text:
    Adcox v. James.
    Opinion delivered May 11, 1925.
    1. Reformation of instruments — burden of proof. — To warrant reformation of an instrument for a mutual mistake, the proof must be clear, convincing-, unequivocal and decisive, and must establish the mistake beyond a reasonable doubt.
    2. Reformation of instruments — sufficiency of evidence. — Evidence of a mutual mistake held sufficient to justify reformation of a conveyance of an interest in an oil and gas royalty.

      3. Reformation of instruments — negligence.—Alleged negligence of the grantee of .a conveyance in failing to read it held) not to bar reformation for a mutual mistake, where he was misled into believing that the deed conveyed the interest which he had purchased, and was lulled into security by that belief.
    4. Reformation of instrument — wife’s dower interest. — Conceding without deciding that a husband’s deed conveying* an interest in oi-1 and gas royalties is such a conveyance of an interest in the land as requires the wife’s relinquishment of her dower, a misdescription of such royalty in the deed will not be reformed as to her, since her dower can be relinquished only in the manner (provided by statute.
    Appeal from Union Chancery Court, Second Division; George M. LeGroy, Chancellor;
    reversed in part.

      Betts & Betts, for appellent.

      Powell, Smead S Knox, for appellee.
   McCulloch, C. J.

Appellee instituted this action in the chancery court of Union County against appellants (husband and wife), seeking- the reformation of a deed executed by the latter to the former, conveying part of a royalty reserved in an oil and gas lease covering a certain tract of land in that county, containing forty acres, to which appellant J. B. Adcox had title in fee simple. Said appellant had previously executed an oil and gas lease to one Jones, reserving a royalty of one-eighth of the production of oil and gas. Subsequent to that conveyance, appellants joined in a conveyance to appel-lee, reciting a consideration of $2,000, cash in hand paid, and conveying an interest described in the following language: “Am undivided one-sixteenth (1/16) portion of their interest in and to all of the oil, gas and other minerals in and under and that may he produced from the following described lands situated in TTnion County, Arkansas, to-wit” (the forty acres of land is then accurately described). The effect of this language in the deed was to convey one-sixteenth of the one-eighth royalty under the lease to Jones, whereas appellee contends that his contract with appellant Adcox for the purchase of an interest in the royalty was that one-half of the royalty, or one-sixteenth of the total production, was to be conveyed. Appellant, Ella Adcox, the wife of J. B. Adcox, joined in the conveyance for the purpose of relinquishing dower, and acknowledged the same, and she was joined in the action as one of the defendants.

Appellants answered denying that the agreement was that one-half of the one-eighth royalty was to be conveyed, and alleging that the description in the deed was in accordance with the intention of the parties in making the sale and purchase.

The chancery court granted the relief prayed for by appellee, and rendered a decree accordingly, reforming the deed both as to the owner, J. B. Adcox, and also against his wife so far as it affected the relinquishment of dower. The correctness of the decree is attacked by counsel for appellants on the ground that the evidence is not clear and convincing in establishing the fact that there was an error in the deed. There is no controversy between the parties as to the law with reference to the degree of proof essential for the reformation of a deed or other written instrument. The evidence must be “clear, convincing, unequivocal and decisive,” and must establish the right beyond a reasonable doubt. McGuigan v. Gaines, 71 Ark. 614. This rule does not require that the fact be established entirely beyond dispute. The only requirement is that there be more than a mere preponderance, and the evidence must be of sufficient weight to establish the issue beyond reasonable controversy or doubt. We are of the opinion that the evidence in this case fully meets that requirement.

The sale and purchase between appellee'and appellants was negotiated by James L. Martin, who testified in the case and stated that he was employed by J. B. Adcox to sell an interest in the royalty, and was authorized by him to make sale of one-half of the royalty for $2,000, and that, pursuant to that authority, he negotiated the sale to appellee. He testified that he was the agent of appellant Adcox, and that the latter, after the sale was reported to him, caused the deed to be made, and that he (witness) took the deed and delivered it to appellee and received a check for the purchase price, out of which he was paid a commission by appellant. He testified that, at the time of the delivery of the deed to him and the delivery of it by him to appellee, he did not know that the deed failed to describe the interest to be conveyed in accordance with the trade made — that is to say, one-half of the royalty. This witness appears to be entirely disinterested, and there is no reason for rejecting any portion of his testimony. He is contradicted, however, by appellant Adcox, who testified that he did not constitute Martin as his agent, but merely consented for the latter, as a broker, to make sale of the royalty, and he stated that the deed properly described the interest to be conveyed.

Appellee testified that, in the negotiations with Martin, the proposition was made to him to sell him one- ■ half of the royalty for $2,000, and he accepted this offer, and that, when the deed was delivered to him, he did not read the description, for the reason that he assumed that it was written in accordance with his agreement with Martin.

Other witnesses testified that appellant Adcox admitted afterwards that he had agreed to sell one-half of the royalty.

The testimony is overwhelming that the price of $2,000 for a conveyance of one-sixteenth of one-eighth royalty would be grossly excessive. Tlie proof shows that tills property was five or six miles from actual oil production and that $2,000 was the full price for one-half of the royalty, which, at that rate, would make $32,000' the value of the total production, whereas the price of $2,000 for one-sixteenth of the royalty would make a one-eighth royalty worth $32,000, which, according to the overwhelming- testimony, is grossly excessive.

¡We are of the opinion that the evidence is thoroughly satisfactory and convincing that a mistake was made in the conveyance. It was a mistake easily made by the scrivener and one little likely to be discovered in casual reading. The description, instead of saying an undivided one-sixteentli portion of the interest of the grantors, should either have said one-sixteenth of the total production or one-half of the interest of the grantors.

It is further contended that there should be no reformation for the reason that the mistake was not mutual. We are of the opinion that, if the evidence shows any mistake at all, it was mutual, because all the testimony adduced in the ease which tends at all to show that there was a mistake is to the effect that both appellee and appellant Adcox understood that one-half of the royalty was to be conveyed.

Again, it is contended that appellee is barred from relief on account of his own negligence in failing to read the deed. The answer to this contention is that he was led to believe that the deed conveyed the interest which he had purchased, and was lulled into security by that belief, hence he is not barred by his failure to read the deed. St. L. I. M. & S. Ry. Co. v. McConnell, 110 Ark. 306.

Our conclusion therefore is that the decree reforming the deed is correct so far as concerns the rights of the owner, J. B. Adcox. But it is further contended by appellants that the court erred in attempting to reform the relinquishment of dower by the wife, appellant Ella Adcox. It will be observed that the conveyance in question. was not an original sale or lease of mineral rights, but was a conveyance of royalty reserved in the lease to Jones. Whether or not this was such an interest that would give the wife of the grantor dower in the event of the death of her husband we need not now decide; but conceding’, without deciding, that the conveyance was of such a character as there should be a relinquishment of the wife’s dower rights, it does not follow that the deed should be reformed as to her. On the contrary, we have held that a misdescription in a deed of conveyance of land could not be reformed so far as to affect the wife’s dower rights. Morris v. Covey, 104 Ark. 226. The reason given in that decision why there can be no reformation was that a wife can relinquish her dower only in the method provided by statute, and there can be no reformation, for the reason that she was entirely without power to relinquish dower except in the manner pointed out by the statute. Counsel for appellee insist that that decision fails to take into account a statute enacted by the General Assembly of 1893 (Crawford & Moses’ Digest, § >5578), authorizing chancery courts to reform “all deeds or other instruments of conveyance of married women.” It is a mistake to assume that the statute was overlooked, for we cited the case of Mills v. Driver, 72 Ark. 534, where the statute was mentioned. It may be added now, however, that the statute has no application to a relinquishment of dower, for it applies in terms only to deeds or other instruments of conveyance and not to a relinquishment of dower. We adhere therefore to the decision that the wife’s relinquishment of dower cannot be reformed. But .that does not affect the validitv of the conveyance so far as concerns the rights of the husband.

There is a question raised by appellee in this case as to the evidence being properly brought into the record, but we have reached the conclusion on the merits of the case in favor of appellee, assuming the evidence to be properly brought up, aud it is unnecessary to discuss that question.

The decree against appellant J. B. Adcox reforming the conveyance as to him is in all things affirmed, but the decree as against appellant Ella Adcox is reversed, and the cause as to her dismissed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Holt v. Texarkana.
    Opinion delivered May 11, 1925.
    1. Municipal CORPORATIONS — duty to repair streets or' bridges.— Municipal corporations at common law are not required to repair highways, streets or bridges.
    2. Bridges — liability op city for negligence in repairing. — A city is not liable .to an individual for injuries resulting from its negligence in maintaining a bridge within its limits, as required by Crawford & Moses’ Digest, § 7607.
    Appeal from Miller Circuit Court; J. H. McCollum, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Delia Holt, a minor, by her next friend and mother, Mrs. Delia Holt, in this action seeks to recover damages against the city of Texarkana, Arkansas, for injuries alleged to have been sustained by said minor in consequence of the want of proper repairs to a bridge or viaduct of the city.
    It appears from the complaint that Texarkana is a city of the first class, and the railroad of the St. Louis, Iron Mountain and Southern Railroad Company extends through the corporate limits of the citv. The Legislature of 3907 passed an act to require said railroad company to build a bridge or viaduct where its right-of-way is crossed by College Street, in the city of Texarkana, Arkansas. The act provides that the nib-oad company shall pav one-half of the cost of said bridge or viaduct, and the n4hor half shall b<' paid by the citv. It further provides that, after the bridge or viaduct is completed, the railroad company shall be under no obligation to maintain it, but that it shall thereafter be maintained by the city of Texarkana, Arkansas. Acts of 1907, p. 6Q6.
    The city of Texarkana allowed the floor of said overhead bridge or viaduct to become out of repair, and a plank in the floor of the bridge to be moved and displaced. On the 2nd day of December, 1921, Delia Holt, a little girl eight years of age, while on her way to school, attempted to walk across said bridge on the part of it usually traveled by pedestrians, and fell through • said open place in the bridge floor and thereby received severe'and permanent personal injuries.
    The* court sustained a demurrer .to the complaint, and the plaintiff refused to plead further. Thereupon judgment was rendered for the defendant, and the plaintiff has duly prosecuted an appeal to this court.

      J. M. Garter and B. E. Garter, for appellant.

      James D. Head, for appellee.
   Hart, J.,

(after stating the facts). The plaintiff in this action seeks to recover damages against the city of Texarkana for injuries alleged to have been sustained in consequence of the want of proper repairs to a viaduct of the -city. The complaint alleges that it was the duty of the city to keep the viaduct in proper repair, and that the plaintiff’s injuries were caused because the viaduct was out of repair and dangerous for travel.

In this State it is the settled law that there is no common-law liability resting upon quasi corporations, such as counties and municipalities, to repair highways, streets or bridges within their limits, and they are not obliged to do so unless by force of statute. It is true that the special act for the construction of the viaduct in question provides for its maintenance by the city of Texarkana after it has been constructed by the railroad company. Our general statute, however, provides that the city council shall have the care, supervision and control of all the public highways, bridges and streets within the city, and shall cause the same to be kept open and in repair and free from nuisance. Crawford & Moses’ Digest, § 7607.

This section is a part of the act of March 9, 1875. The negligence of the defendant in the performance of this public duty is the basis of the right of action in cases of this sort. It has been settled by a long train of decisions in this State that such an action is not maintainable. The decisions of this court have classified the management and control of streets and highways by municipal corporations as the exercise of its functions as a governmental agency, and, for this reason, no civil action may arise for au. injury resulting from the neglect to keep them in repair. Arkadelphia v. Windham, 49 Ark. 139; Fort Smith v. York, 52 Ark. 84; Collier v. Fort Smith, 73 Ark. 447, and Gray v. Batesville, 74 Ark. 519.

As sustaining the same principle, see Fordyce v. Woman’s Christian Nat’l Lib. Assn., 79 Ark. 550; Franks v. Holly Grove, 93 Ark. 250; Gregg v. Hatcher, 94 Ark. 54; Dickerson v. Okolona, 98 Ark. 206; and Birchfield v. Diehl, 126 Ark. 115.

The same rule has also been applied to improvement districts. Wood v. Drainage District No. 2, Conway County, 110 Ark. 416; Board of Improvement of Sewer District No. 2 v. Moreland, 94 Ark. 380; and Jones v. Sewer Imp. Dist. No. 3 of Rogers, 119 Ark. 166.

It is true that there is great conflict in the author-ilies on this question, but the question has been very fully and carefully considered bv different sets of bulges of this court. The opinions have been deliberately formed and expressed after recognizing the conflict in the authorities. No useful purpose could be served by again taking up and reviewing the decisions upon the question. For many years the law has been considered definitely settled’in this State. Therefore it will require legislative action to create any liability against a town or municipal corporation to a private individual for negligence in maintaining its streets, highways or bridges. Whether such liability should he created has been well said to he a legislative question of importance and some nicety.

It follows that the judgment of the court was correct, and it will he affirmed.


text:
    Wycoff v. Farmers' & Merchants' Bank.
    Opinion delivered May 11, 1925.
    1. Attachment — effect of agreement that owner sell propertv. —'An agreement between the owner of personal property and an attaching creditor that the owner should sell the property and turn .over the proceeds to the sheriff was in effect a release of the ■attachment on these specific articles, and a relevy upon the proceeds of the sale.
    2. Exemptions — right to exemption in proceeds of sale. — An agreement of the owner of property, which he was about to sell with an attaching creditor that he continue the sale and turn over the proceeds to the sheriff, thereby allowing the sheriff to levy a writ of attachment on the money, did not amount to a waiver of his claim -of exemptions in such proceeds.
    Appeal from Boone Circuit Court; J. M. Sh-ht-u, Judge;
    reversed.
    STATEMENT OE PACTS.
    This was an action by the Farmers’ & Merchants’ Bank in the circuit court against G-eorgeR./Wycoff, Jr., to recover the sum of $422.20, alleged to he due upon a promissory note.
    The -plaintiff also sued out a writ of attachment against the defendant on the ground that he was about to dispose of his property with the fraudulent intent to cheat, hinder and delay his creditors in the collection of their debts.
    The sheriff levied' the attachment on certain personal property which the defendant had advertised for sale on a certain day, and took the property into his custody. The defendant wished to regain possession of the property so as to proceed with the sale of it. The • defendant had given a delivery bond to obtain possession of the property, and some question arose as to its sufficiency. It was agreed between the attorneys for the plaintiff and the defendant that the sale should proceed under the direction of the sheriff, and that the proceeds of sale should be turned over to the sheriff and by him held subject to the order of the court. The sale was made by the defendant under the direction of the sheriff, as agreed upon, and the proceeds of sale in the sum of $1(13.30 were turned over to the sheriff.
    The defendant filed his schedule of exemptions of personal property, and, among the personal property claimed as exempt from the process of the court, was said sum of $163.30. He is a married man, and a resident of Boone County, Arkansas. The court denied the defendant’s claim of exemption as to said sum of $163.30, and from an adverse judgment the defendant lias duly prosecuted an appeal to this court.

      Karl Greewlimv, for appellant.
    A. W. Woods, for appellee.
   Hart, J.,

(after stating the facts). In denying the plaintiff’s claim of exemption as to the $163.30, the court based its decision upon the case of Surratt v. Young, 55 Ark. 447. In that case certain personal property of the defendant had been levied upon under a writ of attachment. The plaintiff in the attachment suit presented a petition before the circuit judge in vacation, praying for a sale of the attached property. The defendant in the attachment suit indorsed on the petition his consent to the sale of the property as prayed for. An order of sale was made, and the property was duly sold bv the sheriff. Afterwards the defendant claimed his exemptions out of the proceeds of the sale of his property by the sheriff, as above set forth. His claim of exemptions was denied. The court said that the Constitution conferred upon the debtor the privilege of claiming specific articles of personal property as exempt from execution^ and the statute points out particularly the manner in which this must be done. The court said further that the statute did not confer upon the debtor the right to claim his exemptions out of the proceeds of property after it is sold under the process of the court, or under an order of the court, when he has had an opportunity to claim his exemption in specific articles as provided by the statute. In short, the court held that, by consenting to the order of sale by the sheriff, he waived his right to claim his exemption out of the proceeds of sale.

Here the facts are essentially different. The defendant did not consent to the sale of his property under the writ of attachment. It was agreed between the plaintiff and the defendant that the defendant himself should sell the property under the direction of the sheriff and turn over the proceeds of sale to him. It was true, this was done after the property had been attached; but the practical effect of the agreement between the plaintiff and the defendant was that the sheriff released the attachment upon the specific articles of property and re-levied it upon the proceeds of sale. The sale was not made under an order of court, but was made by the defendant himself. He turned the proceeds of sale over to the sheriff under the agreement, and this amounted to a levy of the attachment by the sheriff upon the money.

This court has uniformly held that the exemption clause of the Constitution is highly remedial, and should be liberally construed. We do not think, under the circumstances of this case, that it can be said that the defendant waived his exemptions by turning over the proceeds of sale to the sheriff and thereby allowing the sheriff to levy the writ of attachment upon the money. Certainty the agreement that he himself should sell the nroperty did not amount to a waiver of his exemptions. The vital distinction between the facts in this case and the one cited above is that, in the case cited, he consented that his property be sold under the order of the court before lie made bis claim of exemptions, while in the present case the sale was made by himself.

It follows that the conxt erred in denying the defendant his claim of exemptions, and for that error the judgment will be reversed, and the canse remanded for further proceedings according to law.


text:
    Ward v. Spadra Coal Company.
    Opinion delivered May 11, 1925.
    1. Mines and minerals — liability of lessor for conversion by lessee. — To render a lessor of a coal mine liable in trespass for conversion by his lessee of coal on adjacent land, it must appear that the lessor acted in concert in committing- the trespass or otherwise aided and assisted the lessee to commit the trespass.
    2. Mines and minerals — 'Conversion of coal — evidence.—In an action for conversion of coal on adjacent land by a lessee of a coal mine, evidence held to sustain a finding that the lessor told the lessee to mine the coal in question.
    3. Mines and mineral — unlawful conversion of coal — measure of damages. — Where coal is unlawfully extracted from another’s premises through honest mistake, the measure of damages is the value of the ore in place in the ground; but where the taking is done wilfully and intentionally, the measure is the value of the ore at the mouth of the mine.
    4. Mines and minerals — presumption as to taking of ore. — The wrongful taking of ore is presumed to he intentional and wilful, but the presumption may be overcome.
    5. Mines and minerals — unintentional trespass. — Where a lessor instructed a lessee to mine all the coal in a vein which in fact ran into an adjacent proprietor’s land, and it was fairly inferable that they thought the vein would run out before reaching the boundary of his claim, the lessor and lessee were inadvertent trespassers, and liable only for the value of the coal as it lay in the ground.
    6. Mines and minerals — damages.—In an action for conversion of coal by a lessor through his lessee, damages assessed on the basis of the lessor’s royalty held improper.
    7. Mines and minerals — interest on value of converted coal.— In an action for conversion of coal, interest on its value in place in the ground from the time of conversion held proper.

      Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    modified.
    STATEMENT OE PACTS.
    The Spadra Coal Company instituted this suit in the circuit court agáinst A. F. Ward, M. M. McWilliams, N. B. Clark, James Dalton and James Hardin, to recover damages in the sum of $18,800, on account of the wilful and intentional trespass of the defendants in mining coal on their lands. On motion of the defendants, and without objection, the case was transferred to the chancery court.
    The record shows that A. F. Ward, M. M. McWil-liams and N. B. Clark had a lease to mine coal on eighty acres of land in Johnson County, Arkansas. The land is described in their lease, and one forty-acre tract lies north of the other forty-acre tract. Their mine was known as the Possum Trot mine, and, after they had mined coal on it for about thirteen years, they leased their mine to James Hardin and James Dalton. They had about $35,000 worth of coal mining machinery and equipment at the time they leased the mine to Hardin and Dalton. They had also spent several hundred dollars in getting their coal tracks repaired before they, leased the mine. The Spadra Coal Company operated a mine called the Sunshine mine, which was on the forty acres of land immediately west of one of the forty acres of land mined by the defendants.
    Dalton and Hardin, while operating the mine under their lease from the defendants, Ward, McWilliams and Clark, took 4,005 tons of coal from the land on which the Spadra Coal Company operated a mine, and paid to their lessors a royalty of 75 cents per ton, which was the contract price provided in their lease. The plaintiff introduced evidence tending to show that this coal was wilfully and intentionally mined by the defendants. On the other hand, the evidence for the defendants, McWil-liams, Ward and Clark, tends to show that the coal in question was not wilfully and intentionally taken from the land of the plaintiff, and that they had no knowledge that their codefendants, Dalton and Hardin, had mined any coal from the land on which the plaintiff had a lease.
    The testimony on this phase of the case and as to the value of the coal in question will he more particularly stated and referred to in the opinion.
    The chancellor found the issues in favor of the defendants James Dalton and James Harding, and against the defendants A. F. Ward, M. M. McWilliams and N. R. Clark. It was therefore decreed that the plaintiff recover from the defendants A. F. Ward, M. M. McWilliams and N. R. Clark the sum of $3,003.74, which is found to he the value of 4,005 tons of coal at 75 cents per ton, which said defendants wrongfully mined from the land of the plaintiff. It is also decreed that the plaintiff should recover from the defendants $550.75 interest.
    The defendants Ward, McWilliams and Clark have duly prosecuted an appeal to this court.

      Jesse Reynolds, for appellants.

      G. O. Patterson, for appellee.
   Hart, J.,

(after stating the facts). The defendants Dalton and Hardin had leased a coal mine, together with its mining machinery and equipment, from the defendants "Ward, McWilliams and Clark, and agreed to pay them a royalty at the rate of 75 cents per ton for all coal taker from the mine hy them. They -wrongfully mined 4,005 tons of coal on an adjoining tract belonging to the plaintiff, and paid the royalty on this coal to their lessors.

Under these circumstances the defendants Dalton and Hardin were trespassers, and, the tort having been waived hy the plaintiff, it had a right to sue Dalton and Hardin for the value of the coal taken hy them. To entitle the plaintiff to a judgment against Ward, McWil-liams and Clark, the lessors of Dalton and Hardin, it must not only appear that they were landlords of Dalton aud Hardin, who took the coal, hut also that they participated in some way in the act of going into the plaintiff’s land to get it. In other words, it must appear that the defendants acted in concert in committing tlie trespass complained of, or that the lessors in some way aided and assisted their lessees to actually commit the trespass. This is in application of the well-known rule that, to render one man liable in trespass for the acts of others, it must appear either that they acted in concert or that the act of the individual sought to be charged ordinarily and naturally produced the acts of the others. Offerman v. Starr, 2 Pa. St. 394; Bard and Wenrich v. Yohn, 26 Pa. St. 482; and Dundas v. Muhlenberg's Executors, 35 Pa. St. 351.

On the part of the plaintiff it was shown that McWil-liams, acting for himself and Ward and Clark, told Hardin, one of the lessees, to go ahead and mine the coal which is the subject of the controversy in this case. This fact was testified to by James ¡Hardin. Hardin said that McWilliams told him to go ahead and take the coal out between their mine and the Sunshine mine. McWilliams said that the Sunshine mine could not get to the coal in question, and, for that reason, told him to take the whole thing out. On the other hand, McWilliams denied having told Hardin to take out the coal in question, and said that he did not know anything about it until the plaintiff demanded payment for the coal taken, which was some time after the royalty had been paid them for the coal taken.

The .chancellor found the issues on this point in favor of the plaintiff, and it cannot be said that his finding is against the weight of the evidence. Hence it may be said to be established that McWilliams and his associates acted in concert with Dalton and Hardin in taking out the coal in question, or at least advised them to mine. Therefore, under the principles of law above announced, they became jointly liable to the plaintiff for the value of the coal taken.

The measure of damages in an action for unlawfully extracting ore from the premises' of another depends upon whether the invasion of the premises was through inadvertence or honest mistake, or was willful. If the trespass is the result of an honest mistake, the defendant is compelled to pay only the value of the ore as it was when originally in place in the ground. If, on the other hand, the defendant takes out the ore wilfully and intentionally, he must pay the value of the ore as found at the mouth of the mine. Lindley on Mines, 3 ed., vol. 3, par. 868; Hall v. Abraham 44 Ore. 75 Pac. 882; Central Coal & Coke Co. v. Penny 173 Fed. 340; Resurrection Gold Min. Co. v. Fortune Gold Min. Co. 129 Fed. 668; Lyons v. Central Coal & Coke Co. 239 Mo. 626, 144 S. W. 503; and Ege v. Kille, 84 Pa. 333.

The measure of damages for wrongfully taking ore from the la.nd of another, through mistake or in good faith, is the value of the ore in place in the mine. The wrongful taking of the ore raises a presumption of fact that the trespasser took it intentionally and wilfully, but this presumption may be overcome by the evidence in the case.

As we have already seen, the chancellor accepted the evidence for the plaintiff on the question of McWilliams and his associates advising their lessees to mine the ore in controversy. James Hardin, one of the lessees, was the witness who testified for the plaintiff on this point. His evidence establishes the fact that his lessors and the plaintiff both operated mines on adjoining forty-acre tracts of land. His lessors had been mining the ore themselves, and, in consequence, knew the direction of the vein they were mining. They knew that they were near the boundary line of their own mine, and it is fairly infer-able from the testimony of Hardin, taken as a whole, that they thought the vein would run out by the time their boundary line was reached, or, in any event, soon after-wards; that they did not believe that it would be practicable for the plaintiff to mine the coal in question.

Under these circumstances, we think that, while the defendants were trespassers, they were innocent trespassers within the meaning of the rule relative to the measure of damages, and that they took the coal inadvertently, or in the honest belief that they had a right to do so. Hence they were only liable for the value of the coal as it lay in the ground.

It results from the authorities cited above that such value depends upon the position and circumstances of each particular mine, on the quality of the ore, the cost of mining and preparing it for market, its proximity to the places where it is to be used or sold, and on the facilities for transportation.

On these points there is a lack of evidence in the record. The chancellor allowed 75 cents per ton on the ore taken as its value. There is nothing in the record to show where he got this value, unless it is the royalty provided for in the lease between McWilliams and his associates and Dalton and Hardin. The royalty in this lease cannot be considered under the circumstances of this case as a proper method in arriving at the value of the ore in the ground. The work of mining is one of magnitude, and requires a considerable outlay of money. In this case the lessors had mining machinery and equipment of the value of $35,000. They had also expended several hundred dollars in track-laying. These outlays were proper matters to be considered in fixing the royalty they were to receive in leasing their mine. Hence the royalty provided for in the lease could not be considered as a proper method of ascertaining the value of the coal as it originally lay in the ground.

On the other hand, there was evidence in the record which tended to fix the value of the coal in the ground. The plaintiff and the defendants were coal operators. The evidence in the record tends to show that the royalty usually paid in that locality for mining* coal, where the machinery and equipment was not considered, was ten cents for slack coal and fifteen cents for hard coal. This evidence is not disputed, and should have been taken by the chancellor in fixing the value of the coal taken. The coal taken amounted to 4,005 tons. It is fairly inferable that it was hard coal. The value of the coal taken amounted, in round numbers, to $600.

Interest on the value of the coal in place at the time of the conversion was properly directed to be allowed. It is as necessary a part of complete indemnity as the value itself. It has always been the law of this State that interest from the time of conversion, in addition to the value of the property converted, is allowed as damages. The coal in question was taken in November and December, 1920. The trial Was had on the 19th day of December, 1923. Interest on $600 for three years at six per cent, would amount to $108.

The result of our views is that the measure of damages is the value of the coal in place at the time of the conversion, which we have found to be $600, with interest up to the time of the trial, amounting to $108. Therefore the decree of the chancei’y court must be reversed, and a decree will be entered here for $708, with interest at six per cent, from the 19th day of December, 1923.

It is so ordered.


author: Smith, J.

text:
    Bank of Weiner v. Jonesboro Trust Company.
    Opinion delivered May 11, 1925.
    1. Mortgages — filing of unacknowledged mortgage. — A chattel mortgage, the acknowledgment of which was not signed by the notary public who took the acknowledgment, was not entitled to be filed under Crawford & Moses’ Digest, § 7384; and such mortgage constituted no Hen as to third parties, even though they had actual notice of it.
    2. Mortgages — effect of suit to foreclose and appointment of receiver. — Where a mortgagee of land brings suit to foreclosure his mortgage and procures the appointment of a receiver to take charge of the land, this has the effect of impounding the unsevered crop then growing on the land.
    3. Appeal and error — issue not raised below. — In a foreclosure suit the issue that the court erred in decreeing a sale of a growing crop of cotton, instead of entering a decree for the rental value of the land, not being raised by the pleadings below, could not be raised on appeal.

      Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Hawthorne, Hcmthorne & Wheatley, for appellant.

      Horace Sloan, for appellee.
   Smith, J.

On January 12, 1923, the Jonesboro Trust Company took a real estate mortgage on certain lands belonging to Otto Ruegger. On January 18, 1923, the Bank of Weiner took a chattel mortgage on a rice crop to be grown by Ruegger on said lands during the year 1923. The chattel mortgage was signed by Ruegger, and the notary public attached his seal thereto, but failed to sign his name to the certificate of acknowledgment. This chattel mortgage was forwarded to the circuit clerk of Poinsett County, in which the property was situated, “to be filed but not recorded,” as authorized by § 7384, C. & M. Digest, and was so marked filed by the clerk on the 19th day of January, 1923. This chattel mortgage was given to secure an indebtedness then due the bank and to secure future advances to be made by it.

After the rice crop had matured and cutting had begun, the Jonesboro Trust Company filed suit to foreclose its mortgage, and had a receiver appointed by the chancellor in vacation. The holder of a prior mortgage and the Bank of Weiner were made parties to this proceeding, and, at the final hearing, the court held that, as the notary public did not put his signature to the certificate of acknowledgment, the mortgage was void as against third parties, and the trust company, by reason of having a receiver appointed, was entitled to all of Ruegger’s crop not cut at the time of the receiver’s appointment, and the Bank of Weiner, hereinafter referred to as the bank, has appealed.

The bank contends that the mortgage was good as between it and Ruegger, that the receiver took no greater interest in Ruegger’s crop than Ruegger had, that its mortgage was an equitable one, and that, in any event, (he trust company would be entitled only to the rents and profits of the land, and not the entire nngathered crop.

It was alleged in the hill to foreclose that Ruegger was insolvent, and that the land was not of sufficient value to pay the indebtedness secured by appellee’s mortgage and the prior mortgage, and that the crop would be required for that purpose. The truth of this allegation was shown by the fact that the proceeds of the sale of the land, including the crop, under the decree of foreclosure, were insufficient to pay the debt due appellee.

The failure of the notary public to sign the certificate of acknowledgment to the chattel mortgage executed to the bank rendered the certificate void, and that mortgage was in effect an unacknowledged instrument. Davis v. Hale, 114 Ark. 426. This being true, the chattel mortgage was not entitled to be recorded, and the fact that it was filed with the clerk is unavailing, and, while it was good between the parties thereto, it constituted no lien on the property therein described as to third parties, and was not binding on them, even though they had had actual notice of it. Gross v. Fombey, 54 Ark. 179.

In regard to the contention that the mortgage to the bank is an equitable one and should be given priority as such, it may be said that this is a legal mortgage. It was in fact good between the parties thereto, and might have been foreclosed as between the parties, without the intervention of a court of equity. But, so far as third parties were concerned, this chattel mortgage was not a mortgage at all, because it had not been properly acknowledged, and was not therefore entitled to be placed of record. Sections 7380, 7381, C. & M. Digest; Merchants’ & Planters’ Bank v. Citizens’ Bank, 125 Ark. 131, 135, and the numerous other oases cited in appellee’s brief.

The mortgage to appellee contained a clanse accelerating the maturity of the debt there secured in the event Ruegger made default in the payment of the taxes due on the land mortgaged, and it was alleged and shown that Ruegger had made default in this respect.

Upon filing this suit to foreclose, appellee asked that a receiver he appointed, and this was done, and the receiver gathered the portion of the crop which, at that time, was unsevered from the soil, and this unsevered crop was sold under the decree of the court.

Appellee was entitled, under the allegations of the complaint, to have a receiver appointed to take charge of the land 8612, C. & M. Digest), and, when he did so, this action resulted in impounding the unsevered crop then growing on the land.

In the case of Osburn v. Lindley, 163 Ark. 260, the court said: “The bringing of this action (a suit to foreclose a vendor’s lien) and the petition asking for the appointment of a receiver to take charge of the rents and profits of the lands on which the vendor’s lien existed, had the effect of impounding the proceeds of those rents and profits in the hands of the receiver for the benefit of the vendor, to he appropriated in satisfaction of the decree in his favor for the purchase money. The rents and profits on the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself. A vendor’s lien in equity is of the same nature as a mortgage, and is treated and enforced as such. (Citing cases).” See also Lee v. Bandimere, 140 Ark. 277; Gailey v. Ricketts, 123 Ark. 18; Oliver v. Deffenbaugh, 166 Ark. 118.

It is finally insisted that the court below erred in decreeing a sale of the crop, and should have given appel-lee a decree for the rental value of the land only. In reply to this contention, it may he said that no such issue was raised by the pleadings in the court below; and it may he further said that Ruegger has not appealed, and, as the hank has no lien on the crop, it is in no position to raise the question.

Moreover, the lien of appellee’s mortgage on the land attached to the growing crop when the land was impounded for the purpose of foreclosure, and the crop was therefore subject to sale along with the land, as it had not been severed by the execution of a valid mortgage thereon, or otherwise.

It is true appellee’s mortgage did not specifically describe the crop, but the mortgage to the bank on the crop would have been a lien thereon only from the date of its filing, and, as it was not entitled to be filed, it must be treated as not having been filed, and the lien of the mortgage on the land attached to the crop growing thereon at the time possession was taken of the land for the purpose of foreclosure. The court did not therefore err in directing the sale of the unsevered crop, instead of rendering a decree for the rental value of the land only.

The decree is correct, and is affirmed.

      Oases cited in appellee’s brief: Challis v. German Nat. Bank, 56 Ark. 88; Main v. Alexander, 9 Ark. 112; Hannah v. Carrington, 18 Ark. 90; Jarratt v. McDaniel, 32 Ark. 598; Haskill v. Sevier, 25, Ark. 153. (Rep.)


text:
    Reed Oil Company v. Shnable.
    Opinion delivered May 11, 1925.
    Fixtures — right op tenant to remove improvements. — Where a lease provided that improvements could he placed on the land at the lessee’s option, but could not he removed unless the rent is paid in full, the lessee was entitled to remove such improvements •on vacating the premises before expiration of the term of the lease, without paying the rent for the unexpired term; the requirement of payment before removal referring to rent due on vacating.
    Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    reversed.

      R. W. Wilso'ii and W. N. Ivie, for appellant.

      Ruth Shnable and Mike Danaher and Palmer Dana-her, for appellee.
   Smith, J.

This case was heard in the court below on the complaint and answer, the material portions of which pleadings are as follows: It was alleged in the complaint that appellant leased a certain lot in the city of Pine Bluff from appellee. This lease contract was in writing, and contained the following provisions:

"The lessee agrees to pay to the lessor as rent for the period of this lease the snm of thirty-five dollars ($35) per month, the first monthly installment of rent to be due and payable May 17, 1922, and one to be due and payable on the 17th of each and every month thereafter during the term of this lease — said rent being payable in advance for each month, until all of said installments shall have been paid; said rent being evidenced by the 48 promissory notes of the lessee in favor of the lessor, dated May 17, 1922, in the sums above mentioned, and payable as above set forth, bearing interest from maturity at the rate of 10 per cent, per annum until paid.
“All improvements placed on said premises shall he made at the lessee’s expense, and lessor shall not be required to make any improvements or repairs on said place whatever, and, at the termination of this lease, lessee may remove any buildings or other improvements placed on the land by them, provided the rent is paid in full. Lessee hereby agrees to pay all increase in taxes caused by erection of buildings or other improvements on said leased premises, if any increase is made.”

Pursuant to this lease, appellant placed on the land certain tanks, a sheet-iron house, and a gasoline engine and gasoline pump, which, the complaint alleged, appellant was proceeding to take apart for removal from the land and to ship out of the State, and will take apart and remove unless enjoined from so doing.

It was further alleged that, “under said lease, there is.due the plaintiff the sum of $910' as rent to May 16, 3926, before the defendant, the Reed Oil Company, is entitled, under the provisions of said lease, to remove any buildings or improvements that it has placed on said premises.” •

The answer in effect put in issue the respective rights of the parties under the lease. It was not alleged in the complaint that the defendant was insolvent, but the answer denied that defendant was insolvent, and alleged ownership of property in this State subject to execution of the market value of $25,000. The answer denied that appellant was in arrears in the rent or intended to defeat appellee in the collection of any rent due her under the contract.

. The court found for the plaintiff on the pleadings, and entered a decree enjoining appellant from removing any of the fixtures which had been placed on the land, unless appellant would first pay all the rent which would accrue up to the expiration of the lease, and this appeal is from that decree.

In addition to the facts stated, there are certain other provisions of the lease, which are not material to the decision of the question presented. The lease imposed the affirmative obligation on appellant to pay $35 per month rent on the 17th of each month for forty-eight consecutive months.

By its express provisions the lease contract exempted appellant from the duty of making any improvements or repairs on the lot, but gave it the option of doing so, and the character of such improvements as might be placed on the lot as trade fixtures was expressly recognized, for the right of removal was given. But it is insisted —and the court below found — that the lease did not give this right of removal until the rént for the entire term had been paid.

After granting the right of removal, the lease does recite that this right may be exercised “provided the rent is paid in full.” The parties no doubt contemplated that the lot would be occupied by the appellant for the entire term of the lease and that improvements would be placed on the lot, and we think the meaning of this proviso is that, after so occupying the land for the time limited, improvements could not be removed unless all ■rents then due should be paid.

There was no obligation on the part of appellant to place improvements on the land. This was a right to be exercised at its election, but, if improvements were placed on the land, they could not be removed if appellant was in arrears in the payment of rent at a time when the light of removal was sought to be exercised. Now there is no allegation that appellant is in default in the payment of accrued rent. It is only alleged that there is rent which will mature and be payable during the remainder of the lease.

The instant case is very similar to the case of Buffalo Zinc & Copper Co. v. Hale, 136 Ark. 10, and is controlled by the principles there announced.

In that case certain buildings in question which the lessee sought to remove from the land leased were erected under a contract by the express terms of which the right of removal was reserved, as in the instant case, and we there said that the building's did not therefore become a part of the realty, but remained the lessee’s personal property. In that case, as in this, the contract of lease did not require the lessee to erect the fixtures, and the lessee had the right to erect the fixtures or not, as it pleased, and the rent to be paid was not dependent on the lessee’s action in this respect. A fixed rental was provided for in any event.

It was there contended that the right of removal would not have existed but for the contract, and that the provisions of the contract which gave the right of removal conferred the right in the event only that all of the rent be paid for the full period of the lease. We answered that contention by saying that it appeared from the lease contract itself that the buildings were erected on the leased premises solely for the purpose of enabling the lessee to carry on a business or trade, and were intended for its own use and convenience, and not for the purpose of making or increasing the value of the lots or the value of their use, and that the right to take possession of the property was given only after forfeiture had been declared, and that the lessor could not take possession of the buildings so as to permit the exercise of ownership and control of them by the lessee, when .no right to declare a forfeiture existed.

In that case, as in this, no right was given the lessor to collect rent except as it became due, nor was there a showing that the lessee would not continue the performance of the contract with reference to the payment of rent. There is here no allegation of insolvency; on the contrary, the allegation of the answer is that appellant owns unincumbered property in this State subject to execution of the value of $'25,000.

Under these facts, the removal of the trade fixtures should not have been enjoined, and the decree so ordering will be reversed, and the injunction will be dissolved.


text:
    Mack v. Paragould & Hopkins Bridge Road Imp. Dist.
    Opinion delivered May 11, 1925.
    1. Bridges — construction as part op hihgway. — A bridge 19,000 feet long to be constructed at an expenditure of $57,000, as part of a road improvement to cost $190,000 held not so excessive in cost -as to require that it be constructed as a separate improvement.
    2. Highways — construction of plans. — Plans for construction of ■a highway, described in landowner’s petition and the county court orders, held not to call for improvements of any city streets.
    S. Highways — validity op improvement district. — The fact that a proposed road improvement under the control of a single set of commissioners extended to the middle of a river which constituted the State boundary did not invalidate the district, where it there connected with a similar improvement by the .adjoining State, so ■as to form a completed bridge across the river.
    Appeal from. Greene Chancery CourtJ. M. Futrell, Chancellor;
    affirmed.

      Jeff Bratton, for appellant.

      D. G. Beauchamp, for appellee.
   Smith, J.

Appellants are the owners of real estate lying within the Paragould and Hopkins Bridge Road Improvement District No. One of Greene County, Arkansas, and have by this suit attacked the validity of that district.

It was alleged in the complaint which appellants filed that the district is void for the reason that, in the plans nnd specifications prepared by the State Highway Department and filed in the county court of Greene County, upon which the final petition signed by the landowners was predicated, as required by law, a bridge or viaduct is provided for extending from the west line of the lowlands adjacent to the St. Francis River to the center of the channel of said stream. This bridge .or viaduct is 1,900 feet in length, and the cost of its con-structionis estimated at $57,000, and it is alleged that the district has no authority or power to build this bridge or viaduct.

It was also alleged that the map of the district describing the proposed improvement, which was attached to the final petition of the landowners, shows a road to be improved which extends beyond the boundary of the proposed district, and that this fact renders the district void.

The district in question was organized upon the petition of the landowners, under the provisions of what is known as the Alexander road law (§ 5399 et seq., C. & M. Digest).

It appears from the record in the case that the purpose of the proposed improvement is to connect the citv of Paragould with an improved highway which has been built in the State of Missouri to the State line, the improved road in that State extending to the center of the St. Francis River, which forms the boundary between the two States at that point.

St. Francis River, at the point where it is proposed to cross it by connecting np with a bridge built in Missouri to the State line, is a very small, narrow stream, but there is an annual overflow which spreads over its banks. Adjacent to the river is a sandy alluvial soil, which was not regárded as adapted to forming the base of an improved road, and the plans prepared by the State Highway Department called for the building of a viaduct or bridge over this area and across a drainage ditch and levee and over that part of the river proper lying in this State, and connecting with the portion of the bridge in the State of Missouri.

As has been said, the total length of the bridge or viaduct is 1,900 feet, of which the portion extending into the river proper is about 150 or 200 feet, and the portion spanning the ditch is between 100 and 150 feet. The remainder extends over the lowlands adjacent to the river.

It is insisted that the bridge or viaduct is of such magnitude that it can only be constructed as a separate improvement, and the case of Van Dyke v. Mack, 139 Ark. 524, is cited as sustaining that contention.

The case just cited involved the construction of a special act of the General Assembly creating the Arkansas & Missouri Highway Improvement District, by the terms of which improvement districts were created in each of the counties through which the proposed road ran, to construct the portion of the road lying within the respective counties. One of these districts was in Jackson County, through which the White River flows, and it was insisted that the statute creating the district authorized the commissioners of the district in Jackson County to build a bridge over White River.

Section 4 of the special act creating that district authorized the commissioners “to construct bridges, subways, culverts, and all necessary appurtenances or said roads,” and we held that the language of the statute quoted did not authorize the commissioners to construct a bridge across White River as a part of the road to be improved, for the reason that it was manifestly intended by the statute to authorize only such bridges, subways and culverts as would constitute necessary appurtenances to the road'to be constructed, and not bridges of such size and magnitude as would constitute separate improvements.

Section 7 of the Alexander law (which is § 5409, C. & M. Digest) provides that the plans for a proposed road shall show the grading to be done, the bridges and culverts to be constructed, and the other work necessary to construct the proposed improvement, and confers power to build such bridges and culverts as are a necessary part of the road, and are not of such magnitude as to constitute a separate improvement.

The facts here are very different from those in the case of Van Dyke v. Mack, supra, and are very nearly like those in the case of Bullock v. Dermott-Collins Road Imp. Dist., 155 Ark. 176, where the proposed road crossed a large creek and Bayou Bartholomew, and bridges costing from ten to twelve thousand dollars over each stream were required. Bayou Bartholomew is a stream of approximately the size of the St. Francis River where the road in the instant case crosses it.

Here the bridge or viaduct extends to the- center of the St. Francis River, a distance of less than 200 feet; it crosses a drainage ditch and levee, which requires nearly the same amount of bridge work, and the remainder of the 1,900 feet, comprising the total'length of the bridge or viaduct, is over land which might be crossed by building an embankment, if a bridge or viaduct were not regarded by the engineers who formulated and prepared the plans as being more desirable,, and this bridge or viaduct is for the larger part of the distance merely an elevated highway. The estimated cost of the bridge or viaduct is $30 per running foot.

The total estimated cost of the whole improvement is $190,400, and we do not think the proportionate cost of tlie bridge or viaduct is so large that it could only be constructed as a separate improvement, hut we think that, like the bridges in the case of Bullock v. Dermott-Collins Road Imp. Dist., supra, it is a component part of one improvement.

Of the second ground of attack but little need be said. The west end of the road is at the east end of Junction Street, in the city of Paragould, which street extends to the boundary of the city. In other words, the proposed road extends to the east boundary of the city of Paragould, and runs for several miles on section lines before reaching the city, and the line of this road, as marked by the engineer on the plat, extends into the city for a short distance, as if it were proposed to improve a portion of Junction Street in that city, and which runs beyond the boundary of the district. This line does extend beyond the boundary of the district, but the portion of the road to be improved is colored and the portion of the line extending into the city is not colored. Moreover, the petition circulated among and signed by the landowners described the road as beginning at the east end of Junction Street in the city of Paragould, and the orders of the county court so described the road to be improved, and we do not think it can be fairly contended that the plans called for the improvement of a portion of the street in the city of Paragould which is not in the district.

It does not appear from the record before us that the proposed improvement is open to the objections which proved fatal to the proposed improvement in the cases of Mullins v. Little Rock, 113 Ark. 590, and Mullins v. Commissioners’ Bridge Imp. Dist. No. 2, 114 Ark. 324. Each of those cases involved the construction of a bridge across the Arkansas River at the city of Little Rock. In the first of those cases the proposed improvement was defeated because, as was held by this court, there was no provision in the law for a local improvement district to aid a county in the construction of a bridge connecting two cities, as was proposed in thax ease. In the second of those appeals, which involved the same improvement, it was held that there conld not he two separate sets of commissioners to bnild a single improvement.

In the instant case it appears from the record before ns that the commissioners will have sole control of the proposed improvement, which lies entirely in the district, and although it extends to the center of the St. Francis River, that fact will not defeat the construction of the improvement because it there connects with a similar improvement, and, when so connected, a completed bridge 'will exist and will afford a facility for crossing the river.

We think the court below was correct in dismissing the complaint as being without equity, and that decree is affirmed.


author: HumphReys, J.

text:
    Baily v. Eakes.
    Opinion delivered May 11, 1925.
    MORTGAGES — EFFECTS OF MERGER IN FEE — INTERVENING LEASE. — Upon a mortgagee accepting a deed to the mortgaged property, his rights ■under the mortgage were merged in the fee, .subject to any intervening incumlbrances, including a lease of which he had no knowledge, so that he could not collect' from the tenant rents previously paid to the mortgagor.
    Appeal from Pope Chancery Court; W. E. Atlmi- ’ son,' Chancellor;
    affirmed.

      Hays, Priddy & Hays and Robert Bailey, for appel-lee.
   HumphReys, J.

W. J. Martin, one of the appellees, owned two .farms in Pope County. He executed a mortgage upon one of the' farms for $1,800 and upon the other for $1,500. Subsequently he executed a second mortgage upon both farms to Mrs. Electra Powell to secure an indebtedness of $1,462.39. Mrs. Electra Powell transferred this note and mortgage to appellant, without recourse, before maturity, for a valuable consideration. W. J. Martin resided upon the place known as the Martin homestead until the latter part of the year 1923. He sold the other place to D. F. Ward, who assumed the $1,500 mortgage thereon and a proportionate part of the mortgage to appellant. In the latter part of 1923 W. J. Martin leased the home place to Dow Eakes for the year 1924 for $350, which amount was paid in advance in cash. The mortgages were all past due at the time said lease was executed. This suit was then filed by appellant to foreclose his mortgage, subject to the first mortgages upon the property. W. J. Martin, Rosa B. Martin, his wife; D. F. Ward, M. M. Ward, his wife, and Dow Eakes and his wife were made parties defendant. After the institution of the suit, W. J. Martin and his wife conveyed the home place to appellant, and appellant accepted the deed with knowledge that, before the institution of the foreclosure proceedings, Dow Eakes had leased the home place for the year 3924 and had paid therefor in advance $350 in cash. D. F. Ward and his wife conveyed the other place to appellant. After the deeds were obtained the court dismissed the foreclosure suit against the Martins and Wards, at the request of appellant, and permitted him to amend his bill against Dow Eakes and his wife by alleging that they were occupying the home place without a verbal or written agreement with appellant, and by praying for a receiver to take charge of the lands for the year 3924, and for judgment against them for rent upon the property for the year 1924.

Dow Eakes and his wife filed a demurrer to the amended bill upon the ground that the facts stated therein did not constitute a cause of action against them.

The demurrer was sustained, and appellant refused to plead further, whereupon the court dismissed his bill for the want of equity, from which is this appeal.

Appellant contends for a reversal of the decree upon the theory that, after the execution and record of the mortgage, the mortgagor had no right to execute a lease or create a tenancy which would prevent the mortgagee from foreclosing his mortgage. This contention is made upon the erroneous assumption that appellant was a mortgagee after he accepted deeds to the lands from the Martins and "Wards. After the execution and acceptance of the deeds, appellee’s rights as a mortgagee merged into his estate as owner in fee of the lands, subject, of course, to other intervening incumbrances of which he had knowledge. One of the intervening incumbrances was the lease executed by Martin to Dow Eakes for the year 1924 for $350 cash in advance. Appellant’s amended bill contains the following admission:

“It is admitted that, before the proceedings to foreclose said mortgage were instituted, the defendant, Dow Eakes, leased said premises from W. J. Martin for the year 1924, and paid him. $350 cash, all of which was known to appellant at the time he accepted the deed in the settlement of his demand.”

In accepting the deed with knowledge of the tenancy, appellant ceased to be a mortgagee and assumed the relationship of landlord to Dow Bakes and wife. He voluntarily stepped into the shoes of Martin, and his right is no greater than Martin’s right. Martin would have no right to collect the rents a second time, neither would his grantee, the appellant herein.

No error appearing, the decree is affirmed.


author: Humphreys, J.

text:
    Reisinger v. Dulaney.
    Opinion delivered May 11, 1925.
    1. Landlord and tenant — gross mistake in acreage. — In an action by landlords on a rental note and contract for lease of a farm at specified price per acre, which contract stated that 762 acres of land were in cultivation, where there was testimony tending' to prove a mistake in acreage of cultivated land of over 200 acres, and that plaintiffs subsequently agreed to correct the acreage, the case was properly submitted to .the jury, as against ia request for peremptory instruction to find for the plaintiffs.
    2. Appeal and error — instruction—harmless error. — In an action on a rental note and contract for lease of a farm, error, if any, in the admission of testimony tending to show that the contract which stated the amount of acreage in cultivation was not binding on the parties held cured by an instruction that the recital of such stated amount was binding unless the jury should find that it was the result of a gross mistake or unless the contract was subsequently changed by mutual agreement of the parties.
    3. Landlord and tenant — new agreement — consideration.— Where a dispute arose between the parties to a rental contract as to the amount of acreage in cultivation, the settlement of such dispute furnishes sufficient consideration for a new agreement reducing the amount of acfeage and granting a refund of rent paid.
    Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    affirmed.

      R. V. Wheeler and Wils Davis, for appellant.

      Caraway é Isom, for appellee.
   Humphreys, J.

This is a suit upon a rental note and contract for the year 1923, and an attachment proceeding in aid thereof, brought by appellants against appellees in the circuit court of Crittenden County. Appellants leased to appellees 762 acres of land, more or less, open for cultivation, iji sections 7, 18, 19, and 30. township 9 north, range 7 east, in Crittenden County, at an annual rental of $10 per acre for the years 1922,1923, 1924,1925, and 1926. The contract contains a clause and paragraph pertinent to the issues involved. The clause is in the paragraph describing the several farms specified in the lease, and is as follows:

“* * * of which land (referring to the various farms) there are 762 acres of land in cultivation, more or less, according to the survey made by Cushman, March, 1920 * * V’

■The paragraph is as follows: “It is agreed by both parties that this acreage shall stand for the years 1922 and 1923, but for the year 1924 first parties can, if they so elect, have a new survey made, and that survey shall govern the acreage in cultivation for the years 1924, 1925 and 1926.”

Appellee, J. B. Dulaney, filed a separate answer and cross-complaint, alleging that he was the sole party in interest, having succeeded to the rights of the other appellees, and admitting the execution of the note and contract, and alleging a gross mistake in the Cushman survey as to the acreage of lands in cultivation and a contemporaneous agreement to correct same, as well as a subsequent agreement, when he paid the rent in. 1922, to ascertain the correct acreage by another survey and to rectify it. The cross-complaint contained an allegation that, according to the last survey, there were only 560 acres of land on the Various farms in cultivation, and that, under .the subsequent agreement modifying the first contract, he was entitled to a refund on the 1922 rent paid by him of $2,020 with interest thereon, and was also entitled to a credit of $600 for ditches which he had dug.

Appellants filed an answer denying each and every material allegation in the cross-complaint.

The right to attach the 'crops was not questioned.

' The cause was submitted upon the pleadings, testimony and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $3,196.25, from which is this appeal.

In the course of the trial said appellee was permitted, over the objection and exception of appellants, to introduce two letters in support of his allegation that there was a contemporaneous agreement to correct the Cushman survey as to acreage in cultivation, if said survey was incorrect. The letters tended to show such an agreement. The record is made up largely of testimony introduced responsive to the issues of whether there was any shortage in the acreage of cultivated lands, and, if so, how much, and whether there was a modification of the original contract to ascertain the correct acreage in cultivation hy another survey to be used as a criterion for a refund of the 1922 rent and in settlement of the rents in the future. Another survey was made hy Cy Bond, which showed that only 550.4 acres were in cultivation on the several farms described in the lease. The Cushman survey showed that 762 acres were in cultivation on the various farms. Both surveys were introduced, and each engineer testified in support of his own survey. Both surveyors were civil engineers. Each survey was supported hy other witnesses who were familiar with the lands. The testimony was in sharp conflict upon the other issue. On the one hand, J. B. Dulaney and Louis Barton testified that a dispute had arisen between the parties as to the number of acres in cultivation in the several farms, and that Dulaney paid the 1922 rent under an agreement that the land should be resurveyed, and, if there was less land than shown by the Cushman survey, Dulaney should receive a credit in the next settlement for the shortage, at the rate of $10 per acre. On the other hand, F. W. Reisinger testified that, when Dulaney settled with him, he told Dulaney that, if he could prove to Cushman that his survey of 1920 included wild lands as lands in cultivation, he would deduct for the shortage in the next settlement, and denied that he told Reisinger, in the presence of Louis Barton, that, if Dulaney would pay appellee rent for 1922, witness would have the Cushman survey corrected and account to him for the shortage. It was admitted that appellee was entitled to a credit of $191.25 for ditching.

Appellants contend for a reversal of the judgment upon the theory that the contract as written was binding upon the parties under the disputed facts in the case, and that the court erred in not instructing a verdict for them. It is true that the contract is unambiguous, and means that the Cushman survey should govern as to acreage for the years 1922 and 1923.. It is also true that, the testimony does not show that the contract was induced through fraudulent misrepresentations of appellants. It is also true that the words “more or less,” after the description of the lands, would not justify the admission of testimony showing a material variation in the acreage, as such words are construed to apply,to slight variations in quantity when used in deeds ox-leases; but, notwithstanding these things, there is a rule of law exempting parties from the performance of a contract which contains such a gross mistake that it would amount to a fraud in law to enforce it. This rule is applicable in the instant case; for there is testimony tending to show a mistake in acreage of over 200 acres, which was not known at the time by the parties to the contract. There is also a rule of law that parties by mutual agreement may, subsequent to the execution of a contract, change or modify it. This rule is also applicable in the instant case, for there was testimony tending to show that, if Dulaney would pay the rent in full for 1922, appellants would correct any error in the Cushman survey as to acreage and allow Dulaney a credit therefor.

The court correctly submitted this ease to the jury on both these theories, and did not err in refusing to peremptorily instruct a verdict for appellants.

If it be conceded that it was error to introduce the two letters as tending to show that the contract as .drawn was not binding upon the parties, the error was cured by instruction No. 2 to the effect that the Cushman survey was binding upon the parties as to acreage unless the jury should -find the specified acreage wa,s the result of a gross mistake, or unless the contract was subsequently changed by mutual agreement of the parties.

The contention of appellant that there was no consideration to support the new agreement, if made, is not sound, for a dispute had arisen between the parties as to the acreage, the settlement of which furnished sufficient consideration to support the new agreement.

Appellants make the farther contention that, under the undisputed facts, they are entitled to a judgment for $3,458.80. We think not, for there is a dispute in the evidence as to the amount of acreage in cultivation on the séveral tracts.

No error appearing, the judgment is affirmed.

Mr. Justice Smith not participating.


author: McCulloch, C. J.

text:
    Hogue v. Bundy.
    Opinion delivered May 18, 1925.
    1. MASTER AND seryant — negligence—EVIDENCE.—Testimony held to sustain a finding of negligence on defendant’s part in failing to instruct plaintiff, an inexperienced employee, how to operate a cut-off saw and in failing to keep a trestle near the saw was in a defective condition.
    2. Damages — personal injuries — excessiveness.—A verdict for $200 for loss of a finger, accompanied with considerable pain, held not excessive.
    Appeal from Jackson Circuit Court; Dene if. Coleman, Judge;
    affirmed.

      Boyce & Mach, for appellant.

      Gústame Jones, for appellee.
   McCulloch, C. J.

Appellant owns and operates a sawmill in Jackson County, and appellee was employed at the mill as a laborer. While working at a saw, one of appellee’s fingers was out off, and he has sued appellant to recover damages, alleging that the latter was guilty of negligence, the charge being that appellee was inexperienced in operating a saw of that kind, and was sent to work thereat without instructions or warning of danger, and also that a trestle, or “horse,” as termed by some of the witnesses, placed at the saw-table to lay slabs' on, was illy constructed, or was not properly fastened to the floor so as to prevent its being pulled over. There was another charge of negligence in the complaint with respect to failure to place a guard on the saw, but it appears that that charge has been abandoned.

It was. a cut-off saw at which appellee was working when injured. The saw was suspended above a table, and worked on the end of a rod, so that it could be pulled forward by the operator and brought in contact with the slab of timber which was being sawed. The saw swung across the table, and was about the middle of the table, something like four feet from the end. An ordinary carpenter’s trestle, or “horse,” was placed three feet from the table, and an end of the slab of timber being sawed was placed on the trestle, the other end extending over the table, in front of the saw. While in this position the operator would swing the saw forward and bring it in contact with the slab at the place where it was being sawed off, and, when the process of sawing the slab was completed, the saw was released, and it swung back to the other side of the table.

Appellee had been working at the mill for some time, but was engaged only in rough labor, such as carrying off stuff from the saws. He had never worked in the operation of the saw before the day in question, and there was a shortage of labor, and he claims that appellant directed him to go to work at the cut-off saw. There is a conflict on this point, as well as all other material points, as appellant himself and other witnesses testified that appellee was not directed to work at the cutoff saw, but was merely sent over to assist in carrying the slabs to the saw and in carrying away the pieces when sawed off. Appellee testified that, when he went to work at the saw, he laid a long slab across the table, with one énd resting on the trestle, and that, as he pulled the slab forward and drew the saw across the table to bring it into contact, the trestle either collapsed and fell down or was palled oyer, causing the end of the slab next to the saw to suddenly rise, and that it carried his hand with which he was holding the slab against the saw, and cut his finger off. lie testified that the trestle was not fastened to the floor, and that he was not aware of that fact at the time he was sent to work at the saw, and was given no instructions concerning the method of doing the work or of the danger attending the work at that place. Appellee was corroborated by the testimony' of other witnesses, but appellant and witnesses introduced by him testified to a wholly different state of facts. The testimony adduced by appellant tended to show that appellee was not sent to-work at the saw, and that he voluntarily attempted to operate the saw without directions, that the trestle, or “horse,” was not defective in any way, and that, if it turned over at all, it was caused by appellee’s own negligence. The verdict of the jury was in favor of appellee for the recovery of damages in the sum of $200, and it is contended here— the only grounds assigned for reversal — that the evidence is not sufficient to sustain the verdict.

¡We do not undertake to say where the weight of the testimony lies, but it is apparent that the evidence was legally sufficient- to sustain the verdict.' The testimony introduced by appellee tends to show that he was inexperienced in working at the cut-off saw, that he was given no instructions as to the proper method of work, nor any warning of the danger, and that, as he pulled the slab forward in an effort to bring it in contact with the saw, the trestle either fell down on account of being improperly constructed or that it was pulled over on account of its not being fastened to the floor, and that, this was the cause of appellee’s hand being brought into contact with the saw. The testimony was sufficient to sustain the charge of negligence in failing to give appel-lee proper instructions and also in failing to properly construct the trestle and fasten it to the floor and keep it in a reasonably safe condition.

There is no contention that the damages awarded are excessive. Appellee lost a finger and suffered considerable pain, and the sum allowed by the jury is not excessive.

Judgment affirmed.


text:
    Arkansas-Missouri Power Company v. Light & Power Improvement District No. 1.
    Opinion delivered May 18, 1925.
    1. Municipal corporation — departure from plans of improvement. — Where the- engineer of a light and power improvement district concluded that an engine of less capacity in power would be sufficient for use in operating- the plant, a change of the plans after the -assessment of benefits wias made by reducing the capacity of the engine did not constitute a departure from, the general plans formed by the commissioners of the- district in the first instance.
    2. Municipal corporations- — injunction against construction op improvement. — The owners of property in an improvement district may restrain the commissioners from entering on the construction of an improvement district when the funds will be insufficient to complete or pay for it.
    Appeal from -Clay Chancery Court, Eastern District ; J. ill. Eutrell, Chancellor;
    affirmed.

      Little, Buck d> Lasley, for appellant.

      W. E. Spence, for appellee.
   McCulloch, C. J.

An improvement designated as Light & Power Improvement District No. 1 of Piggott, Arkansas, was formed in the city of Piggott for the purpose of constructing and putting into operation an electric light plant. The* district was properly formed by ordinance of the city council, enacted on petition of owners of property in the district. A second petition asking for the construction of the improvement Was signed by a majority in value of the owners of property, and, after the appointment, of the commissioners by the city council,. plans were formed and benefits were assessed.

it is conceded in tfie present litigation tfiat tfie sum of $o2,»0U is tJae maximum amount wfiicfi can be legally spent for tfie construction of tfie improvement, and in tfie original plans and estimates tfie sum of $32,384 was fixed as tfie estimated cost.

Appellant is tfie owner of real property in tfie district, and instituted this action against tlie commissioners of tfie district to restrain them from proceeding with tfie construction of tfie improvement, alleging that tfie cost would exceed the amount wfiicfi could be spent and collected in taxes on the benefits. Tfie case was heard by tfie 'chancery court on oral and documentary evidence, and the court refused to grant relief. There was, in other words, a finding in favor of tfie appellees on tfie issue as to tfie cost of tfie construction of tfie improvement. There were numerous witnesses, and tfie testimony was conflicting, but we are unable to discover tfiat the preponderance of tfie evidence is against tfie finding of tfie chancery court. Tfie evidence adduced on the part of appellees tends to establish the probable cost of the improvement at not exceeding $31,552, and that it may cost less than that. The testimony introduced by appellant tends to show that the cost would be about $35,000. We conclude, as before stated, tfiat the finding of the chancellor is not against tfie preponderance of the evidence, and it will therefore not be disturbed.

It is also contended that tfie commissioners of tfie district exceeded their authority in changing the plans after the assessments of benefits were made. The only change made, as we understand the evidence, was in the reduction of the capacity of the engine. The evidence shows that the engineer of the district concluded that an engine of less capacity in power would be sufficient for use in operating the plant, and this change lessened, to some extent, the cost of tfie improvement. We do not think that this change in the plans was sufficient to constitute a departure from the general plans formed by the commissioners in the first instance, and an engine of any size sufficient to operate the plant was within the scope of the plans. The owners of property in the district have the right to restrain commissioners from entering upon the construction of an improvement when it is shown that the funds will be insufficient to complete it or to pay for it, hut the proof in the present case is not sufficient to warrant relief.

Decree affirmed.


author: Wood, J.

text:
    Ford v. Missouri Pacific Railroad Company.
    Opinion delivered May 18, 1925.
    1. Waters and watercourses — negligence—concurring causes.-Where a railroad’s defense to an action for causing an overflow by the construction of a ditch was that the overflow was caused (by the act of God, to excuse the railroad, such act of God must be the proximate and sole cause; and where the act of the railroad so mingled with the act of God as to toe an efficient and co-operating cause, the railroad would still be liable.
    2. Waters and watercourses — abstract instructions. — In an action against a railroad company for damages to plaintiff’s land caused toy the negligent construction of a. ditch, in the •absence of any evidence that plaintiff had control over the creek into which the ditch emptied, or that it was his duty to dislodge drifts and logs in such creek, held, an instruction submitting the issue as to whether plaintiff was negligent in failing to keep drifts and logs out of such creek was erroneous as abstract and as ignoring plaintiff’s contention that the railroad’s negligence was the proximate cause of the overflow of plaintiff’s land.
    3. Evidence — Photographs.—In an action against a railroad for damages from an overflow caused by defendant’s negligent construction of a ditch, the admission and photographs of the alleged locality was improper, in the absence of a showing that they were correct representations or reproductions of the locality at the time of the alleged injured.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Bnmdidge £ Neely, for appellant.

      Thomas B. Pryor and H. L. Ponder, for appellee.
   Wood, J.

This is an action by G. W. Ford against the Missouri Pacific Railroad Company, in the circuit court of White County, Arkansas. Ford . sought to recover damages by reason of the digging of a ditch Uy the railroad company along its right-of-way and parallel thereto, in the town of Bald Knob. Ford alleged that the railroad company negligently and carelessly dug the ditch, so that it diverted the water from Tupelo Creek, a natural watercourse, to run down said ditch over and upon his land, by which he was damaged in the destruction of his crops in the sum of $2,950, for which he asked judgment.

The railroad company answered, setting up that Ford was not entitled to recover for permanent damages to his lands; that the ditch was cut by the company in order to build an embankment to take care of necessary and additional sidetracks and to take care of the surface water which surrounded its property; that the ditches and openings under the company’s tracks and road-bed were sufficient to take care of all surface waters and ordinary rainfall, but that, at the time of which Ford complained, there was an unusual and unprecedented rainfall at Bald Knob, which was an act of God, and that the company was not responsible for the damage caused thereby.

Witnesses on behalf of Ford testified to the effect that the railroad company dug a ditch along the east side of its right-of-way north of Bald Knob, which ditch leads off into Tupelo Gum Creek, a well defined natural stream. After the company dug the ditch, the water would get up in the creek, and that would shove the water back up the ditch and scatter it out over the lowlands. The land was not subject to overflow until after this water was allowed to come down in this ditch. There was a divide that kent the water off of Ford’s land until the company cut the ditch through it. There are about fifty-six acres of land that are overflowed by reason of the digging of tlie ditch. Previous to the cutting of the ditch there had been an old ditch there for several years that ran into Gum Creek, but it was not a deep ditch, and not dug by the railroad company. The company tilled up the old ditch in building an extra dump for a track.. The ditch is something like six feet wide. When the water got as high as 2% feet in the creek, it began to flow up the ditch. It overflowed from an ordinary rainfall. There was testimony on behalf of Ford to the effect that his crop was damaged in March and afterwards on the 2d of May, 1923.

There was testimony for the railroad company to the effect that it dug the new ditch to build a dump for the railroad track, and the dirt taken out of this ditch was off the right-of-way of the railroad company. They filled up the old ditch, what little there was of it. Witnesses testified for the company to the effect that the creek would always overflow, on both sides before the ditch was dug there, and ddring the exceedingly heavy rains in Muy and in June there was an overflow, and the tracks of the company would be covered by the drift'. The rainfall was heavy enough to pick up big cross-ties and wash them down on the track. The water was about knee-deep at the station. When this water poured over there by the depot, it was bound to go in over Ford’s land.

Ford himself testified that he had two overflows in May and two in June.

The -company, over the objection of appellant, introduced photographs that were taken in July, 1923, showing the conditions that existed at that timeJn the locality of the ditch and the creek. These photographs were taken without notice to Ford, after this action was instituted, and indicated the appearance of the locus in quo. The witnesses who were in company with the photographer at the time the pictures were taken could only tell what the condition of the creek, ditch and drifts were in March, April and May by the water-marks. The pictures only represented conditions as they were at the time they were taken.

The plaintiff Ford, in his prayers for instructions • numbered one and six, prayed the court to instruct the jury in effect that, if the damage of which he complained was caused by an act of God concurring with the negligence of the railroad company, they should return a verdict-in his favor. The court instructed the .jury, at the request of Ford, to the effect that, if the railroad company so carelessly and negligently constructed the ditch as to divert Tupelo Creek, the natural watercourse, upon the lands of Ford, to his injury and damage, they should return a verdict in his favor.

At the request of the railroad company, the court gave instruction No. 10, to the effect that the company would not be liable to Ford for loss occasioned by an act of God if its own negligence did not contribute to the damage alleged; that, if the damage to Ford was caused by an extraordinary freshet which could not have been reasonably foreseen or provided against — in other words, an act of God. the proof of such fact would be a perfect shield, and Ford could not recover. The court also granted, over Ford’s objection, instructions Nos. 5 and 7, as follows:

“No. 5. The jury are instructed that, if you find from the evidence that the waters of Tupelo Gum Creek were retarded in their flow by reason of drifts and logs caught under the bridges along the public highway and on fences, and on account of brush, trees and standing timber in said creek, over which the defendant company had no control and for which it was not liable, and this caused the waters to back up in said creek and to cause additional overflow and damage to this plaintiff, then-the plaintiff would not be entitled to recover.”
“No. 7. The jury are instructed that, if you find from the evidence that the plaintiff failed to keep the drift and logs out of Tupelo Gum Creek upon his land, and this caused the water to be held back, and contributed in any way to the damages of which the plaintiff complains, then the plaintiff would not be entitled to recover, find your verdict 'should be for the defendant.”

The jury returned a verdict in favor of tire railroad company, and judgment was entered in its favor, from which is this appeal.

The court erred in- not granting appellant’s prayers for instructions 1 and 6. These prayers were predicated upon the doctrine announced by this court in St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297, 300, and cases there cited, as follows: “The act of God which excuses must be not only the proximate cause but the sole cause. And where the act of God is the cause of the injury, but the act of the party so mingles with it as to be also an efficient and cooperating cause, the party will be still responsible.” See also the later cases of St. Louis, etc., Ry. Co. v. Steel, 129 Ark. 520-527; Arkansas Land & Lbr. Co. v. Cook, 157 Ark. 245-253. These prayers for instructions were not covered by instruction No. 10 given at the instance of the appellee. Moreover, instruction No. 10 as framed did not correctly declare the law applicable to the facts, and was in conflict with appellant’s prayers numbered one and six.

Prayers for instructions numbered 5 and 7 for the appellee were not properly framed, and the court erred in granting the same. There was no testimony, as we view the record, to justify the court in submitting to the jury the issue as to whether or not the appellant was negligent in failing to keep the drift and logs out of Tupelo Gum Creek where the same flowed through his land. The appellant had no control over the public highway, and it was not his duty to dislodge any -drift or logs that might have been caught under the bridge upon such highway. Therefore these instructions were abstract; and, furthermore, they ignored"the appellant’s contention, bottomed upon the testimony in his behalf, tending to prove that the negligence of the anpellee in the manner of the digging of the ditch contributed to, f>nd was a concurring and cooperating proximate and efficient cause with, the unprecedented floods in causing the obstructions in and overflow of Tupelo Gum Creek upon the appellant’s lands.

The court erred in allowing the introduction of photographs without first requiring the appellee to lay the foundation for the introduction of such photographs by showing that they were correct representations or reproductions of the conditions of the locus in quo at the time of the alleged injury and damage to the appellant. Photographs, to be competent testimony, must be shown by extrinsic evidence to be true and faithful representations of the place or subject as it existed at the time involved in the controversy. K. C. S. R. Co. v. Morris, 80 Ark. 528; Sellers v. State, 93 Ark. 313; Zinn and Chaney v. State, 135 Ark. 342; 22 C. J. 919; 10 R. C. L. 943; Harris v. Quincy, 171 Mass. 472, 50 N. E. 1042.

For the errors indicated the judgment is reversed, end the cause remanded for a new trial.


text:
    Johnson v. Tucker Lake Levee and Drainage District.
    Opinion delivered May 18, 1925.
    Drains — publication of notice of assessment in weekly newspaper. — Crawford & Moses’ Digest, § 3615, requiring publication of a .notice of hearing of the assessment in -a drainage district for two weeks in some weekly newspaper, is complied with by publishing such, notice once a week for two weeks in a daily newspaper.
    Appeal from Jefferson Chancery Court; H. R. Lucas, Chancellor;
    affirmed.

      F. G. Bridges, for appellant.

      Palmer Danaher and M. Danaher, for appellee.
   Wood, J.

The Tucker Lake Levee & Drainage District is an improvement district organized under subdivision 2 of chapter 51 of Crawford & Moses’ Digest and amendatory acts. The district lies wholly within Jefferson County, Arkansas. The commissioners of the district assessed the benefits and deposited the same with the county clerk of Jefferson County. The county clerk gave notice of that fact by publication two weeks in the Graphic, a newspaper published in Jefferson County and having a bona fide circulation therein. The paper was published every day in the week,' except Monday. It is what is termed a daily newspaper. It was not published as a weekly newspaper. The notice of the filing of the assessment by the commissioners was published in the Graphic on July 17 and again on July 24, 1924. It called on all owners of property in the district to appear before the county court on the 12th of August, iy24, to show cause, if any, against the assessment of any of the lands in the district. The county court, in pursuance of the notice, confirmed the assessment.

This action was brought by Cyrus Johnson and Pinckney Johnson against the district and its commissioners. The issue raised by the pleadings is whether or not the assessment was void because of insufficient publication. The trial court held that the publication of the_noti.ce in the Graphic by two consecutive weekly insertiorEs therein, as above set forth, was sufficient compliance with the statute, and entered a decree dismissing the complaint for want of equity, from which is this appeal.

Section 3615 of Crawford & Moses’ Digest, pursuant to which the notice was given, provides as follows: “When their assessment is completed, the commissioners shall subscribe said assessment and deposit it with the county clerk, where it shall be kept and preserved as- a public record. Upon the filing of said assessment the county clerk shall give notice of the fact by publication two weeks in some weekly newspaper issued in each of the counties in which the lands of the district may lie.” The term “weekly” means once a week. 40 Cyc. 877; Webster’s International Dictionary. In the nomenclature of newspaperdom the term “weekly newspaper” conveys the idea that the paper is published once a week (Iowa State Savings Bank v. Jacobson, 8 So. Dakota, 292, 300), and a bi-weekly newspaper is one published every two weeks. Byrne v. Less, 92 Ark. 211.

The Tucker Lake Levee and Drainage District was formed under a general law. C. 51, C. & M. Digest, supra, subdiv. 2. The lawmakers bad in view condi tions that might obtain in any county or in any number of counties where it might become necessary to form drainage districts, and the term “weekly newspaper’’ in tie statute was not used in any narrow or technical sense, but was intended to cover the conditions that would likely prevail generally throughout the State, and did not have reference to the situation in any particular locality. The framers of the law doubtless knew that weekly newspapers were published in most of the counties in the State, and they were framing the law to meet the general situation. The purpose was to provide a method for publication that would most effectually bring home to the landowners the notice of the assessment, and it was determined that the. weekly newspaper would afford the best medium, hence it was designated. But, if a paper is published two weeks in succession consecutively on Thursday of each week, it is a weekly publication of such paper, and' it ’ is nóne the less a weekly publication because it is also published, not only on Thursday, but on, every other day in the week except Monday. There would certainly be as great probability of the landowners in the territory affected receiving notice of the assessment where the publication was made in a daily paper which has a general circulation as there would be if the same were published in a newspaper published once every week, or, in a weekly newspaper. It occurs to us that it would be “sticking in the bark” to hold that the publication under review did not meet the requirements of the law for the publication of the notice of the assessment. "We therefore conclude that the publication of the notice of the filing of the assessment with the county clerk of Jefferson County by an insertion in the Graphic for two weeks in succession on July 17 and 24, 1924, was in compliance with the statute in such cases made and provided.

The decree of the chancery court is correct, and it is therefore affirmed.