 1 A. L. R. 2d 338 (1948) and cases cited. See also United States v. Lee Wilson & Co., 214 F. 630 (E. D. Ark. 1914), aff’d, 227 F. 827 18th Cir. 1915), aff’d, 245 U. S. 24, 38 S. Ct. 21, 62 L. Ed. 128 (1917). We should also be especially hesitant to apply the doctrine to vest title to real property, at least in the absence of actual fraudulent representation, concealment or conduct amounting to fraud in law, especially when the result is divestiture of the state’s title. See 28 Am. Jur. 2d 723, Estoppel and Waiver, § 81, and cases cited. We recognized these principles when we refused to apply the doctrine of estoppel to bar the state from claiming title to an island, in spite of a positive statement by the State Land Commissioner that the state had no claim thereto. Rankin v. Chancery Court, 221 Ark. 110, 252 S. W. 2d 551, cert. denied, 345 U. S. 956, 73 S. Ct. 938, 97 L. Ed. 1377. We should exercise even greater restraint when we are called upon to apply estoppel based on disclaimer arising solely from inaction or omission of a state agency or official.

In considering the propriety of the chancery court action, we should keep in mind that it was taken by means of summary judgment in appellee’s favor. We must also keep in mind that the decree upon which appellee relies was rendered on September 17, 1959, one month after the entry of an order of dismissal as to the lands claimed by the Arkansas Game and Fish Commission in its answer. Consequently, this is not a situation in which a litigant can be said to be barred from attacking the validity of a decree under which he claims benefits, as was the case in Crain v. Foster, 230 Ark. 190, 322 S. W. 2d 443. Arkansas Game and Fish Commission does not, did not and has not claimed any benefit under that decree.

The Arkansas authorities cited in the majority opinion and those relied upon by the trial judge to invoke the doctrine of estoppel against the state are all cases in which the state had invoked the jurisdiction of the court as a plaintiff. I have been unable to find any case in which the state’s role has actually been that of a defendant. As a matter of fact, the state cannot become a defendant in its courts. It has uniformly been held that the state’s immunity cannot be waived, even by the General Assembly. Roesler v. Denton, 239 Ark. 462, 390 S. W. 2d 98; Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S. W. 2d 415. Not many years ago we held unconstitutional an act which would have permitted courts to appoint a receiver for the properties and facilities of a state park upon default in the payment of bonds issued by the State Publicity and Parks Commission and secured by revenues from the park. Fairbanks v. Sheffield, 226 Ark. 703, 292 S. W. 2d 82. There we said that the provisions of Art. 5, § 20, of our Constitution are mandatory and not subject to waiver by the General Assembly.

If the General Assembly could not authorize its game and fish commission to become a defendant in the case so that an adverse judgment would be binding, certainly neither the commission nor its attorney could do so. We have heretofore held that agents of the state cannot act in such a manner as to give a court jurisdiction to render a judgment against the state or to validate a judgment rendered. In Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129, the highway commission filed its petition to the county court to obtain right-of-way under Ark. Stat. Ann. § 76-510 (Repl. 1957). After the entry of an order condemning the land, certain landowners filed a claim for compensation in the county court against the county and highway commission. After that claim was allowed, in an amount less than that sought, the case was heard on the landowners’ appeal in the circuit court and judgment rendered there against both the county and the highway commission. The highway commission appealed. The court’s jurisdiction to render judgment against the state was not questioned at the trial in the circuit court or in the motion for new trial. The commission’s principal ground for reversal involved this question. We said:

We think the Commission’s position upon this issue must be upheld. Of course it is true that when the State voluntarily undertakes litigation and submits itself to the jurisdiction of the courts, it must be treated as other litigants and must be bound by the actions of its attorneys. But the point is that the State is not lawfully subject to liability in this case. The Palmer case and its predecessors have established the rule that in a proceeding such as this one, brought under Ark. Stats. 1947, § 76-510, the State is immune from liability; the sole responsibility rests upon the county, as a result of the county court’s action in granting the request that a right of way be provided at county expense. To permit the State’s attorneys to subject the sovereign to liability would be to ignore those fundamental principles which hold that the State’s immunity to suit cannot be waived, Arkansas State Highway Commission v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, that the State is not bound by the unauthorized acts of its agents, Woodward v. Campbell, 39 Ark. 580, and that the State is not estopped by an erroneous construction of law on the part of its representatives. Terminal Oil Co. v. McCarroll, 201 Ark. 830, 147 S. W. 2d 352. Since there is no authority in law for the rendition of this judgment against the State, it must be set aside.

If we applied the principles invoked in the McNeil case, we could not help saying that the action of the appellant and its attorneys cannot breathe life into an otherwise invalid judgment.

Following the decision in McNeil, we applied its precepts to deny the application of estoppel to a defense against a landowner’s claim for damages against the highway commission by reason of loss of his cattle and damage to crops because of their being trampled and eaten by the cattle in an action brought by the commission to acquire lands for right-of-way. Arkansas State Highway Commission v. Lasley, 239 Ark. 538, 390 S. W. 2d 443. Prior to the assertion of his claim for these damages, the landowner had filed a claim with the State Claims Commission. The commission filed a motion to dismiss on the basis of the pendency of the condemnation suit. The motion contained an allegation that the suit was filed for the purpose of paying all damages to which the landowner was entitled. It also included an allegation that the claimant was not placed in the position of suing the state. This claim was then placed upon the inactive docket with the statement that the claimant had an adequate remedy at law. We held that the claim constituted a suit against the state and that the state’s immunity was not waived, nor was the state estopped by these unauthorized acts of its representatives.

These two rather recent cases constitute very close parallels to the situation at hand, and I submit that they should be followed in this case.

Although it appears to me from the record before us that the confirmation decree and the tax sale under which appellee claims are void, I would reverse the summary judgment and remand the cáse for further proceedings to determine the remaining issues.

Harris, C. J., and Brown, J., join in this dissent.

      There can be no doubt that appellant is “the state” insofar as the questions involved here are concerned. Pitcock v. State, 91 Ark. 527, 121 S. W. 742; State v. University of Arkansas Board of Trustees, 241 Ark. 399, 407 S. W. 2d 916.

      The lads can best be fully understood by reading Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S. W. 2d 772, 'to whidireference is made in the McNeil opinion.


author: Frank Holt, Justice.

text:
    Dorothy Evelyn LOMAX v. The STATE of Arkansas
    5-5478
    452 S. W. 2d 646
    Opinion delivered April 13, 1970

      Harkness, Friedman if Kusin, for appellant.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by information with the crime of murder in the first degree. A jury returned a verdict of guilty of voluntary manslaughter and assessed tne appellant's punishment at seven years in the penitentiary. From the judgment upon that verdict comes this appeal. Although sixteen points of error are assigned for reversal, those that are argued can be grouped into three basic issues.

I

The name of the victim’s treating physician was not included among the witnesses endorsed on the information. The listing of the State’s witnesses was in response to appellant’s request. The attorney for the appellant was apprised, however, by the prosecuting attorney that the State intended to call this physician as a witness and that his identity had not as yet been determined. On the morning of the trial the State named the treating physician as a witness, in addition to those listed on the information. Appellant thereupon moved for a continuance based upon surprise. Appellant assigns as error the denial of this motion. We do not agree.

Appellant relies upon Ark. Stat. Ann. § 43-1004 (Repl. 1964) which requires upon an indictment the endorsement of the names of witnesses who appear before a grand jury. Assuming, without deciding, that this statute is applicable to an information, we have said that this requirement is merely directory and not mandatory. Baker v. State, 215 Ark. 851, 223 S. W. 2d 809 (1949); Thomas v. State, 161 Ark. 644, 257 S. W. 376 (1924); Taylor v. State, 186 Ark. 162, 52 S. W. 2d 961 (1932); Steel v. State, (Feb. 10, 1969) 436 S. W. 2d 800. The failure by the State to supply the defendant with the names of its witnesses “does not affect the validity of the trial unless the accused can show that he has been in some way misled to his prejudice and had no opportunity to meet the testimony given by the witness.” Thomas v. State, supra. In the case at bar, when appellant made a request for the names of the State’s witnesses prior to trial she was made aware by the prosecuting attorney that the treating physician, whose name was then unknown, would be called as a witness for the prosecution. Thus, the appellant had an equal “opportunity” with the State to determine prior to trial the identity of the treating physician and thereby “to meet [his] testimony” if necessary. It cannot be said therefore, that appellant was misled to her prejudice or surprise. Norton v. State, 237 Ark. 783, 376 S. W. 2d 267 (1964). Nor can we agree with appellant that the trial court abused its discretion in refusing to grant appellant’s motion for a continuance based upon the doctor being a surprise witness. Jackson v. State, 245 Ark. 331, 432 S. W. 2d 876 (1968). In fact, the trial court offered to continue the trial of the cáse for a reasonable time to permit appellant to secure and present evidence to contradict the doctor’s testimony. The offer was declined.

II

Appellant next argues that the trial court erred in instructing the jury to disregard a statement made by the decedent to his treating physician in which statement the victim admitted provoking the incident that led to his death. The appellant argues that this statement was a dying declaration and, therefore, admissible as an exception to the hearsay rule. The victim of the alleged offense lived about a month before he succumbed to a gunshot wound. The physician testified that the victim was not dying at the time the statement was made, nor did it appear that he was under the impression that his death was imminent. Apprehension of immediate death is, of course, a condition of the admissibility of a dying declaration. We agree that the trial court was warranted in telling the jury that the appellant had not demonstrated that the deceased’s statement was made in the belief of impending death and without hope of recovery. Comer v. State, 212 Ark. 66, 204 S. W. 2d 875 (1948); Wigmore, Vol. V, § 1451. Yet another answer to this contention is the absence of any objection to this ruling by the trial court. We have consistently required that an objection must be made, an exception saved and the point preserved or carried forward in a motion for a new trial. Keese and Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542 (1954); Randall v. State, 239 Ark. 312, 389 S. W. 2d 229 (1965); Parrott v. State, (April 14, 1969) 439 S. W. 2d 924.

III

Finally, it is urged that error was committed when the trial courc ordered one of appellant’s witnesses to be removed to a hospital for a blood test and thereafter permitted the doctor who administered this test to testify as to the witness’s state of intoxication while she .was on the witness stand.

Appellant called Valdean Hamilton, who was present with appellant On the night of the shooting, as a witness. On cross-examination she was asked whether she had been drinking on the day of the trial. She answered that she had not. At that point the prosecuting attorney stated to the court: “Your honor, at this time, I would like for an officer to check this young lady.” The court then asked the jury to rest for a moment and removed the proceedings into chambers. After an in-chambers proceeding in which the witness repeated her denial of drinking during the day and two officers of the court testified that the odor of alcohol about the witness was noticeable to them during the trial, the court ordered that she be taken to the hospital for a blood test. Two reasons motivated this order: first as a matter of possible impeachment and, second, as a possible basis for contempt of court. It is undisputed that the witness had drunk rather heavily the night before. After the tests were made, the examining doctor was permitted to testify as a rebuttal witness for the State, On direct examination he stated that her blood alcohol content was .056 per cent per weight which would indicate imbibing of alcohol within the past few hours. He further testified that this percentage constituted “a sub-clinical intoxication. It can be detected by sensitive tests, and by chemical tests, but usually they do not show — most of them do not show very much obvious change.” On cross-examination he stated, with reference to this percentage, that: “It does reduce a person’s inhibitions, and an inhibition would be his conscience. A person might tell a lie with less com-' punction with this amount of alcohol than normal.”

If the extrinsic testimonial evidence by the doctor as to the witness’s state of intoxication would have been offered to impeach her statement that she had had nothing to drink on the day she testified, such evidence would have been inadmissible because the issue of her intoxication is clearly collateral to the issues of the case. On the other hand, the authorities are in agreement that extrinsic evidence may be introduced to show a witness’s state of intoxication in order to demonstrate a defect in capacity to observe or ,recollect and, thereby, to attack generally the witness’s credibility. McCormick, Law of Evidence, § 45; Wigmore, Vol. Ill, § 933; 98 C. J. S. Witnesses, § 461. Although there are no cases in this jurisdiction directly in point, the following is meaningfully analogous. In Thrash v. State, 146 Ark. 547, 226 S. W. 130 (1920), the court considered the admissibility of extrinsic evidence as to the witness’s mental state at the time of testifying. We said:

“If a party knows before the trial that a witness is incompetent on account of his mental condition, the objection must be made before the witness has given any testimony, and if the objection appears at the trial it must be interposed as soon as it becomes known. Mell v. State, 133 Ark. 197. It is admissible, however, in order to affect the credibility of the witness, to prove that he is subject to insane delusions or that his mind and memory have become impaired by disease or other causes.”

It is said in Wigmore, supra, that: “Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect, or to communicate; and is therefore admissible to impeach.” Here, the doctor testified that the amount of alcohol found in the witness’s blood might cause a person to “* * * tell a lie with less compunction * * * than normal.” We are not here deciding that .056 per cent of alcohol per weight of blood is the demarcation point of permissible impeachment; we simply hold that the totality of the evidence presented as to this witness’s state of intoxication justified an attack on her capacity to testify and on her general credibility.

Nor do we agree with the appellant that the removal of the proceedings into chambers constituted a comment by the court upon the evidence or that the subsequent ordering of the blood test was prejudicial to her. Appellant directs us to Lile v. State, 186 Ark. 483, 54 S. W. 2d 293 (1932); Crosby v. State, 154 Ark. 20, 241 S. W. 380 (1922); and Martin v. State, 130 Ark. 442, 197 S. W. 861 (1917). In the first two cases, the respective trial judge ordered the arrest for perjury, in the presence of the jury, of a witness on the stand. This, in effect, was tantamount to a statement by the trial court to the jury that these witnesses were not to be believed. In the latter case, the trial judge ordered, again in the presence of the jury, the arrest of a witness based upon criminal admissions which he made during the course of his testimony. In the instant case, however, when the prosecuting attorney suggested that the witness be “checked,” the trial judge made no comment except to recess the trial and then removed the proceedings into chambers and out of the presence of the jury. He thereby carefully avoided any undue prejudice to the defendant. This action certainly does not amount to a comment upon the evidence and was, in fact, done for appellant’s benefit. Although the better procedure would have been to ask for an examination of the witness out of the hearing of the jury, we find no prejudicial result to the defendant inasmuch as it developed that the witness was properly subject to impeachment and the jury was admonished by the trial court to consider the doctor’s testimony only as affecting the competency and credibility of the witness.

Affirmed.