text:
    Cox v. Tillman
    5-3476
    386 S. W. 2d 939
    Opinion delivered February 22, 1965.

      Jeff Mobley and William B. Bulloch, for appellant.

      McMath, Leatherman, Woods £ Youngdahl, for appellee.
   Carleton Harris, Chief Justice.

On June 26, 1961, at Russellville, appellee, Wanda Lee Tillman, was a passenger in an automobile operated by her husband, appellee Roy Tillman, Jr. While stopped at an intersection, the automobile was struck in the rear by a car driven by appellant, Mrs. A. B. Cox. Subsequently, Mrs. Tillman instituted for alleged injuries sustained, and Mr. Tillman sought damages for loss of consortium. On trial, the jury returned a verdict for Mrs. Tillman in the amount of $7,500.00, and for Mr. Tillman in the amount of $1,500.00. From the judgments entered thereon, appellant brings this appeal.

Only one point is argued for reversal, vis, that there was no substantial evidence to support the jury’s verdicts, and the judgments should accordingly be reversed and the cause dismissed.

According to appellant’s evidence, Mrs. Cox drove up behind the Tillman car, which had stopped at a stop sign, and she (Mrs. Cox) came to a complete stop herself. She testified that she looked around t'o the back seat to check on her two young sons, who were asleep, and that, apparently, her foot slightly released the brake, and the ear started “creeping” and struck the rear of the Tillman vehicle. Mrs. Cox testified that she got out of the car, and looked at the Tillman rear bumper, but could find no damage; neither was there damage to the front of the Cox vehicle. She stated that Mr. Tillman said that no one was hurt, and that Mrs. Tillman made no complaint of injury.

Vernon Ferguson, a patrolman with the Russellville Police Department, testified that there was minor damage to each vehicle, but tíiat no report was made of the occurrence, since the accident was minor, and the parties agreed that they could settle it among themselves. He stated that there was slight damage to the Tillman bumper. Proof established that the bumper damage was repaired at a cost of approximately $43.00.

Since the only question before us is whether the verdict was supported by substantial evidence, there is no need, of course, to set out in detail evidence offered by appellant, for we are only concerned with whether the evidence offered by appellees, and upon which the verdict was based, was of a substantial nature.

We think the evidence was more adequate to present a jury question. Mrs. Tillman testified that the impact from the rear was unexpected, and that a few minutes after the occurrence she suffered a severe headache, which started in the neck and went up to the back of the head; that she took aspirin for about a week, but the headache continued to grow worse, and she then consulted Dr. Lane at Dover, who treated her approximately two weeks. This treatment consisted of heat and medication. Thereafter, she consulted Dr. Balkman, whose treatment consisted of physical therapy, message, and heat. Later, ultrasonic treatment was given by Dr. David Williams, who also prescribed a cervical collar, which she wore about five months. She was then referred to an orthopedic surgeon, Dr. Thomas M. Durham of Hot Springs, whose testimony will be subsequently discussed. Mrs. Tillman testified as to extreme nervousness, tenseness, intense pain, and dizzy spells, which caused a loss of the sense of balance. She stated that none of these symptoms were present prior to the alleged injury complained of.

Mr. Tillman verified that his wife had suffered intense pain, and testified that she was placed in the hospital by Dr. Durham, and remained there for three weeks; that she went back a second time for two weeks, and returned to the hospital a third time for another week. He testified as to the hospital, medical, and drug bills, and also mentioned that ‘it had been necessary to employ extra help for the house work. These bills totalled $3,052.91. He- said that his wife remained in traction for three or four months.

Dr. David Williams testified that on examining Mrs. Tillman, he found a considerable tenderness along the cervical spine, and a considerable .amount of muscle spasm. The doctor treated her with muscle relaxants, pain relieving drugs, and ultra-sound equipment. After a few days, lie prescribed the cervical collar, which eliminates or relieves excessive motion in any direction, particularly forward and backward. He made a diagnosis of traumatic myositis, and testified that Mrs. Tillman had what is commonly known as a whiplash injury. Dr. Williams explained a whiplash injury as follows:

“Well, technically, it’s based upon the fact that an individual, whatever speed they may be traveling, whether it’s parked, moving or whatever it is, are struck from behind for the most part. Actually, it is the opinion of some at least that injuries of similar nature could be sustained, not necessarily from behind, but from any direction, but that moving force; that is, moving at a speed, in excess of that which individual is, whether he’s sitting still, is struck from behind.”
“ * # * it is very obvious that any time an individual is sitting or occupying a position wherein they are struck from behind by any moving object that carries impact to any degree at a rate of speed in excess of that which, the person is traveling, could create a similar injury.”

He testified that Mrs. Tillman’s progress, up until the time of prescribing the cervical collar, was very discouraging.

Dr. Thomas M. Durham, to whom Dr. Williams referred Mrs. Tillman, by deposition, testified that, at the first examination, he found that appellee had suffered a loss of approximately twenty percent of motion in the neck in all planes, and some paravertebral muscle tightness. He stated that the symptoms which Mrs. Tillman indicated, and his findings, were consistent with a rear end type collision. Testifying further, the doctor stated that Mrs. Tillman was admitted to St. Joseph’s Hospital on August 30, 1961, and remained there through September 20, 1961; that she received cervical traction for about eight hours a day, was given physical therapy treatment twice daily, and drug medication. He next saw her on September 26 in his office, and also on October 10, and on this occasion, although noting some improvement,' found there was more tightness on the right side of her neck. Her range of motion was improved, except for bending to the right side. On October 24, she was again examined, and because of the increase in symptoms along the right side of the neck and shoulders, was readmitted to the hospital. She was thereafter discharged on November 6, and was again examined on November 20, at which time she showed improvement. Mrs. Tillman was subsequently examined on December 20, and was next seen in the office on January 22, 1962. On this date, she was re-hospitalized because of a further flare-up. Appellee remained in the hospital until February 1,. 1962, and again visited Dr. Durham at his office on February 16. On that date, her neck complaints had subsided, though she was still wearing the collar most of the time. Because of pain in the upper part of her back, a tailor-type corset was prescribed. This corset extends from the hips to the shoulders. Straps applied around the shoulders tend to hold the patient erect and prevent flexion at the upper part of the back. Further examinations were made on March 16, April 25, and June 6. The range of motion of the neck was not entirely normal, but definitely improved, and she continued to wear the brace. Mrs. Tillman complained of pains in the left breast area, and it was the opinion of Dr. Durham that this pain was casually connected to her cervical spine injury. She continued wearing’ the corset until August 8, 1962, at which time, the doctor felt, for the first time, that her neck motion was essentially normal. On cross-examination, Dr. Durham testified that he felt the long period of illness and of convalescence of the patient was entirely consistent with a rear end collision in which the damage to the vehicle would range somewhere from $20.00 to $.40.00. According to Dr. Durham’s evaluation, appellee had a five percent disability to the body as a whole.

The deposition of Dr. John M. Hundley of Little Rock was introduced on behalf of appellant, and he likewise found tenderness in the neck, and tenderness of the dorsal spine throughout the upper dorsal spine area. Extending or bending the neck backward was 75% normal, accompanied by pain in the upper part of the neck. Dr. Hundley stated that he found no objective evidence of an injury, which would give rise to the condition of the patient, but he considered her complaints as being real; it was his view that the pain complained of could be due to a congenital condition of Mrs. Tillman’s spine. He said that she was very tense and nervous, and was rather “jumpy.” On cross-examination, the doctor stated that a parked automobile struck in the rear by another vehicle can produce an injury to the cervical spine, sometimes referred to as a whiplash injury, of the passenger in the stoped car. He also testified that there is not necessarily any relationship between the injury a patient receives and the speed of the vehicle if the patient does not know that the car is going to be hit; likewise, the doctor said there is no particular relationship between the damage to the vehicle and the injury to the patient. According to Hundley, some symptoms of such an injury may be delayed for quite some period of time.

Appellant’s contention is that the impact of her car against the Tillman car was too slight to have caused the injuries complained of, and appellant feels that Mrs. Tillman’s condition was not due to this occurrance. However, it will he noted that both Dr. Durham and the physician whose testimony was offered by appellant (Dr. Hundley) testified that the type of collision described could cause a whiplash injury of the severity sustained. Whether the injury was received at the time that the Cox car struck the Tillman vehicle was entirely a question for the jury to determine, and there was ample evidence to sustain the jury verdict.

Affirmed.

George Rose Smith, J., not participating.

       This particular item was listed at $391.75.


source: Caselaw Access Project

author: Ed. P. McFaddin, Associate Justice.

license: Public Domain

text:
    McCormick v. Sexton
    5-3429
    386 S. W. 2d 930
    Opinion delivered February 22, 1965.

      Thomas L. Cushion and Wright, Lindsey, Jennings, Lester and Bhults, for appellant.

      Phillip Mans our, Greenville, Miss., and William H. Dreno and John P. Gibson, for appellee.
   Ed. P. McFaddin, Associate Justice.

Although there were a number of other parties in the Trial Court, only-five are before us on this appeal. The appellants are Walter D. McCormick, and his employer, Ramsey Towing Company. The appellees are Emory D. Sexton, Mrs. Mary Allday, and Mrs. Martha Allday.

Emory D. Sexton, appellee, driving his Buick automobile, had crossed the Greenville Bridge over the Mississippi River, and was proceeding toward Lake Village, Arkansas. His wife was in the car with him. "Walter D. McCormick, driving a Chevrolet station wagon (and admittedly on a mission for Ramsey Towing* Company) was following the Sexton Buick. He was alone. James D. Allday, driving the Plymouth of his daughter-in-law, Mrs. Allday, was proceeding from Lake Village to cross the Greenville Bridge; and he was accompanied by his daughter-in-law, Mrs. Mary L. Allday. There is a dispute as to the sequence of events resulting in the traffic mishap. One party contends that the Plymouth driven by Allday crossed the center line and collided with the Buick driven by Sexton, and that the front of the Chevrolet driven by McCormick subsequently struck the rear of the Buick. Another party contends that the Chevrolet driven by McCormick first struck the rear of the Buick and caused it to cross the -center line and strike .the Plymouth. At all events, there was a three-car traffic mishap in which Mr. Allday and Mrs. Sexton were killed and damages suffered by some of the other parties. Then this litigation began.

Mr. Sexton, driver of the Buick, filed action against Mr. McCormick, driver of the Chevrolet; also against the estate of James D. Allclay, driver of the Plymouth, and Mary Allday, owner of the Plymouth. Sexton sought damages for the death of his wife, for his own personal injuries, and. for property damages. He alleged that Allday, driver of the Plymouth, crossed the center line and struck the Sexton Buick, and that McCormick in the Chevrolet simultaneously struck the rear of the Sexton Buick. Thus, Sexton claimed that there was concurrent negligence by McCormick and Allday, and sought recovery from both McCormick and the estate of Allday.

Mary L. Allday denied all negligence and cross complained against Walter D. McCormick and Ramsey Towing Company, claiming: (a) that Walter D. McCormick was at the time and place of the mishap, a servant and in the scope of the employment of the Ramsey Towing Company; (b) that Walter D. McCormick “. . carelessly and negligently and with great force and violence struck the rear of the Buick (Sexton automobile) and knocked it into the path of the (Plymouth) vehicle driven and operated by James D. Allday.” Joining in the said cross complaint against McCormick and the Ramsey Towing Company were Mrs. Martha Allday, widow of James D. Allday, and also the children of James D. Allday, all of ■them seeking damages against McCormick and the Ramsey Towing Company.

Walter D. McCormick answered the complaint of Sexton with a general denial; and joined with Ramsey Towing Company in answering the cross complaint of the Alldays with (inter alia) general denial of all negligence. In the course of the proceedings it was shown that there was no administration on the estate of James D. Allday, and for that reason all claims for or against his estate were dropped.

Trial of the three-cornered lawsuit to a jury resulted in verdicts and judgment thereon as follows:

For Emory D. Sexton against W. D. McCormick........................................................................$90,000.00
For Mrs. Martha Allday against W. D. McCormick and Ramsey Towing Company ...........................................................................$15,000.00
For Mrs. Mary L. Allday against Walter D. McCormick and Ramsey Towing Company ...........................................................................$ 300.00

From the said judgment entered on these verdicts there is this appeal by Walter D. McCormick and Ramsey Towing Company in which five points are urged:

“I. Appellants were entitled to judgment in their favor and against all Appellees, as a matter of law.
“II. The court erred in admitting certain testimony that was in the nature of a reconstruction of the sequence of events from physical facts.
“III. The Court erred in admitting certain testimony on the issue of damages.
“IV. The Court erred in giving certain instructions requested by Appellees.
“V. The Court erred in refusing certain instructions requested by Appellants.”

I.

In the first point the appellants claim that there was no evidence of any negligence by Walter D. McCormick and that they were entitled to an instructed verdict in their favor. With this contention we cannot agree. Mr. Sexton testified that he would estimate that the Plymouth car was 50 to 75 yards in front of him when he was struck from the rear; and that at such time he lost consciousness. Thus, Mr. Sexton testified in the trial that his car was first struck from the rear by the McCormick car when the Allday Plymouth was still 50 to 75 yards in front of him. If that testimony be true then the first act of negligence was that of McCormick. The evidence of other witnesses tended to show that the Sexton car, struck on the right rear, was projected forward to the left. The pictures of the damage to the left front position of the McCormick car and the light rear of the Sexton car show the force of the impact. Whether the collision occurred in the traffic lane of the Allday car or in the traffic lane of the Sexton car, was a disputed issue. There was testimony both ways. But the effect of Sexton’s testimony was that the negligence of McCormick in striking the ear from the rear triggered the entire collision. With such evidence in the record, the Trial Court was correct in refusing to give an instructed verdict for McCormick and the Towing Company. The case at bar differs from that of the Superior Forwarding Company case in that Sexton’s testimony definitely related to the vehicle following him. Sexton’s testimony was bitterly assailed; but it was for the jury, and not the Court, to decide as to the weight and effect of such testimony. The Trial Court was correct in refusing to give an instructed verdict for McCormick and the Towing Company.

II.

In their second point the appellants claim the Court committed error in allowing certain testimony to go to the jury from the witnesses, H. L. McKensey and Eoy Hogg. We find no merit in this contention as regards either of these witnesses; but in view of the likelihood of a new trial (because of our holding on Point IV) we discuss the evidence.

■ (a) II. L. McKensey (called as a witness by Sexton) testified that from 1933 to 1954 he was employed in a body shop repairing wrecked ears; that from 1954 to the present he had been employed as an automobile damage appraiser; that from 1933 to the present he has examined about 800 damaged cars each year; that he examined the damages to the Sexton Buick; that the damage to the rear end of the Buick was $653.97 and the damage to the front end was $1800.00; that he inspected the interior of the Sexton car; and "that he found the front seat torn loose and the front seat track bent backwards. Then he was allowed to testify as an expert that such damage to the front seat would be caused by a blow from the rear of the car and not from a blow to the front. The objection goes to this testimony as an opinion expert, and appellants claim that such opinion evidence was improper under these cases: Casey v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137; Henshaw v. Henderson, 235 Ark. 130, 359 S. W. 2d 436; Waters v. Coleman, 235 Ark. 559, 361 S. W. 2d 268; and Reed v. Humphreys, 237 Ark. 315, 373 S. W. 2d 580. We disagree with the appellants. The cited cases are on an attempted reconstruction of the mishap by an expert when eyewitnesses are available. What the witness McKensey did was tó testify to the damage to the front seat and give his opinion as an expert as to what caused such damage. This was proper. Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79.

(b) The Avitness Eoy Hogg — a State Policeman called by Sexton — testified that he investigated the mishap and saw the vehicles at the scene. He was allowed to testify as to skid marks on the pavement and, over appellants’ objection, was allowed to say that some of the skid marks were made by a flat tire. It had been shown that one of the tires on appellants’ vehicle had a blowout in the mishap. It was shown that this officer had been investigating traffic collisions for five years and had attended various schools of instruction on such matters. His testimony was proper as to the skid marks and as to the difference in a mark made by a flat tire and that made by an inflated tire. What we have said about the testimony of the witness McKensey applies also to ■the witness Hogg.

III.

The appellants’ third point relates to admitting testimony on the matter of damages. Since we are reversing (because of Point IV) it is well that we point out that Mr. Sexton could recover for the funeral expenses he paid for his wife, since it is the duty of the husband to pay such expenses. (Beverly v. Nance, 145 Ark. 589, 224 S. W. 956; Burry v. Brittain, 223 Ark. 613, 268 S. W. 2d 12; and see annotation in 82 A.L.R. 2d p. 873: “Liability for funeral expenses of married women.”) But Mrs. Allday could not recover for the part of the funeral bill and monument expense which she paid for Mr. Allday, because it is not the duty of the wife to pay such expenses. Such expenses for Allday’s estate could be recovered only by an administrator. (Ry. Co. v. Sweet, 57 Ark. 287, 21 S. W. 587; see also annotation in 57 A.L.ft. 400: “Wife’s liability for husband’s funeral expenses”; and see 27 Am. Jur. ij. 59: “Husband and wife” § 460.)

IV.

In their fourth point appellants object to instructions; and we find one instruction that was fatally erroneous. It was the Instruction No. 13 requested by appellee Sexton and given by the Court. We copy it:

‘ ‘ The court instructs the jury that as a matter of law in this case, Emory D. Sexton, plaintiff, was not negligent nor at fault nor to blame for his injuries; and if you believe from a preponderance of the evidence in this case that his injuries were due to the negligence of both Walter D. McCormick and James D. Allday, deceased, then it is your sworn duty to find for plaintiff against Walter D. McCormick for the whole injury, even though you may believe from the evidence that the negligence of either James D. Allday of Walter D. McCormick was greater than that of the other. ’ ’

In this instruction the Court told the jury that Sexton was free of negligence. That instruction was entirely erroneous. McCormick testified that he did not hit the Sexton Buick until after Sexton’s car had collided witli the Allday car. The witness Kolb testified that he saw Sexton’s car cross the center line and into the traffic lane of the Plymouth car. The jury could have inferred from the testimony of Kolb that Sexton’s car crossed the center line before the collision. With such evidence in the record, it should have been left to the jury to say whether Sexton, as the driver of the Buick, was guilty or negligence in crossing the center line before the McCormick car struck him.

As we have heretofore said, there was a dispute as to exactly where the collision took place. There were skid marks testified to by the witness Hogg from which the jury could have found that the traffic collision occurred in the lane of the Plymouth car; and there was the testimony of Kolb from which the jury could have found that the Sexton vehicle crossed over the center line into the traffic lane of the Allday car before the McCormick car struck the Sexton car. Certainly with the testimony in conflict, the Trial Court should have refused to give an instruction that Sexton was entirely free of all negligence. His negligence was a jury question, just like the negligence of McCormick was a jury question; and this Instruction No. 13 necessitates a reversal of this cause.

Since the cause is reversed and will be remanded for a new trial, we also think it proper to call attention to the language in the instruction which says, “. . it is your sworn duty to find . .” The use of words “sworn duty” should not be contained in an instruction like this. The jury had been sworn according to law. A court can remind them of their duties in a separate instruction; but to emphasize in an instruction like this that it is the jury’s “sworn duty” to find for the plaintiff, is to use words that tend to indicate the court has a deep feeling in the matter. It would unduly prolong this Opinion to discuss the other assignments concerning other instructions given or refused. We believe from what we have said herein that on a retrial instructions may be framed so that any errors, if there by any, regarding such instructions, are not likely to occur.

For the error of the Court in giving the Instruction No. 13, the judgment is reversed and the cause is remanded.

       The name of the company was originally McCormiek-Ramsey Towing Company, but the name was changed during the course of the litigation and for brevity we use the name as it existed at the time of the trial below.

       The exact allegation made by Sexton was: “. . and simultaneously with the Plymouth automobile striking his automobile from the front, the 1962 Chevrolet following behind plaintiff struck plaintiff’s automobile from the rear, demolishing plaintiff’s automobile.” The allegation as to McCormick’s negligence was: “Walter D. McCormick was negligent in following too close behind the plaintiff’s automobile, contrary to law; was negligent in failing to keep a proper lookout; was negligent in failing to keep his automobile under proper control, and failing to yield the right-of-way to vehicles in front.”

       There was an attempted removal to the United States District Court for the Eastern District of Arkansas; but that tribunal ordered a remand to the Chicot Circuit Court.

       See Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290.


author: George Rose Smith, J.

text:
    Riley v. Johnson.
    5-3479
    386 S. W. 2d 942
    Opinion delivered February 22, 1965

      Pearson & Pearson, for appellant.

      Dickson, Putman, Millwee & Davis, -for appellee.
   George Rose Smith, J.

This is an action by the appellant, Paul Riley, for personal injuries and property damage sustained when his station wagon, which was being driven by his brother Guy, collided with the appellee’s Car. Before trial the defendant below took the discovery depositions of the Riley brothers and, on the basis of the facts so elicited, filed a motion for a summary judgment for the defendant. In reviewing such a judgment for the defendant. In reviewing snch a judgment we consider the testimony in the light most favorable to the party resisting the motion. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89.

This collision took place at night in the rain upon a rural highway. The defendant, intending to enter the highway, had stopped his car in his driveway a few feet from the edge of the pavement. The defendant’s bright lights were burning as the Bileys approached him. Owing to a curve in the road Guy Biley, who was blinded by the lights thought that, the other vehicle was moving toward him. Guy dimmed his own lights as a signal for the other driver to dim his, but the defendant ignored this signal. Guy Biley, still thinking that he was meeting an oncoming car, kept edging to his right until he left the pavement. When he finally realized that the other vehicle was standing beside the highway it was too late for him to avoid the collision.

The trial judge, in granting the motion for a summary judgment, quite properly followed our decision in Wilson v. Holloway, 212 Ark. 878, 208 S. W. 2d 178. That case is directly in point. There the defendant’s truck was parked on the shoulder on the wrong side of the highway. The driver failed to dim his bright lights, which blinded the driver of the plaintiffs’ car and led him to believe that he was meeting an oncoming vehicle. That driver, as in the case at bar, kept inching to his right and eventually collided with the parked truck. We reversed a judgment for the plaintiffs and dismissed their case, holding as a matter of law that the driver of the truck was free from negligence.

Upon re-examining the question we are unwilling to adhere to the ruling in the Wilson case. In that opinion we made no reference to, and apparently overlooked, the statutory requirement that any lighted headlamps on a parked vehicle be dimmed. Ark. Stat. Ann. § 75-707 (Bepl. 1957). Similarly, one who operates a vehicle on a roadway or, as here, upon a shoulder adjacent thereto is required to dim his lights for oncoming traffic. § 75-714. The violation of such a stautory safety provision is evidence of negligence. Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906. This principle is applicable to statutes similar to the one involved here. Blashfield, Cyclopedia of Automobile Law & Practice (Perm. Ed), § 860.

In the case at bar a jury would be justified in finding from the testimony that the defendant’s failure to dim his lights was the proximate cause of the collision. We certainly cannot say that fair-minded men could not reach that conclusion. In fact, we consider it to be a matter of common knowledge that not infrequently traffic accidents are the result of a motorist’s having been blinded by the glare from bright headlights upon an approaching car. The Wilson case, to the extent that it is in conflict with this opinion, is disapproved.

Reversed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Smalley v. City of Fort Smith.
    5-3521
    386 S. W. 2d 944
    Opinion delivered February 22, 1965.

      Wayland Parker, Van Taylor and Donald Poe, for appellant.

      Warner, Warner, Ragon & Smith and Bradley D. Jess on, for appellee.
   Paul Ward, Associate Justice.

This appeal stems from an effort to annex 1,594.97 acres of land to the City of Fort Smith. The annexation petition was signed (and filed in the County Court of the Fort Smith District) by residents and landowners of the affected lands. The proceedings were pursuant to Arfe. Stat. Ann. § 19-301 et • seq. as amended (Eepl. 1956 and Supp. 1963). There is no dispute as to any procedural steps taken except as hereafter pointed out.

The County Court granted the annexation. In due time appellants (those opposing annexation) filed a petition in the Sebastian Circuit Court, Fort Smith District, contending the. proceeding was contrary to the State Consitution; that the petition was not signed by the required number of property owners; that the land was not suitable for city development; that the “area” was not contiguous to the City of Fort Smith; and, that the County Court erred in refusing to allow certain signers to withdraw their names from the petition. The Circuit Court, after a full hearing, dismissed the petition and affirmed the County Court’s order of annexation. On appeal appellants urged for a reversal several separate points which, we discuss below.

Appellants first contend “the petition must have a majority of the resident land owners in the area of annexation as well as a majority of the land owners who live in the Greenwood District”. Appellants then point out there is no showing that the petition is signed by a majority of the land owners residing in the affected area. We do not agree with appellants in this contention. Apparently this interpretation is based on the wording of § 79 of Act 1 of 1875. We point out, however, that that section of the act was changed by § 1 of Act 142 of 1953 [now Ark. Stat. Ann. § 19-301 (Eepl. 1956] which reads-as follows:

“Whenever a majority of the real estate owners of any part of a county, contiguous to and adjoining any city or incorporated town, shall desire to be annexed to such city or town, they may apply by petition in writing to the county court of the county in which said city or town is situated, and shall name the person or persons authorized to act on behalf of the petitioners.
“The ‘majority of real estate owners’ referred to above shall mean a majority of the total number of real estate owners in the area affected, provided such majority of the total number of owners shall own more than one-half of the acreage affected.”

It is undisputed that there are eight-one persons who own property and that forty-nine of them signed the petition. Eight of the signers asked to remove their names from the petition after it was filed in the County Court, but the court refused their request. This is also assigned as reversible error. We bypass a decision on the merits of that point because appellees still would have had sufficient names on the petition if the court had ruled otherwise.

In addition to other things appellees rely to some extent on Act 88 of 1963 (which plainly gives the Fort Smith District the express authority to annex the area here involved) to sustain the trial court, but appellants say said act is unconstitutional because it is local legislation and therefore violates Amendment 14 to the State Constitution. For two reasons we find no merit in appellants’ contention. We think the act makes a reasonable classification under our holding in LeMaire v. Henderson, 174 Ark. 298 S. W. 327. Also, legislation relating to the administration of justice is not local. See Waterman v. Hawkins, 75 Ark. 120, 86 S.W. 844, and Buzbee v. Hutton, 186 Ark. 134, 52 S.W. 2d 647.

It is also urged that the lands in the area are not suitable for annexation, but we cannot say there is not substantial evidence in the record to sustain the trial court’s ruling. Cantrell v. Vaughn, 228 202, 306 S. W. 2d 863 lays down the rule of substantial evidence. The record shows that much of the area has already been platted for city residential development — to the extent of some two thousand platted lots covering most of the acreage; that the Fort 'Smith School District has already acquired a tract for school purposes; that arrangements are being made for a shopping center and for churches. Appellants seem to complain that other developed areas nearby were not included — -but we know of no such statutory requirement. The annexation of any particular area depends on the facts of each individual case. The undisputed evidence shows the area here is contiguous to the City of Fort Smith.

The final question raised by appellants has given us some concern — that question is: Does Fort Smith (situated in the Fort Smith District of Sebastian County) have the constitutional right and power to annex property which lies wholly within the Greenwood District of Sebastian County?

Article 13, § 5 of the State Constitution reads:

“Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall be held as may be provided by law, each district paying its own expenses.” (Emphasis supplied.)

It seems to be appellants’ position that the present districts (Fort Smith District and Greenwood District) are to all intents and purposes the same as two separate and distinct counties, with the result that the courts of one district could have no jurisdiction over lands in the other district. We are not convinced, however, by that argument, for several reasons. It is noted the constitution does not compel Sebastian County to have two districts, nor does it specify the division line in case two districts were created. It is noted also that the preceding section of the constitution (§ 4) clearly indicates the legislature has the right to form new counties — i.e. to form new county lines. If it can change county lines it could undoubtedly change district lines — as by annexation. The case of Williams v. State, 160 Ark. 587, 255 S. W. 314, clearly shows that districts and counties are not alike in all respects. There it was held that Art. 2, § 10 of the Constitution providing that the venue in criminal prosecutions may be changed to any other county in the district, was not authority to change the venue from Greenwood District to the Fort Smith District (both in Sebastian County).

It is therefore our conclusion that the judgment of' the trial court must be and it is hereby affirmed.

Affirmed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I cannot reconcile the holding in the present case with our holding in Scaramuzza v. McLeod, 207 Ark. 855, 183 S. W. 2d 55, so I dissent from the present holding.

After referring to Act No. 88 of 1963, the Majority says-the question is this: “Does Fort Smith (situated in the Fort Smith District of Sebastian County) have the constitutional right and power to annex property which lies wholly within the Greenwood District of Sebastian County?” I think the Scaramuzza case shows that the correct answer to this question is the negative.

In the said Scaramuzza case we quoted Article 5, Section 13 of the Constitution of Arkansas, and of that constitutional provision we said:

"The effect of this provision of the Constitution is not to establish two county, probate and circuit courts in Sebastian county, but is rather to establish courts for each district of the county, so that the Ft. Smith District has a county court, and so also has the Greenwood District, and each has jurisdiction over its respective area. The county court of the Greenwood District has the same jurisdiction within that district that the county court of another county would have in that county,, and so also with the county court of the Ft. Smith District.”

If the annexation here involved is permitted (as the Majority is approving), either that portion of the City of Fort Smith involved in this annexation will still remain under the jurisdiction of the Greenwood District, or a portion of the Greenwood District will be taken away from it and given to the Fort Smith District. I think such result violates the holding in Scaramuzza v. McLeod, supra. At all events, under the order here affirmed, the Fort ¡Smith District is allowed to make an order affecting lands in the Greenwood District. I cannot agree with the Majority holding and therefore I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Lovegrove v. Hanna.
    5-3462
    386 S. W. 2d 947
    Opinion delivered February 22, 1965.

      Warner, Warner, Ragon & Smith, for appellant.

      Fines Batchelor, Jr., J. Sam Wood and David O. Partain, for appellee.
   Sam Robinson, Associate Justice.

The appellant in this case, R. L. Lovegrove, filed this action alleging that there is a public road adjacent to 40 acres of land he owns; that the appellees, Jewel C. and Verna M. Hanna, •have constructed a chain link'fence across- the road in question, and asked that they be enjoined from obstructing the road. Defendants defended on the theory that the road had been abandoned more than seven years prior to the filing of this action and was, therefore, no longer a public road. After considering all the evidence, the Chancellor held that the road in question had been abandoned and denied the petition for an injunction. The plaintiff, Lovegrove, has appealed.

Appellant bought the 40 acres in 1960. However, he had farmed it some 20 years ago. He does not live on the property. At one time there was a dirt road on the proporty now owned by appellee which had been acquired as a road by prescription. The road ran east and west along the south border of plaintiff’s 40 acres and at the southeast corner of appellant’s property the road turned south. It is about 90 feet from the southeast corner of appellant’s property south to Highway 64-71. There is a graded gravel road extending* along the west border of appellant’s property which connects with Highway 64-71.

Prior to 1930 Highway 64-71 had been constructed by the State. It is a hard surfaced road; it runs in the same general direction, but at somewhat of an angle, to the old dirt road which was adjacent to appellant’s property. The testimony on behalf of appellees is that the dirt road was abandoned after the construction of the hard surfaced road. The dirt road was acquired by prescription and was subject to abandonment. The court said in Meek v. Love, 197 Ark. 394, 122 S. W. 2d 606. quoting from McLain v. Keel, 135 Ark. 496, 205 S. W. 894: “. . . it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by non-user, and if so abandoned for a period of more than seven years, the right of the owner of the fee to re-enter and to thereby exclude the public from the use of the highway is restored. ’ ’

There was testimony on the part of appellant that there never has-been an abandonment, but we cannot say that the finding of the Chancellor that there has been an abandonment is contrary to the preponderance of the evidence.

In addition to the oral testimony in the case, there are numerous pictures which show that the old road has not been used in a long, long time. Morever, there was introduced in evidence a profile survey made by the Highway Department in 1951 when Highway 64-71 was widened. This survey shows all the details of -the land and improvements at the point where the old road was originally located and no road is shown on the 1951 plan of the survey. We are of the opinion that if the dirt road had been in existence in 1951 it would have been shown on the plan of the 1951 survey.

When the pictures and survey are considered in conjunction with all the oral testimony, we cannot say the Chancellor’s finding is contrary to a preponderance of the evidence.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Waldridge Hosiery Mill v. Hartford Steam Boiler Inspection & Ins. Co.
    5-3451
    386 S. W. 2d 938
    Opinion delivered February 22, 1965.

      John L. Anderson', for appellant.

      Roscopf <& Raff, for appellee.
   Jim Johnson, Associate Justice.

This is a suit on a business interruption insurance policy for loss sustained following damage to a boiler in a hosiery mill.

Appellee Hartford Steam Boiler - Inspection and Insurance Company insured the boiler of appellant Wald-ridge Hosiery Mill, Inc., against various kinds of damage. The policy in effect on October 19, 1959, contained a prevention of business endorsement insuring appellant against business production loss in the sum of $200 per day up to a limit of $20,000 should appellant’s business be shut down by virtue of, among other things, boiler explosions. Appellant’s boiler ivas damaged on October 19,1959, and the business was interrupted during repairs. Appellee denied liability under the policy endorsement claiming that the business loss was caused by fire, not explosion, citing two exclusions in thé endorsement as follows:

‘ ‘ The Company shall not be liable for payment for any prevention of business . . .
c. Resulting from fire concomitant with, or following an Accident or from the use of water or other means to extinguish fire;
d. Resulting from an Accident caused directly or indirectly by fire or from the use of water or other means to extinguish fires; .

Appellant filed suit in Phillips Circuit Court on October 10, 1961, praying judgment for $2,000 for ten days ’ business interruption, plus the statutory penalty and attorney’s fee. The trial court sitting as both judge and jury heard the case on March 6, 1964. The court found “that the damages and prevention of business experienced by appellant resulted from fire concomitant with and following an accident and is included within exclusion ‘C’ under the terms and conditions of the policy sued on. ’ ’ From judgment dismissing its complaint, appellant has prosecuted this appeal.

For reversal appellant contends that the policy of insurance was in full force and effect at the time of the time of the explosion of the boiler and appellee failed to prove that it was of such a nature as to come -within the exclusions or exceptions of the policy.

This being an appeal from circuit court (as opposed to chancery) our function on • appeal is to determine whether there is substantial evidence to support the judgment of the trial court. The parties stipulated that the policy sued on was.in full force and effect and a specimen copy was introduced. The question here then is whether there is substantial evidence to support the trial court’s finding that appellant’s' business interruption was caused by fire, which was excluded by the policy, rather than by explosion, which was covered.

There were three witnesses in this case. Appellant’s president, who is long experienced in the plumbing and heating business, and the head of the firm that repaired appellant’s boiler both testified on behalf of appellant that'the damage was caused by explosion. A state boiler inspector who has been in appellee’s employ for 28 years testified on behalf of appellee that the damage was caused by fire. The latter two witnesses were both unusually well qualified in this field and obviously respected each other’s professional opinion, although they reached opposite conclusions. The testimony is well balanced and while, where we sitting as a jury we might have reached a different conclusion, we cannot say that the judgment of the trial court, who saw, heard and questioned these witnesses, is not supported by substantial evidence. Missouri Pacific Transportation Company v. Sharp, 194 Ark. 405, 108 S. W. 2d 579.

Affirmed.


text:
    Petty v. City of Pine Bluff.
    5-3459
    386 S. W. 2d 935
    Opinion delivered February 22, 1965

      McMath, Leatherman, Woocls S Youngdahl, by John P. Sizemore, for appellant.

      George N. Holmes, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from suspension of a firemen for moving his residence outside the city which employed him.

Appellant Bobby Petty was employed by appellee City of Pine Bluff as a fireman in 1951. In 1952 an ordinance requiring all city police and fire department employees to reside within the city limits, without exception, was repealed and the city council passed ordinance § 3133 requiring that all members of these departments “must be residents of the city or live within such close proximity of the city as to not interfere with the proper performance of their duties.” The ordinance also provided that in the case of non-resident employees of the city, the department chief (police or fire) shall “indicate by letter whether in his opinion the employee lives within such proximity as to be able to properly perform his duties.”

On June 1, 1963, appellant wrote the chairman of the Pine Bluff Civil Service Commission, with a copy to Fire Chief Edwards, stating in essence that it was an economic necessity for him to sell his house in the city and move into his house at Sulphur Springs, six miles outside the city limits. The letter asked for the position of the commission and the fire department on such a move, and for an exception to the policy, if there was any policy against it. On September 18, 1963, the fire chief advised appellant by letter that he had violated ordinance No. 3133 and that his salary would be discontinued as of 6:00 P.M. that day, and further that appellant was also suspended indefinitely for insubordination for violating orders not to move out of the city limits. Appellant appealed his suspension to the Civil Service Commission. A public hearing was held September 22, 1963, at which appellant was present with his counsel and introduced evidence and testimony on his behalf. On October 23, 1963, the Commission advised appellant that it sustained Fire Chief Edwards in his indefinite sustained Fire Chief Edwards in his indefinite suspension of appellant for violation of orders and denied his appeal.'

Appellant then appealed the Commission’s decision to the Jefferson Circuit Court. The case was heard before the court on the record before the Commission and in addition testimony of various witnesses on behalf of appellant and appellee. The circuit court in its judgment of July 1, 1964, sustained appellant’s suspension, from which appellant has prosecuted this appeal.

All the proceedings in this case have been conducted under the provisions of Ark. Stat. Ann. § 19-1605.1 (Supp. 1963) which sets out the procedure for discharge or reduction in rank of police and fireman under civil service. The original statute, enacted in 1949, provided for appeal from the Board of Civil Service Commissioners to the Circuit Court, and trial before the court would be on the transcript of the civil service commission hearing and “such other evidence that the parties desire to introduce, provided same is legal, relevant and competent.” In considering this statute in 1951 in City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750, this court said that ‘ ‘ the Legislature . . . intended to provide for a de novo hearing by the circuit court” and concluded this statement with: “and that this court [the Supreme Court] should hear the matter de novo on the entire record before the circuit court, as in chancery cases.”

The Legislature amended this statute in 1959, part of the amendment reading as follows:

“The Circuit Court shall review the Commission’s decision on the record and may in addition hear testimony or allow the introduction of any further evidence upon the request of either the City or the employee, provided such testimony or evidence be competent and otherwise admissible. A right of appeal is also given from any action from the Circuit Court to the Supreme Court of the State of Arkansas, and such appeal shall be governed by the rules of procedure now provided by law for appeals from the Circuit Court to the Supreme Court. ’ ’

In 1960 the question of right of trial de novo in circuit court again arose in Campbell v. City of Hot Springs, 232 Ark. 878, 314 S. W. 2d 225, and in affirming this right this court quoted with approval from City of Little Rock v. Newcomb, supra, including the phrase, quoted above, “and that this court should hear the matter de novo ...” without further discussion. Although the question of right of trial de novo in the Supreme. Court had not been directly raised, this court in City of Little Rock v. Tucker, 234 Ark. 35, 350 S. W. 2d 531 (1961), cited City of Little Rock v. Newcomb, supra,, as authority for “on an appeal from the decision of the circuit court, the matter is presented here de novo on the entire record and is viewed as chancery cases are here,” and recently in McNeal v. Civil Serv. Comm. of City of Little Rock, 237 Ark. 301, 372 S. W. 2d 614 (1963), we stated: “In a proceeding of this kind we review the evidence de novo, as in chancery. City of Little Rock v. Tucker, [supra].Despite this dista, the question of right of trial de novo in the Supreme Court in such cases has been squarely presented here for the first time since the 1949 law was amended. In the tradition of our efforts to clarify ambiguities as they are discovered, suffice it to say the 1959 amendment to § 19-1605.1 (supra) continues to provide for trial de novo in circuit court but not in the Supreme Court. On appeals from circuit court, the Supreme Court determines whether the verdict or trial court’s finding of fact is sustained by substantial evidence. Duty v. Gunter, 231 Ark. 385, 331 S. W. 2d 111. The words of the statute, “such appeal [to this court] shall be governed by the rules of procedure now provided by law for appeals from the Circuit Court to the Supreme Court,” permits no other interpretation.

Thus the question here presented is whether there is substantial evidence to support the de novo finding of the circuit court that appellant’s suspension should be sustained.

After passage of ordinance No. 3133 in 1952, the policy of the civic service commission was to permit exceptions to the ordinance where, in the opinion of the department chief, the nonresident employee lived close enough to properly perform his duties. Appellant began to build a home at Sulphur Springs and before it was completed in 1956, the commission reversed its policy and would allow no new exceptions to the ordinance. Appellant testified that at the time of this commission ruling, one of the other firemen was able to move into his unfinished house in time to be excepted, but that appellant’s house wasn’t far enough along for that. This admittedly was the start of appellant’s private feud with the city. Appellant completed his house after the ruling went into effect and, after giving the fire department his brother’s Pine Bluff address as his own in direct violation of a fire department rule, proceeded to move into the 'Sulphur Springs house and remained there until Fire Chief Alford discovered the fact and suspended him on May 1, 1959. This suspension was lifted by letter of May 7, 1959, on condition that appellant move back into the city, requiring him to notify the chief in writing the date and location he moved to, and expressly stipulating that: “You will also be required to remain in the City as long as you are employed in or on the Fire Department or until you are given permission to move out.” Appellant signed a statement that he was a resident of Pine Bluff as of that date, May 7th, and gave a Pine Bluff address. Appellant moved out to Sulphur Springs again in 1960. Chief Edwards testified that he learned this when he took office succeeding Chief Alford and wrote appellant on January 31, 1961 that he lived too far out: Appellant apparently moved back into the city again at that time.

Since Chief Edwards ’ promotion to that office, there is evidence that he has allowed no exceptions to the nonresident ordinance other than the two existing at the time he took office. (These two exceptions are firemen who live outside the city limits, one a block and the other a mile, and have for a number of years, one of them since before passage of the ordinance.) It is uncontroverted that Chief Edwards refused in 1961 to permit a firemen to move across the street, where the street was the city limit and the move would have placed him outside the city.

From the evidence presented, the requirements of the ordinance, the policy of the commission, the position of the chief and the determination of appellant to flout them all are quite clear. We cannot say there is no substantial evidence to support the finding of the circuit court sustaining appellant’s suspension for insubordination.

Affirmed.


author: Frank Holt, Associate Justice. Carleton Harris, Chief Justice Ed. F. McFaddin, Associate Justice

text:
    City of Little Rock v. Gardner.
    5-3452
    386 S. W. 2d 923
    Opinion delivered February 22, 1965.
    [Rehearing denied March 29, 1965]

      Joseph G. Kemp, City Attorney, by John B. Plegge and Perry V. Whitmore, Assistant City Attorneys, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, by James B. Howard, for appellee.
   Frank Holt, Associate Justice.

The appellee owns and lives on her property at 1723 Broadway Street in Little Rock, Arkansas. She applied to the Little Rock Planning Commission for the rezoning of her property from “D” Apartment District to “F” Commercial District. Upon her application being denied, she appealed to the Board of Directors of the city and again her request was denied. The appellee then filed this action to enjoin the appellant from denying her the right to use her property for “F” Commercial purposes.

Appellee alleged that the refusal of the appellant to rezone her property was arbitrary and placed unreasonable limits upon the use of her property; that the limitations upon the use of her property “bears no definite relationship to the health, safety, morals, and general Avelfare of the inhabitants of the area concerned; that the area surrounding the plaintiff’s property is no longer suitable for residential use because of heavy traffic, the existence of large shopping centers in the immediate vicinity, the deterioration, decay and bad repair of the structures in the area and the obsolescence of such structures, and because of the removal of population groups Avithin the city.” Appellee also alleged that she had been deprived of her property in violation of the Fourteenth Amendment of the U. S. Constitution and Article 2, §§ 8 and 22 of the Constitution of Arkansas. The chancellor found that the refusal of the city authorities to rezone plaintiff’s property from “D” Apartment to “F” Commercial is “arbitrary, unlawful and discriminatory” and enjoined the appellant from denying appellee the right to use her property for “F” Commercial purposes. From this decree appellant brings this appeal.

For reversal appellant primarily contends that the chancellor’s finding that the action of the appellant was arbitrary in refusing to rezone appellee’s property is not supported by a preponderance of the evidence. We cannot agree.

In the very recent case of City of Little Rock v. Andres, 237 Ark. 658, 375 S. W. 2d 370, the property in question Avas located at 2115 Broadway, or- 3% blocks from the property in the case at bar. There we affirmed the chancellor’s holding that the action of the city authorities Avas arbitrary in refusing to rezone that property from “C-2 Family District” to “F” Commercial. We are of the view that the case at bar is controlled by our opinion in the Andres case and the decisions cited therein.

The appellant introduced into evidence as an exhibit “Future Land Use and Zoning Plans, Census Tract 6”. The area of this tract is “bounded generally by Fourteenth Street on the north, Roosevelt Road on the south, Cumberland (Street on the east and Chester Street on the west. ’ ’ An examination of this exhibit indicates that both the Andres’ and the appellee’s property are located approximately within the center of the area designated on Broadway between Fourteenth and Twenty-fifth Streets. The Andres’ property is located at 2115 Broadway, or four blocks from the south end of this area which is zoned Commercial. Appellee Gardner’s property is located at 1723 Broadway, or three blocks from the north end of this area where commercial zoning also exists. The Andres’ and appellee Gardner’s property are only three and one-half blocks apart and in the instant case appellant has offered no evidence that sufficiently distinguishes it from the Andres case. In fact, in the Andres case the property was zoned “C-2 Family District” and on appeal we approved the right of the property owner to use his property for “F” Commercial purposes. In the case at bar the property is zoned “D” Apartment. Thus, since “ F ” Commercial zoning is sought, the degree of transition requested is actually less of an impact upon rezoning than that sought in the Andres case. See footnote in City of Little Rock v. Garner, 235 Ark. 362, p. 363, 360 S. W. 2d 116, for definition of zoning classifications.

The appellant presented as witnesses three property owners within close proximity to appellee’s property. Two of these witnesses testified that they owned old houses similar to appellee’s and they had economically converted them into apartment houses. Another witness testified as the owner of an apartment building located two blocks from appellee and one block from commercial zoning, a filling station at Fourteenth and Broadway, which appears to have no detrimental effect upon the value of the apartment building. These and also expert witnesses presented by the city offered evidence that appellee’s property could be economically converted into and used for an apartment house and that to allow appellee to use her property for commercial purposes would have an adverse effect upon the use of the surrounding-property for rental purposes.

The appellee presented evidence, however, that the homes in her neighborhood have deteriorated to such an extreme degree, coupled with the usually heavy traffic upon Broadway as a four-lane thoroughfare of national highways, that her property is no longer suitable for “D” Apartment use. Appellee presented Mr. Andres as a witness in support of her position. According to him, a residence on Broadway valued at $12,000.00 increases in value to $25,000.00 upon being zoned “F” Commercial; that a shopping center is located at the corner of Twenty-fifth and Broadway and across the street is a lamp shop and filling- station; that a house at 2100 Broadway had been vacant for a long time and that other houses in this general area were vacant; that rental houses were occupied mostly by transients or for one to two months; that most of the structures were old and lacked modern facilities and that it is too. expensive to convert these older residences into apartments as a profitable venture; that.no parking facilities exist, other than on the regular size lots, since parking is not allowed on Broadway or in the adjacent alleys; that he was unable to sell his property before it was rezoned although he had listed it with realtors and that now he has received attractive offers to sell as commercial property.

Another witness, Mr. Lewis, an attorney and experienced in the realty business, testified that he owned property at 2123 Broadway; that his house had been divided into rental units and was for sale; that during-the four or five years he had owned the property he had experienced much difficulty in renting it and had to reduce the rent several times in order to attract tenants; that he had been unsuccessful in his efforts to sell his property; that some of his clients on Broadway had also been unable to sell their property because of the existing zoning classification and that in his opinion the best use of his and appellee’s property would be for commercial purposes.

The appellee • testified that her property was a seventy-five-year-old two-story frame home with 11 rooms and 2 baths located on a lot 100x140 feet which she had owned the past twenty-three years; that she was unable to maintain it in good repair; that four different realtors had been unable to sell it the past ten years although she had reduced the price considerably; that some of the houses in the area of appellee’s property, and according to pictures as exhibits to her testimony, are in a deteriorated condition; in fact, a sign on one reads “Structure Closed, Unfit For Human Habitation, City Health Department”; that a house nearby is being razed and it appears from her testimony that in her neighborhood when a house is demolished or razed there is no new construction of a residence or apartments. She had ascertained that it would cost approximately $90,000.00 to convert her residence into a twelve-unit apartment building and that such would be impossible for her as well as a questionable financial venture for anyone. Further, the lack of schools and play grounds in the area, the traffic count of 15,000' vehicles per day on Broadway as a four-lane thoroughfare, made it impractical to use her property for multiple apartment units.

In the case at bar, as we said in the Andres case, the property would have a reasonable and satisfactory value as commercial property according to the undisputed evidence. There we said:

“ * * _ * If a lot becomes vacant because the house is condemned or is destroyed by fire, it has no value unless the property can be rezoned as commercial. An apartment house could not be built and rented successfully because no parking is permitted on Broadway and one lot would not be large enough to take care of the required parking.”

One of the main purposes of zoning and rezoning is to stabilize property values in a neighborhood, thus encouraging the most appropriate use of the land.

Appellant next contends that the chancellor erred in refusing certain testimony offered by appellant. On appeal we try chancery cases de novo. When we consider all of the competent evidence in the case at bar we cannot say that the finding of the chancellor that the city authorities acted arbitrarily in refusing to rezone the property in question is contrary to the preponderance of the evidence.

Harris, C.J., and McFaddin and Ward, J. j., dissent.

Carleton Harris, Chief Justice

(dissenting). I do not feel that the proof in this case justifies a holding that the city authorities were arbitrary in refusing to rezone the property involved from the designation of “D” Apartment District to “F” Commercial District. The majority apparently depend almost entirely upon the recent case of City of Little Rock v. Andres, 237 Ark. 658, 375 S. W. 2d 370. That opinion contains language which would appear to hold that no part of Broadway is now suitable for residential purposes, but since Andres only actually involved a small area on Broadway, I have considered the “sweeping language” as to the entire street to be nothing more than dicta. If all of the language employed in the Andres case is to be considered a precedent, it appears to me that the City of Little Rock is wasting time in opposing any requests for commercial zoning along Broadway.

I respectfully dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). This case is the logical sequal to City of Little Rock v. Andres, 237 Ark. 658, 375 S. W. 2d 370, in which this Court allowed rezoning. I dissented in that case, and I dissent in this one.

There is no need to review the evidence in extenso; but I mention it briefly. Mrs. Hutto lives at 1719 Arch Street, directly across the alley from the property in question. Mrs. T. J. Reynolds owns property at 18th and Broadway, less than a block from the property in question. Mr. Petty lives at 2020 Broadway; Mr. Harding- manages his mother’s property which is located at 1520 Broadway, two blocks from the property in question. All of these witnesses testified as opposed to this rezoning petition.

There was other testimony in addition to these property owners: Mr. Cooper, as an engineer of the State Highway Department, testified as to the traffic volume on Broadway; Mr. East, a real estate broker, testified against the rezoning; Mr. DeNoble, the Director of Community Development of the City of Little Rock, testified at length against rezoning and gave most cogent reasons. Mr. Eurman, as the City Planner of the Metropolitan Área Planning Commission, testified against the rezoning of this property. All of the witnesses for the appellant offered strong- evidence against this “strip zoning” which is being accomplished in this case. I think the Chancery Court decided this case against the preponderance of the evidence. But it appears that the Arkansas Supreme Court has rather clearly indicated an intention to rezone Broadway in Little Rock which will result in ‘ ‘ strip zoning, ’ ’ a practice disapproved by all authorities.

For the reasons herein stated, I respectfully dissent.

Ward, J., joins in this dissent.


author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice

text:
    Bryant v. Bryant.
    5-3484
    387 S. W. 2d 322
    Opinion delivered March 1, 1965.

      Featherston éFeaiherston, for appellant.

      Jerry Witt, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves the validity of a deed. Appellant, Noles Bryant, and her former husband, Dr. Robert L. Bryant, were named grantees in a deed conveying a certain forty-acre tract in Montgomery County, said deed being executed by the widow and surviving heirs of Dr. Bryant’s deceased father. Dr. Bryant and his wife took title as an estate by the entirety. The granting clause recites that the widow, Lou Bryant, and heirs,

“for and in consideration that the grantees are to provide a place for Mrs. Lou Bryant to live for the remainder of her life, and of the sum of THIRTY FIVE HUNDRED ($3500.00) DOLLARS, in hand paid receipt of which is hereby acknowledged, do hereby grant, bargain and sell to Robert L. Bryant and Noles Bryant his wife, GRANTEES, and unto their heirs and assigns forever, the following land lying in Montgomery County, Ark.: # * * ’ ’

It is undisputed that Dr. Bryant did provide a home for the mother, Mrs. Lou Bryant, which was located on a one-acre tract, and that she was still living there at the time of this litigation. Dr. Bryant, however, did not convey the property to his mother.

Dr. Bryant and appellant were divorced on May 1, 1953. The divorce decree sets out the property that each is to receive, but the particular forty acres here involved is not mentioned. The one acre, upon which the home was provided for Mrs. Lou Bryant, was awarded to Dr. Bryant. In August of the same year, Dr. Bryant married Gerry Matsuko in Honolulu, Hawaii. On August 24, 1954. Dr. Bryant and the second wife executed a deed conveying the forty acres to Jerry Witt, an attorney; also a deed was executed conveying the one acre. On the next day, Attorney Witt and his wife conveyed the properties back to Dr. Bryant and Gerry. The doctor and his wife lived together until his death on May 29, 1955. Within a week, the second Mrs. Bryant deeded both pieces of property to Mrs. Lou Bryant.

Appellant instituted suit, contending that she was the sole owner of the forty-acre tract by virtue of being the survivor of the estate by the entirety. -Appellees answered, contending that the $3,500, mentioned as part of the consideration in the deed, was never paid, and they prayed that their deed to Dr. Bryant and appellant be cancelled. On hearing, the court held,'

“that the deed executed by the defendants [appellees] to Robert L. Bryant and Noles Bryant on the 9th day of August, 1954 [52], and recorded in deed record books B-41, Pages 366-368 conveying the following lands herein described as follows: [here appears description of the forty acres] should be cancelled and set aside for the reason that the consideration in said deed wholly failed and that said deed should be removed as a cloud on the title of the defendants * * *”

Title to the property was quieted and confirmed in appellees. From the decree so entered, appellant brings this appeal.

We think, under our cases, that this decree must be reversed. In 1856, this court held that where a deed acknowledges payment of a consideration, the expressed consideration cannot be disproved for the purpose of defeating the conveyance, unless it be on the ground of fraud. The court went on to say that, for the purpose of ascertaining damages for which a plaintiff might be entitled, due to breach of covenant, the true consideration might be shown. Vaugine, et al, v. Taylor, et al, 18 Ark. 65. In 1955, this court said: “The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration, ’ ’ United Loan & Investment Co. v. Nunez, 225 Ark. 362, 282 S. W. 2d 595. In Rebsamen Motors v. Moore, 231 Ark. 249, 329 S. W. 2d 155, we reiterated:

“* * * It has been decided by this court in numerous cases that, though the recitals as to consideration in a deed cannot be contradicted by parol evidence for the purpose of defeating the conveyance, it is competent to prove by such evidence that the consideration has not been paid as recited or to establish the fact that other considerations not recited in the deed were agreed to be paid, when it does not contradict the terms of the writing. ’ ’

In 26 C.J.S., Deeds, § 21, Page 618, we find:

"While it has been recognized that failure of consideration for a conveyance is sufficient ground to warrant a rescission, at least where it is total, as a general rule a deed which is otherwise valid will not be invalidated by reason of a total or partial failure of consideration, and will nevertheless operate to convey title. So, in the absence of statutory authorization, or an express provision for a forfeiture or reconveyance, a deed will not be avoided or canceled because the consideration agreed on is not paid, or because the grantee fails to perform a promise forming the whole or part of the consideration therefor'; nor will failure to perform such a promise ordinarily give rise to a lien or charge against the land; nor is a party entitled to have his deed set aside and canceled simply because he has not received full consideration. ’ ’

An Arkansas case, Wheeler v. Wendleton, 209 Ark. 601, 191 S. W. 2d 952, is cited. There, this court stated:

"The fact that the consideration for this agreement was not paid would not revest the title in Hunt, but Avould only give him a right to enforce collection of the amount due him for his improvements and taxes.” * * *

We are firmly of the opinion that, even if failure of consideration were established, appellees would not be entitled to cancellation of the deed because of that fact alone. There is an exception to the general rule, vis, that Avhen a deed is executed in consideration of future support and maintenance — then, if the provision is not fulfilled by the grantee, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. In Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331, this court commented:

“* * * Our cases hold that when a deed is executed in consideration of future support and maintenance — as here — then, if the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration.”

Appellees here contend that the $3,500 was for support of the mother, and that accordingly, the chancellor properly cancelled the dead.

Let us look to the circumstances herein, commencing with an examination of the deed. First, that instrument does not recite that the $3,500.00 is to be paid to the mother; rather, the wording of the conveyance indicates that this sum of money had been received by all grantees. It will be noted that there is no provision in the deed requiring Dr. Bryant to provide support in the future; in fact, there is nothing to indicate that the $3,500 lump sum payment (shown as paid) was to be used for support. Of course, if the money had been paid to the mother, she would have been privileged to use it for support or whatever else she desired. The point is that there was no obligation on Dr. Bryant to do anything in the future for his mother except provide a place for her to live for the remainder of her life — which was done. Be that as it may, we do not feel that appellees have established by the necessary quantum of proof either that the $3,500 represented'support money for Lou Bryant, or even that Dr. Bryant failed to pay the $3,500. In Kirkham v. Malone, 232 Ark. 390, 336 S. W. 2d 46, we said:

“At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. ’ ’

Appellant offered witnesses who testified that the $3,500 had been paid. On the other hand, appellees offered testimony to the effect that it had not been paid. It is evident that Dr. Bryant considered that the transaction had been consummated, else he would not have conveyed the property to his attorney and then obtained a conveyance back to himself and second wife. By virtue of this act, it would appear that the doctor recognized that his first wife still had an interest in the tract at that time.

The testimony of appellees is conflicting as to who was to receive the $3,500. For instance, Lou Bryant, the mother, testified that the $3,500 was to be paid to her and the children; that it was to be divided equally between all of them. A daughter, Hecldie Tucker, likewise testified that the money was to be paid to the mother and the heirs (meaning the children); that she (the witness) was to receive a part of the money. Mae Kilby, another daughter, also testified that, in addition to her brother providing a place for the mother to live, $3,500 was to be paid to the mother and to the children for the property. At another point in her testimony, the witness stated that “Mother would have money to live on.” Anna Barber, a daughter, testified that Dr. Bryant “was supposed to support my mother, but he did not.” Wesley Bryant, a son, stated, “It was my understanding that Dr. Bryant was to deposit the purchase price of this land in the bank, and it was agreed that my mother would be supported by this deposit until her death, and any money left at her death would be divided among the heirs.” Oda Rogers, a daughter, testified that her brother was supposed to put $3,500 in the bank to be used by the mother. All of the appellees who testified stated that no part of the $3,500 was paid to any of them; this testimony, of course, could mean nothing more than that they had not individually received any money.

It is obvious that appellees themselves were not in agreement as to who would receive the money, which means that they certainly were not in agreement that it was to be paid solely to the mother, or that it was to be used for her support. Appellees alleged fraud in the procurement of the deed, but the chancellor made no finding of fraud, nor would the proof support such a finding. In fact, we think the testimony falls far short of establishing by clear, cogent, and convincing testimony that the $3,500 ivas to be used for the support of the mother, or that the money was not paid, though there was more evidence concerning the latter than the former.

The decree is accordingly reversed, and the cause remanded to the Montgomery County Chancery Court, with directions to enter a decree cancelling the following deeds to the forty-acre tract involved in this litigation :

Dr. Robert L. Bryant and wife, Gerry Matsuko Bryant, to Jerry Witt and wife;

Jerry Witt and wife to Dr. Bryant and Gerry Matsuko Bryant;

Gerry Matsuko Bryant to Lou Bryant.

It is so ordered.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I respectfully dissent. The deed here involved is a support deed and the Chancery Court correctly cancelled the deed for failure of the grantees to provide and furnish the contracted support. The deed sought to be can-celled was dated July 9, 1952, and was from Mrs. Lou Bryant and her children to Robert L. Bryant and Noles Bryant, his wife, and the recited consideration was: “. . . . for and in consideration that the grantees are to provide a place for Mrs. Lou Bryant to live for the remainder of her life and of the sum of $3,500.00 in hand paid, receipt of which is hereby acknowledged . . .” I call attention to the fact that the appellant in this case was one of the grantees.

The first point I desire to make is that the real consideration in any deed can always be shown by parol evidence. This Court so held as far back as Pate v. Johnson, 15 Ark. 275; and has continued to so hold in a ease as recent as United Loan & Inv. Co. v. Nunez, 225 Ark. 362, 282 S. W. 2d 595. In the last cited case we said:

“The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration. Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; and other cases collected in West’s Ark. Digest, ‘Evidence,’ § 419 (2).”

The second point I desire to make is that the evidence in the ease here established — as the Chancellor found — that the real consideration in this deed was that Dr. Bryant and Noles Bryant would pay $3,500.00 for the support of Mrs. Lou Bryant, the mother of Dr. Bryant. Here is some of the testimony:

Mrs. Lou Bryant testified:

‘ ‘ Q. Now did he furnish you any money for a living?
“A. No, sir.”

And again:

“Q. So that then, Mrs. Bryant, this one acre there that Dr. Bryant gave you as a place to live was just one of the considerations, . . . the other thing was to pay you $3,500.00, wasn’t it?
“A. Yes, sir, and he never paid a penny of it.”

Mrs. Oda Rogers, one of Mrs. Lou Bryant’s daughters, testified:

“Q. Would you please tell the Court what he told you there with reference to when you signed the deed here, what was the consideration, what'was he to pay for this land?
“A. Well, he was supposed to pay $3,500.00 to my mother.
“Q. Was he to put that in the bank to be used by your mother for her support as long as she lived, is that what he was to do?
“A. Yes.”

And again the witness testified:

“Q. ... has Notes Bryant ever paid you anything?
“A. No.
“Q. Never offered to pay you anything?
“A. No.
“Q. Never paid your mother anything?
“A. Not a penny.”

Mrs. Hettie Tucker, another daughter of Mrs. Lou Bryant, testified as to the consideration:

“A. He promised to pay $3,500.00 when I signed the deed.
“Q. Who to?
“A. To mother and her heirs.”

Mrs. May Kilby, another daughter of Mrs. Lou Bryant, testified:

Q. Now, then, you understood when you signed the deed that your mother and all of her children were to get $3,500.00 in addition to providing a place for your mother to live?
“A. Yes . . .
‘‘Q. Will you tell the Court whether or not Dr. Bryant or Noles Bryant ever paid any part of the $3,500.00?
“A. No, not a penny.”

Some of the witnesses differed as to the ultimate disposition of the money; that is, whether it was to be used solely for the support of Mrs. Lou Bryant; or whether what was left after her death would go to her heirs; but those that I have mentioned were unanimous to the effect that the money was to be for the support of Mrs. Lou Bryant and that such support money had not been paid. In other words, the support from the $3,500.00 had never been performed by Dr. R. L. Bryant and Mrs. Notes Bryant. Thus, we have a ease before us wherein the real consideration was to include $3,500.00 for the support of Mrs. Lou Bryant, and that consideration has not been fulfilled. Not only were the grantees to supply a home — but they were also to supply support —and the performance of one (a home) was only a partial performance; and that is not sufficient. See Euin v. Faubus, 217 Ark. 238, 229 S. W. 2d 244.

The third point I desire to make is that when a deed is executed in consideration of future support, as here, and all such support is not provided, then the deed may be cancelled outright, just as the Chancery Court did in the case at bar. These support deeds are different from other deeds in that respect. In Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15, this Court quoted from Edwards v. Locke, 134 Ark. 80, 203 S. W. 286, as follows:

‘ ‘ ‘ The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and, where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to, regardless of any remedy that the grantor may have had also at law. See Salyers v. Smith, 67 Ark. 526; 4 R.C.L., p. 509, § 22; Russell v. Robins, 247 Ill. 510; Stebbins v. Petty, 209 Ill. 291; Spangler v. Warborough, 23 Okla. 806; see also Bruer v. Bruer, 109 Minn. 260; Abbott v. Sanders, 80 Vt. 179; Glocke v. Glocke, 113 Wis. 303. See also case note 43, L.R.A. (N.S.), 918-925.’ ”

To the same effect see Brimson v. Pearrow, 218 Ark. 27, 234 S. W. 2d 214; Euin v. Faubus, 217 Ark. 238, 229 S. W. 2d 244; and Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331.

So I maintain that the deed from Mrs. Lou Bryant and her children to Dr. R. L. Bryant and Noles Bryant was a support deed; that the $3,500.00 has not been paid or performed; and that the Chancery Court was correct in cancelling the deed.

       Brothers and sisters oí Dr. Bryant.

       From the briefs, it appears that Mrs. Bryant subsequently died, apparently still living on this one acre.

       Emphasis supplied.

       It might be mentioned that no lien was retained in the deed.

       The various heirs lived in different cities and states, and, in fact, in obtaining the deed, Dr. Bryant traveled to the homes of several of them, who lived out of state, for instance, Nebraska, California, Washington. Several did not testify.

       The term “support deed” is used in the case of Euin v. Faubus, 217 Ark. 238, 229 S. W. 2d 244, and its meaning is there shown.

       In addition, Mrs. Gerry Matsuko Bryant, the widow of Dr. R. L. Bryant, testified, without objection, as to what Dr. R. L. Bryant told her some time after their marriage in 1953 :
      “Q. Did your husband discuss with you this particular deed, which you held in his lifetime, while you lived together, that was made in 1952, to the 40 acres of land, did he discuss it with you during his lifetime?
      “A. Yes.
      “Q. All right, what did he say, and where was it said?
      “A. Well, I imagine it was at home, he said he’d like to buy it and he wanted to get everybody to sign it, but then we didn’t have the money, so he didn’t buy it.
      “Q. In other words, the conversation you had with him was about some land that he would like to buy, was going to buy, but had not bought?
      “A. That’s right.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Ward v. Harwood.
    5-3478
    387 S. W. 2d 318
    Opinion delivered March 1, 1965.

      Harper, Harper, Young & Durden, for appellant.

      Hardin, Barton, Hardin dt Jesson, for appellee.
   Ed. F. McFaddin, Associate Justice.

The cause of this litigation is a tract of approximately 90 acres in, or on the banks of, the Arkansas River in Fort Smith. The appellants call the'tract “Slough Island”; and for convenience we will refer to it by that name, although one of the undecided questions is whether the land is in fact an island or an accretion. Another question, and the decisive one, is whether a 1901 enactment of the Arkansas Legislature was repealed by a 1917 enactment.

In 1962 appellants, Claude C. Ward and J. P. Hendricks, pursuant to statutory procedure, obtained a deed from the Arkansas State Land Commissioner to the so-called Slough Island. Shortly after appellant’s deed was placed of record two suits were filed against them. In one suit appellee Harwood claimed to be the owner of certain described lands, and prayed that the island deed to Ward and Hendricks be removed as a cloud on Harwood’s title. In the second suit appellee Ingram claimed to be the owner of certain lands and prayed that the island deed to Ward and Hendricks be removed as a cloud on Ingram’s title. In the course of the litigation the grantees of some of Harwood’s interests and some of Ingram’s interests were made parties. Ward and Hendricks defended on the basis of their island deed. The two cases were consolidated and a lengthy trial resulted in a decree adverse to Ward and Hendricks. The Chancellor delivered a written opinion which has been helpful to this Court.

From the decree adverse to them, Ward and Hendricks prosecute this appeal and urge two points:

“I. The Chancellor erred in finding and holding that, even if the lands are an island, appellees are the owners thereof entitled to possession for the reason that the same had formed within the boundaries of lands belonging to appellees and their predecessors in title, thus erring:
“In holding that Section 10-202, supra (Act 127 of the Acts of Arkansas for 1901) had not been repealed by Act No. 282 of the Acts of Arkansas for 1917, as amended by Act No. 452 of the Acts of Arkansas for 1959. (Section 10-601.)
‘ ‘ II. The Chancellor erred in failing to- find and hold that the lands in question were in fact an island at the time of the deed thereof to appellants from the Commissioner of State Lands, and that appellants were the owners thereof and entitled to possession, and in denying their prayer that appellees’ claims of title thereto be cancelled as clouds upon appellants’ title.”

I.

Appellants’ first point presents the question whether Act No. 127 of 1901 was repealed by Act. No. 282 of 1917, as amended by Act No. 452 of 1959. Our present holding on that question is decisive of this litigation. The south boundary of the Arkansas River here involved was meandered and surveyed in August 1827, and said survey showed that Sections 32 and 33 were on the south bank of the river. Section 33 was shown to be a complete section of 640 acres; and the area of Section 32 then in existence was shown to be 187.95 acres. The appellants claim that after the survey of 1827 the river cut into the south bank and by erosion took most of Section 32 and 33; that in later years the river then worked to the north and that Slough Island was formed as an island in the river. Appellants candidly admit that Slough Island as it now exists is within the land lines of appellees in Sections 32 and 33, but claim that Slough Island is a new island formed in the Arkansas River, even if it is within the land lines of the original Sections 32 and 33, as shown by the survey of 1827. In effect, appellants concede that if Ark. Stat. Ann. § 10-202 (Repl. 1956) is still the law in this State then the appellants must lose this litigation. So the decisive question is whether Ark. Stat. Ann. § 10-202 (Repl. 1957) is still in full force and effect. That section comes to us from Act No. 127 of 1901, and reads as follows:

“All land which has formed or may hereafter form, in the navigable waters of this State, and within the original boundaries of a former owner of land upon such stream, shall belong to and the title thereto shall vest in such former owner, his heirs or assigns, or in whoever may have lawfully succeeded to the right of such former owner therein.”

The history of the section is interesting. In 1896 this Court decided the case of Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, which held that an island formed in a navigable stream belonged to the State, even though the island was a reappearance of land within the boundaries of the original owner. There was a vigorous dissent by Chief Justice Bunn. To overcome the effect of the holding in Wallace v. Driver, supra, the Legislature of 1901 adopted Act No. 127; and the preamble to that Act is enlightening. We copy it:

“Whereas, Owners of land along navigable rivers often suffer by having such land washed away; and
“Whereas, Under existing laws if such land re-forms as an island in a navigable stream though within the original boundary of the former owner, it belongs not to him but to the state; ...”

In 1917 the Arkansas Legislature adopted Act No. 282 which stated that all islands formed in navigable streams belonged to the State, and gave the procedure whereby the Land Commissioner might have the island surveyed and sold. In the excellent brief filed herein the appellants claim that the effect of the 1917 legislation was to entirely repeal the 1901 legislation, arguing that the 1917 legislation said that “all islands” formed in navigable streams belonged to the State; and that such language was entirely inconsistent with the 1901 Act which said that lands formed in the bed of navigable streams belonged to the former, owners of surveyed lands.

After a thorough study of the question we reach the conclusion that the 1917 Act did not repeal the 1901 Act. The 1917 Act did not expressly repeal the 1901 Act; and repeals by implication are not favored. It is our duty to reconcile legislative enactments and permit both to stand if possible; and since there was no express repeal of the 1901 legislation we hold that the effect of the 1917 legislation was to say that in all cases wherein islands are formed in navigable streams cmd not within the boundary lines of former owners, then the State may sell the island. Such construction prevents an implied repeal. We are led to this holding by a number of factors, one of which is that several cases have been decided since the 1917 legislation and there is no language in any of them indicating that the 1901 legislation was repealed.

Also of great persuasion to us is the direct holding-on this point made by the United States Circuit Court of Appeals, 8th Circuit, in 1946 in the case of Anderson-Tully Co. v. Murphree, 153 F. 2d 874. The same question here presented was before that Court; that is, whether the Act of 1901 was repealed by the Act of 1917, and the Court held:

“The Act of 1917 (Pope’s Digest Section 8739 et seq.) is not so in conflict with the Act of 1901 as to require a holding that the 1917 Act repeals the prior Act. The logical method of effecting a repeal of the 1901 Act, if that were intended, would have been the enactment of an express provision to that effect. It is well settled in Arkansas and elsewhere, that repeals by implication are not favored. Bartlett v. Willis, 147 Ark. 374, 227 S. W. 596; City Realty Co. v. Robinson Contracting Co., 8 Cir., 183 F. 176. It is equally well settled that statutes relating to the same general subject must be construed together and, if possible, effect must be given to each in order to effectuate the legislative intent. McFarland v. Bank of State, 4 Ark. 410; Thompson v. Road Improvement District, 139 Ark. 136, 213 S. W. 386; Pace v. State, for the use of Saline County, 189 Ark. 1104, 76 S. W. 2d 294.
“Section 1 of the 1917 Act declares that islands formed in navigable streams in the state are the property of the state. Subsequent sections provide for a survey oi the islands and prescribe a procedure for their sale and conveyance. Section 1 may reasonably be construed as applying only to islands not affected by the Act of 1901 and as constituting a logical prelude to the real purpose of the enactment, that is, to prescribe a method of selling State owned islands so as to get them on the tax rolls and have them put to productive use. We are referred to no case suggesting that the 1917 Act had the effect of repealing the Act of 1901. On the contrary, the cases seem to assume that no such repeal was intended. See, for example, Mills v. Protho, supra, 1920; Bush, Rec’r. v. Alexander, 1918, 134 Ark. 307, 203 S. W. 1028; Simpson v. Martin, 1927, 174 Ark. 956, 298 S. W. 861.”

Holding, as we do, that the 1917 Act did not repeal the Act of 1901, it becomes unnecessary for us to consider the appellants’ second point as to whether “Slough Island” is in fact an island, because if it is in fact an island the appellants cannot prevail, as we have just shown; and if it is an accretion the appellants concede that they are not entitled to prevail.

Affirmed.

       The present statutory procedure is set out in Act No. 452 of 1959, which may be found as § 10-601 et seq. in the 1963 cumulative pocket supplement to the 1965 Replacement Volume of the Arkansas Statutes.

       The said deed to Slough Island says: “Pt. W Vz W Vz Frl. Sec. 33 and Pt. E Vz E % Frl. Sec. 32 in Frl. T 9' N, R 32 W; and Pt. NE Vi NE Vi Frl. Sec. 5, Frl. T 8 N, R 32 W; all near the Right Bank or Southerly side of the Arkansas River in Sebastian County, Arkansas; . . .” (and then follows a long metes and bounds description, the copying of which is not essential to this opinion).

       Pertinent excerpts from the Chancellor’s opinion are: “It appears to the Court, in view of the facts established by the evidence, that it is unnecessary for the Court to determine whether Slough Island is in fact an island, since whatever it is, it was formed within the original boundaries of plaintiffs’ land. Ark. Stat. Anno. 10-202. The defendants concede that the undisputed testimony shows that Slough Island did form within the original boundaries of plaintiffs’ predecessors in title. But defendants contend that this section of the statute is not available to plaintiffs for the reason that this section was repealed by the enactment of Sec. 10-601 Ark. Stat. 1947 Anno. (1956 Replacement), . . .
      “The question presented is simply did Act 282 of 1917 (Ark. Stats. § 10-601, et seq., 1956 Replacement) repeal by implication Act No. 127 of 1901 (Ark. Stats., Anno. 10-202, 1956 Replacement. . . .
      “To hold that this statute was repealed by implication might result in confusion as to well established titles on navigable streams. There are no notes by the compiler of Annotated Statutes that Sec. 10-202 was repealed by the 1917 Act. So the Court finds and holds that the 1901 Act (Ark. Stat. Anno. 10-202, 1956 Replacement) is still in full force and effect. It is the further judgment of the Court that Slough Island having formed within the original boundaries of plaintiffs’ land, title to said land is in plaintiffs, subject to the mineral interests above set forth, and that the State Deed should be can-celled and removed as a cloud on the title of plaintiffs.”

       We have considered Act No. 127 in a number of cases, and some of them have been subsequent to 1917. See: Bush v. Alexander, 134 Ark. 307, 203 S. W. 1028; Gray v. Malone, 142 Ark. 609, 219 S. W. 742; Mills v. Protho, 143 Ark. 117, 219 S. W. 1017; Simpson v. Mar

        tin, 174 Ark. 956, 298 S. W. 861; Jones v. Euper, 182 Ark. 969, 83 S. W. 2d 378; Knight v. Rogers, 202 Ark. 590, 151 S. W. 2d 669; and Wunderlich v. Cates, 213 Ark. 695, 212 S. W. 2d 556.

       We had occasion to consider this Act in Rankin v. Williams, 221 Ark. 110, 252 S. W. 2d 551. The procedure set out in Act No. 282 of 1917 has been changed by Act No. 452 of 1959, but the changes are only procedural.

       See those listed in Footnote (4), supra.

       This case has been subsequently cited on this point in the following: Anderson-Tully v. Chicago Mill & Lbr. Co. (8th Cir.), 175 F. 2d 735; Bryant v. Chicago Mill & Lbr. Co., 120 F. Supp. 463, (8th Cir.), 216 F. 2d 727; and Kimble v. Willey, 98 F. Supp. 730.