author: McCulloch, C. J. Humphreys, J.,

text:
    McGill v. Miller.
    Opinion delivered December 20, 1926.
    1. Easements-í-Adverse use OF alley. — Use of an alley for 19 years •by adjoining lot owners under circumstances showing that the use was made as a matter of right and not of permission held to establish adverse use, so as to ripen into title by limitation.
    2. Easements — permissive use. — Permissive use cannot ripen into a legal right merely by lapse of time.
    3. Easements — obstruction of alley — right of action. — Adjacent lot owners whose only convenient means of access to their properties is through an alley have such special rights therein as entitle them to maintain a suit to prevent its obstruction.
    4. Easements — obstruction of alley — relief.—A lot owner who had built a wall in an alley was properly required to remove it, however inconvenient and expensive it may be for him to do so.
    Appeal from Pulaski 'Chancery Court; John E. Martineaio, Chancellor;
    affirmed.

      T. T. Dickinson and 8. L. White, for appellant.

      Carmichael <& Hendricks, for appellee.
   McCulloch, C. J.

This litigation involves a controversy between appellants McGill and Todd on the one side and appellees Miller and Autry on the other side, concerning the right to use an alley between the several properties occupied by the parties in the city of Little Rock.

Appellee Miller is the owner of lot 3, block 2, of Marshall & Wolfe’s Addition to the city of Little Rock, and appellants McGill and Todd and appellee Autry are the respective owners of portions of lots 4, 5 and 6 of block 2, in Marshall & Wolfe’s Addition. The addition referred to was platted and filed prior to the year 1905 by the then owners, and a man named Booher was the owner of lots 4, 5 and 6, which now comprise the property of McGill, Todd and Autry. Each of these lots are 50x150 feet, and extend east and west, fronting on Wolfe Street. Lot 6 extends full length on Ninth Street on the south, and Booher divided all three of these lots so that the residences established thereon would front on Ninth-Street instead of Wolfe.

On March 10,1906, Booher conveyed to "W. S. McCain 54 feet off the west end of lots 4, 5 and 6. He had, prior to that time, conveyed to other parties the other two portions of the lots, namely 48 feet off the east end, which is now the property of Autry, and 48 feet between the two above-mentioned lots, which is now the property of Todd. Booher’s deed to McCain contained a stipulation that the conveyance was made “subject to an easement or right-of-way along the north side of lot 4, which easement or right-of-way is hereby reserved for the use of the owners of the remainder of said lot 4, said easement to be ten feet wide.” There was no such reservation, however, in the deeds previously executed to other parties covering the other two lots. McCain subsequently reconveyed the property to Booher, but his deed did not carry the stipulation contained in the deed from Booher to him, and Booher subsequently conveyed the property to another party without such reservation, and McGill, in the year 1910, became the owner through mesne conveyances.

Lot 3, in block 2, owned by Miller, has never been subdivided; that lot runs east and west, and Miller’s residence fronts on Wolfe Street. Booher built the residence now owned by McGill, and other parties built the residences on the lots now owned, respectively, by Todd and Autry. Todd purchased his property in 1913, and Autry purchased his a few years later. There is an open space of ten feet on the south end of lot 4, along the line of the McGill property and the Todd property, and this has been used as an alley, affording an entrance to each of these properties from Wolfe Street. Todd and Autry have no other means of entering their respective properties from the north or west side. Miller also has been using the open way as an entrance to his property. His use, however, was more limited, as the driveway into his property turns north across his property line a short distance from the mouth of the alley. Several years ago Miller built a stone wall about three feet high near the south line of his property and the north line of the alley, running from the line of the Autry property west to within a short distance of the mouth of the alley — to the point where he turns from the alley into his own property. It was developed by proof in this litigation that the stone wall built by Miller is not precisely on the line, and extends a short space over into the alley near the west end.

It appears from the testimony in this case that, when the residences were established on the properties now owned by McGill and Todd, the fences and barn were built on the line of this open way or alley so as to leave a space of ten feet along that way. The barn and the fences were destroyed many years ago, and the fences were rebuilt on the line, so as to leave an open way between the fences on the back end of the property occupied by McGill and Todd and the line of Miller’s property across- the alley. McGill has, within the last few years, built a garage fronting on-Wolfe Street at' the corner of the alley. Todd has a barn or garage on the rear end of his property, about four feet from the line of the alley. Mr. Autry’s garage is situated on his property fronting the east end of the alley.

Shortly before the commencement of this action McGill attempted to place a fence across the mouth of the alley, and Todd also attempted to build a fence across his line. These fences shut^up the -alley completely and prevented its use by any -one, and the present action was instituted in the chancery court of Pulaski County by Miller and Autry against McGill and Todd to prevent them from obstructing the alley. A temporary injunction was granted at the commencement of the action, requiring appellants to refrain from obstructing the -alley during the pendency of the suit, and, on final hearing of the cause, the injunction was made perpetual. The court also in its decree required Miller to move back the west end of the wall constructed by him so that the samé would be on a continuous straight line, beginning at the east end at the line of -the Autry property. McGill and Todd prosecuted appeals, and Miller cross-appealed.

It is the contention of appellees that the way in controversy was left open and marked by the establishment of fences and buildings as an alley-way for the use of other owners of the property in the block and has been so used for a period of nineteen years, up to the commencement of this action, so that an easement has been acquired by limitation. Scott v. Dishough, 83 Ark. 369, 103 S. W. 1153.

It is the contention of appellant McGill that the use of the way was merely permissive and never ripened into an adverse right, and that he has the privilege of withdrawing the permission and obstructing the alley at any time it suits his convenience. He admits the attempt to close the alley, but seeks to justify it by the claim that no one ever acquired the right to use the alley so as to prevent him from closing it. It is difficult to ascertain from the abstract and brief just what Todd’s justification is for closing the alley. His own testimony tends strongly to show that it was left open nineteen years before this litigation arose, for the use of the owners of other property in the block. We are giving no force to the reservation in the deed from Booher to McCain, for the property now owned by Todd and Autry, respectively, was conveyed away by Booher long before execution of the deed to McCain. McGill and IW ■tors took the title free of any reservation. ' A5 §^aIL' Todd nor Autry can base any rights ■' ne™er tion for the simple reason that G~ reserva" purchased by them or their prr ’ proper y was not right to rely upon the re*'- “ fatle *6 must turn entirely uv' ,rrva 10^ 0 ea e^‘ e case n«o nf flip aiw the proof concerning unrestricted other owm ' 17 ÍOr.a sxiffieient iength of time to give the and ^ -J-drs right to use the alley as an easement, we are of the opinion that the finding of the chancellor upon that issue is sustained 'by the preponderance §f the testimony. The testimony of both Todd and Miller shows that the way had been kept open and used for about nineteen years prior to the commencement of this suit. The line of the alley was marked by the fences and a barn along tbe south line, which constituted an invitation to the public to use it as an alley. It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Scott v. Dishough, supra; Medlock v. Owen, 105 Ark. 460, 151 S. W. 995.

It is true that the testimony of McGill establishes the fact that, after he became the owner of the property in 1910, the alley was frequently used, but that there was an embankment at the mouth of the alley, so that it was difficult to use it; and he also testified that one of his neighbors asked permission to dig down the alley and use it for'the purpose of hauling manure. He stated that he agreed for his neighbor'to use the alley, but his own testimony shows that the alley was open and plainly marked prior to that time, and was occasionally used. His testimony is not sufficient to show that, prior to that time, during the years that the alley had been open, the use of it had been merely permissive, nor that those who used the alley after he acquired the property did so merely by permission.

We give full recognition to the principle of law established by the numerous decisions cited in the brief of appellants, to the effect that a permissive use cannot ripen into a legal right merely by lapse of time, but we think that the evidence is sufficient to show that this use was made of the alley as a matter of right and in hostility to the right of the original owner to .close the strip and prevent its use. The open way was for the especial benefit of the owners of adjoining property, and is the only convenient access that they have to their properties, and this confers upon them such special right as enables them to maintain a suit to prevent an obstruction. We think that the chancellor was correct in holding* that there was an easement for nse of the alley, and that neither McGill nor Todd had the legal right to close it.

The court was also correct in requiring* Miller to move his wall back so as not to obstruct the alley. He had no right to build the wall there, and it does not lie in his mouth to say that it is inconvenient and expensive for him to remove it.

We think that the decree was correct in its entirety, and it is affirmed.

Humphreys, J.,

(dissenting). The real purpose of this suit by appellees against appellants was to enforce by injunction an alleged easement over the back or north end of appellants’ lots. The alleged easement was not dedicated to the public when the lots were platted, and appellees admit that they never acquired such rig’ht by deed or other conveyance. Appellees did not claim the use of the strip of ground by virtue of a technical prescription which presupposes a grant. They base their alleged right to an easement upon seven years’ adverse user of the strip of ground. The majority opinion concedes that the case must turn upon this question alone. As I read this record, the evidence is wholly insufficient to support an adverse user for the statutory period. It is conceded that the use by appellants and others originated as a permissive right and not for a consideration. I am at a loss to find anything in the evidence indicating that this permissive use was ever converted into a restricted or adverse use by appellees or any other person. The law is that a permissive use can never ripen into title by limitations. This court is committed to the doctrine that, where an entry is permissive, the statute of limitations will not begin to run against the legal owner until an adverse holding is declared by act or word. Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 414; Chicot Lumber Co. v. Dardell, 84 Ark. 140, 104 S. W. 1100; Gee v. Hatley, 114 Ark. 376, 170 S. W. 72; Britt v. Berry, 133 Ark. 589, 202 S. W. 830.

The construction by appellants of fences and garages a short distance south of their north line is not inconsistent with the permissive use to their neighbors of the strip left by them on the north side of their lots. They had a perfect-right to build fences and garages on their lots at any point or place they desired. Dr. McGill testified-positively that, at the time he. purchased his lot, he found an embankment on the west side thereof which prevented him or any one else from entering the strip of ground claimed by appellees, and that he gave the party who occupied the lot east of him permission to take down the embankment to haul more manure in that way. He also testified that he assisted his neighbor in taking down the embankment so that he might himself come in that way. He also testified positively that he gave appellees permission to use the strip of ground as a private way as long as they could use it without any friction between themselves.

I do not understand that anybody contradicts the fact that this strip of ground was blocked off by an embankment on Wolfe Street when Dr. McGill purchased his property, or that there is any direct denial of the fact that Dr. McGill extended permission to his neighbors, including appellees, to use the back part of his lot to enter their several properties as long as it could be used peaceably by them all. This testimony is in keeping with the admission of appellees and the declaration in the majority opinion that the original user of the strip in question was permissive.

I am convinced, after a very careful reading of the record, that the decree of the chancellor should be reversed, and the cause remanded with directions to dismiss appellees’ complaint.


source: Caselaw Access Project

author: McCulloch, O. J.

license: Public Domain

text:
    Martin v. Kraemer.
    Opinion delivered December 20, 1926.
    New trial — inadequacy of damages. — -Where the undisputed evidence showed that plaintiff’s automobile was damaged $47 in a collision, but the evidence was conflicting as to responsibility, a judgment for $1 was inadequate, justifying a new trial.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    reversed.

      Cobb é Cobb, for appellant.

      Martin, Wootton & Martin, for appellee.
   McCulloch, O. J.

An automobile, driven by appellant along a street in the city of Hot Springs, collided with appellee’s car, operated by a hired driver, and appellant instituted this action against appellee, alleging that the collision occurred through the negligence of the latter’s servant, and praying for the recovery of damages in the sum of $300. In the trial of the case it was undisputed that appellant’s car was very considerably damaged — appellee admitted in his testimony that it would take $47 to repair the damage to the car — but there was a conflict in the testimony as to the responsibility for the -collision, each party claiming that the other was at fault. Appellee, in his answer, denied the allegations of negligence on the part of his driver, and claimed damages from appellant in the sum of $50 on the ground that the collision was caused by appellant’s own negligence. The issues were submitted to the jury on correct instructions, and there was a verdict in favor of appellant for the sum of one dollar. A reversal of the judgment is sought -on the ground that the findings of the jury are conflicting in fixing liability upon appellee for the collision, but awarding only nominal damages, the evidence being undisputed that substantial damage resulted to the car.

. We are of the opinion that the contention of appellant is sound and that the judgment must be reversed. The verdict is conclusive as to the responsibility for the collision, and the liability of appellee for all damages that resulted to appellant in the injury of the car.

Counsel for appellee contend that, the evidence being conflicting on the question of responsibility for the collision, the verdict of the jury was a mere compromise, and that this accounts for the fact that the jury awarded only nominal damages. This is not, however, a correct interpretation of the verdict, and the conflict therein cannot be reconciled in that way. We can only treat the verdict as settling the question of liability, and, if the amount of damages fixed by the jury was supported by substantial testimony, we would affirm the judgment, hut such is not the case. The undisputed evidence is that the damage amounted to at least $47, and, according to the testimony adduced by appellant, it amounted to considerably more than that sum. Under similar conditions this court has reversed judgments of trial courts. Dunbar v. Cowger, 68 Ark. 444; Carroll v. Texarkana G. & E. Co., 102 Ark. 137.

The judgment in this case will therefore he reversed, and the cause remanded for a new trial. It is so ordered.


author: Wood, J.

text:
    Stephens v. State.
    Opinion delivered December 20, 1926.
    1. Husband and wife — desertion of wife — evidence.'—Evidence held to sustain a verdict finding defendant guilty of wife desertion, under Crawford & Moses’ Dig., § 2596, as amended toy Acts 1923, No. 331.
    2. Husband and wife — desertion of wife' — jury question. — Where testimony as to whether there had been willful abandonment and refusal to support defendant’s wife was conflicting, the weight of the evidence was for the jury.
    3. Husband and wife — desertion of wife — instruction.—An instruction that a husband has a right to select a home for himself and family, and that, if defendant provided a home with his parents for his wife while he solicited insurance elsewhere and provided for his wife as well as his station in life would reasonably permit, was properly refused where it was abstract,- argumentative and misleading.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Steve Garrigan and Feazel & Steel, for appellant.

      H. W. Applegate, Attorney G-eneral, and Barden Moose, Assistant, for appellee.
   Wood, J.

The appellant was tried and convicted in the Howard Circuit Court on an indictment which, in apt language, charged him with the crime of wife desertion, under § 2596 of C. & M. Digest, as amended hy act 336 of the Acts of 1923. The facts are substantially as follows:

Mrs. Hershell Stephens testified that she married the appellant on the 25th of April, 1924, when she was fifteen years old. They went immediately to the home of appellant’s parents at Mineral Springs, Howard County, Arkansas, and had lived there until the day before the indictment was returned against appellant, which was the 27th day of August, 1926. For about eight months past the appellant had been living at El Dorado, and was engaged in the business of writing insurance. During that time he had contributed about $15 to witness for herself. He sent her $10 before her baby came, in addition, and gave her money to buy things for the baby. Witness went to Magnolia, and advised the appellant over the telephone, on Saturday prior to the separation on Sunday, that she had come there to go to El Dorado with him. Appellant said she could not go; that it was too expensive. Witness told him that he would have to rent her a room then, and he said he would not. They came on back to Mineral Springs together, and, when they got there, appellant said, “I have decided while we are young we will quit. I am fixing for the child $12.50 a month, and as he grows older I-will increase it.” Appellant did not propose to leave witness anything. When they got back to Mineral Springs, appellant put witness out at the hotel. She had no money. Appellant told witness that he was not going to live with hex* axxy longer. He asked witxxess if there was anything she waxxted from the house. Witness told him there were some clothes. Appellaxxt told witness to go up xxext morning axxd get her things. Witness went, but did xiot get anything. She did xxot see appellaxxt axxy more after that. She heard he went back to El Dorado. Appellaxxt had bought witxxess, since their marriage, two nice dresses. Witness purchased the clothing she had on, axxd had them charged to the appellaxxt at Magnolia. Appellant had bought her six dresses sixxce they were married. Appellant came home recently with a check for $700, and witness didn’t know how much more. That was about a week before the separation. Appellant had been payixxg $25 for his meals and $20 for his room and laundry bill. They were married ixx Howard County, something'over two years ago, and appellant left witness at Mineral Springs. Witness had 'been trading on appellant’s account, before the separatioix, at Dickinson & Brother’s. Witness did not know whether appellant had stopped her accounts anywhere since the separatioxx or not. Witxxess and appellant lived with the appellant’s parents as members of the family. Appellant had taken out two insurance policies on hi's life, while appellant and witness were living together, for witness’ benefit. Of the $700 that appellant brought home with him at oxxe time, $400 beloxxged to the ixxsurance company. Witixess didn’t know what became of the other $300. Appellant paid a few bills at Mineral Springs. He stated that he paid $75 oxx a xxote. Appellaxxt and witxxess had not had axiy falling' out, axxy more than axxy other young people. .Witness had not quit loving the appellant. Their relatioxxs while they were at appellant’s father’s house for a while were pleasaxxt. At the time her husband left her there they were not pleasant. That was one of the reasons witness wished to move. Their little boy was six months old.

Mrs. Ward testified that she was acquainted with the appellant and his wife. Appellant is witness’ nephew. Witxxess kept a hotel in Mineral Springs. Appellant and his wife came to the hotel last Sunday, about six o’clock in the afternoon, and appellant left his wife there. He came back, and they went off together and were gone about twenty or thirty minutes, and again came back, and the last time appellant didn’t stay. When Mrs. Stephens came in the house she was crying. Witness was asked if she .heard the defendant, at any time, say he didn’t intend to live with his wife — that he would go to the penitentiary before he would do it. Witness answered, “Well, he just stated before he would live with her he would — he made that remark.” This conversation was after the indictment was lodged against appellant. Witness told appellant he had better compromise with his wife — that he might have to go to the penitentiary, and, in reply, he said that he would go to the penitentiary before he would do it.

Mrs. C. C. Stephens, another aunt of appellant, testified to a conversation she had recently with the appellant as follows: He was at the hotel, and was talking about this, and I asked him why he didn’t compromise, and he said he didn’t think he could. I told him I believed he could. I said that might be the best for you if you would, or give her alimony. . He said, “Aunt Pearl, I will just go to the pen before I will do that.” This conversation with appellant was after he had been indicted and arrested. Witness was advising him as- his aunt. He told witness that he would go to the pen before he would pay alimony. It was shown by appellant’s father that appellant and his wife had lived with witness since they were married. Appellant had paid part of the grocery bills. There were six-in the family when appellant and his wife were there. Appellant and his wife had rooms to themselves. Appellant’s wife came up with a truck Monday morning and moved her stuff away. The appellant had come in Sunday night before and said that he had left his wife and boy at a hotel in Magnolia. Appellant was working in El Dorado in the insurance business, and when he left he left some money for his wife. Witness treated appellant’s wife like she was one of Ms children. They lived there together peaceably and happily. Witness didn ’t know that there was any trouble between appellant and his wife.

Appellant’s mother testified that she and appellant’s wife lived together happily. They both did housework. Appellant treated his wife kindly. He was working in the oil fields, and would come home week-ends.

Other witnesses, not members of the family, testified to the effect that the appellant and Ms wife lived happily, so far as they could observe, in the home of appellant’s father and mother.

Appellant himself testified that he did not desert his wife. She called him at El Dorado, and told Mm that she was going to Magnolia, and he replied, “I will meet you there, sweetheart.” Appellant met his wife and baby at Magnolia, and saw she was mad. She refused to eat any dinner, and said that she didn’t intend to return to Mineral Springs. Appellant explained to her that he had no money — was just getting started — and that, if she would help him a little while longer, they would move to El Dorado. She replied that she was going* to place their baby in the orphans’ home and she was going to •Dallas. She asked appellant to get a divorce, and he told her he would not do so; that she could get it. She offered him their wedding ring, and he refused to take it. Appellant explained that he had received the $700 check in payment of the premium on the insurance policy and the disposition he made of it, paying $446 of it to the company and using the balance in the payment of bills contracted by himself and wife. Appellant had never refused to-support his wife. He felt hurt because she had indicted him while she was mad. He loved his wife and baby, and has never refused to support them. He •denied that he had stated to her that they had better quit. Appellant had been making* from fifty to a hundred dollars a month, but- was then doing better. Appellant had attempted to talk with his wife since the indictment, but she had refused, saying that she would send him some “Chesterfields” at the Tucker farm.

The appellant’s wife, in rebuttal, testified, • denying that she told her husband she was going to quit him. She stated that she had told him that she would send him a package of cigarettes if he was sent to the penitentiary. There was other testimony to the effect that the appellant was doing fairly well in the insurance business at El Dorado.

The appellant presented the following prayer for instruction, which the court refused to grant:

“A. Yon are told that the husband is regarded in law as being the head of the family, and has a right to select the domicile of himself and family. Therefore, if you find from the testimony that the defendant in this case has provided a home with his parents for his wife, while he solicited insurance in other parts of the State, and that he did not desert his wife, but, on the other hand, was providing for his wife as well as his station in life would reasonably permit, yon will find him not guilty.”

The appellant duly excepted to the ruling of the court in refusing the above prayer. The jury returned a verdict of guilty, fixing the appellant’s punishment at a fine of $500 and imprisonment in the county jail for thirty days. The court rendered judgment in accordance with the verdict, from which is this appeal.

1. The appellant contends that there was no testimony to sustain the verdict. All the material testimony is set forth above, and it tends to prove that the appellant refused to take his wife to El Dorado with him to live, at her request, claiming that he was not financially able to maintain her there and that he would do so as soon as he was able. Her testimony tends to show that, a short time before the indictment was lodged, he and his wife met in Magnolia, and she there requested him to take her to El Dorado with him, but, instead, he- took her to Mineral Springs and left her at the hotel, saying that they would quit while they were young. He proposed to make some provision for their baby but none for his wife. The appellant had left $12.50 with his father for Ms wife, when he returned to El Dorado from his last visit, and appellant’s father gave her a check for this amount, three or four days after the indictment was returned against appellant.

The aunts of appellant, after the indictment was preferred, interposed their kindly offices to effect, if possible, a reconciliation between appellant and his wife and counseled him to compromise, stating that the prosecution might result in his imprisonment in the State Penitentiary. Whereupon, to this admonition he replied, in substance, that he would go to the penitentiary before he would live with his wife.

In the recent case of Lindell v. State, 129 Ark. 36, 195 S. W. 382, the court, having under consideration a case of abandonment and nonsupport of wife and child under our statute, in commenting upon the testimony, said: “There is a sharp conflict in the testimony as to whether or not there was * * * a willful abandonment and refusal to support, but the weight of the evidence was a matter within the province of the jury, and we cannot say that there was not enough evidence to support the verdict. ’ ’ That declaration is applicable also to the facts of this record. See also Miller v. State, 123 Ark. 481, 185 S. W. 789; Dempsey v. State, 108 Ark. 76, 157 S. W. 734.

2. The court did not err in refusing to grant appellant’s prayer for instruction No. A, set out above. The instruction gave undue prominence to the fact that appellant had provided a home with his parents for his wife and child, and was tantamount to telling the jury that, if he did this, he was not guilty of desertion. At least the jury might have so inferred. While as an abstract proposition the husband has the right to select the domicile for himself and family, nevertheless such an instruction, under a charge of this kind, is abstract and misleading, because it conveys the necessary inference that a married man has the absolute right to select the home of his parents as the domicile for himself and family and compel his wife and children to live there. Whether he has such right would depend wholly upon the circumstances. Since the prayer for instruction is abstract,' argumentative arid misleading’, the trial court ruled correctly in refusing to grant the same.

There is no error in the record, and the judgment is therefore affirmed.


text:
    Koury v. Morgan.
    Opinion delivered December 20, 1926.
    1. Vendor and purchaser — notice of lease. — Evidence held to show that a purchaser of land had actual knowledge of a gas and oil lease thereon, though the lease was not placed of record until after he had acquired title.
    2. Mines and minerals — priority of oil and gas lease. — Where the rights of lessees under an oil and gas lease were acquired prior in. time to those of a purchaser of the fee, their rights must prevail in case of conflict.
    3. Mines and minerals — liability of lessee to fee-owner. — Lessees under an oil and gas lease, executed before a sale of the land, are not liable to the purchaser by reason of operation of the lease, unless they negligently injured the land.
    ■Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.

      Powell, Smead & Knox, for appellant.

      Allyn Smith, for appellee.
   Wood, J.

On May 19, 1922, Ida Bell, a widow, executed a lease to'Eli D. Bernstein, by which, for a valuable consideration, the lessor leased to the lessee a parcel or lot of land in the town of Norphlet, Union County, Arkansas. The land described in the lease did not properly describe the lands which were intended by the parties to be leased. This lease, with the imperfect description of the land, was recorded on May 25, 1922. On March 20, 1924, a lease was executed by Ida Bell to Eli D. Bernstein, which was dated as of May 19, 1922. This latter lease described the land as follows: “Beginning at the northwest corner of the northeast quarter of the southwest quarter of section 21, township 16 south, range 15 west, and running thence east 395 feet for beginning point; thence east 155 feet; thence south 510 feet to the north line of the Missouri Pacific right-of-way; thence north 49 degrees west along said right-of-way line 285 feet; thence north 300 feet to place of beginning, and containing two acres, more or less.”

The lease contains this recital: “This lease is made to correct and supersede, in all things pertaining thereto, a certain oil and gas lease executed May 19, 1922, and recorded in book 133, p. 180, of the records of Union County, Arkansas. ’ ’ The lease further recited that it was executed “for the sole and only purpose of mining and operating for oil and gas, laying of pipe lines, building of tanks, towers, stations and structures thereon to produce, save, and take care of said products, and all that certain tract of land situated in the county of Union,” etc., describing the same as above. The last lease was recorded April 16, 1924.

In March, 1924, Ida Bell, by warranty deed, conveyed to Lee Morgan the above lands for the consideration of $450, which deed was duly filed for record on the 29th of March, ,1924. The land was not correctly described in that deed, but the description was corrected in a later deed executed April 8, 1924, and filed for record on that day. Morgan went into possession of the land and improved the same. On May 22, 1924, Bernstein sold his lease to Mike Koury and his successors and assigns. Koury took possession of the property and drilled a well thereon which produced oil and gas.

This action was instituted by Lee Morgan on May 1, 1924, against Mike Koury, trustee, and others, named as defendants. He alleged, among other things, that the defendants recently, at times unknown to the plaintiff, had been sinking an oil well within 150 feet of plaintiff’s premises, and “had wrongfully, willfully and with conscious disregard of the rights of plaintiff in said premises,” done certain acts, consisting of the building of tanks on the premises and the driving of heavy wagons across same, the breaking of the gas supply to his premises, tlie using of an unsafe engine and boiler; that the boiler • exploded, and a portion thereof was blown with great violence through the plaintiff’s rooming-house and close to persons occupying the same, endangering their lives, putting them in great fear and alarm, all to the plaintiff’s damage in the sum of $10,000. Plaintiff prayed a temporary restraining order to prevent the defendants from continuing their trespasses upon his property, and, upon a final hearing, for a permanent injunction, and for .judgment in the sum of $10,000.

The defendants answered, denying specifically the allegations of the complaint as to trespass and negligence, and set up that they were operating as successors and assignees of Mi D. Bernstein under the lease from Ida Bell to Bernstein, executed on May 19, 1922. They further set up that, when the plaintiff obtained his deed to the tract of land in controversy, on which he made his improvements, he was well aware of the lease mentioned from Ida Bell to Eli D. Bernstein, and that plaintiff took title and possession subject to such lease and well knowing at the time of the rights of Bernstein and his successors and assigns under the lease. They further alleged that they entered and took possession of the premises and carried on their drilling operations without objection from the plaintiff.

On the trial of the issues thus raised and the muniments of title of the respective parties as above set forth, the chancery court found that the plaintiff was the owner of the property in controversy and was in possession thereof long prior to the commencement of this action, using the same as a residence for his family and a rooming-house, prior to any oil development in the town of Norphlet, and that the defendants had actual notice of plaintiff’s occupancy of the premises and of his improvements and of his ownership before they began their drilling operations. 'The court further found that the plaintiff was not entitled to the injunction prayed, and denied his prayer for the relief sought in that particular, but found that he was entitled to recover for damages for the injury sustained by him, and referred this matter of damages to a special master, to take proof and ascertain the amount of such damages and report to the court. The master beard the testimony adduced by the respective parties on the issue as to the amount of the damages, and made his report to the effect that the plaintiff had been damaged by the defendants in the total sum of $6,025, enumerating various items of damage and the amounts thereof, which, in the aggregate, constituted the above sum. Exceptions were filed to this report, and the court sustained these exceptions and found that the “measure of damages in the case is the difference in the reasonable cash market value of this property just before the alleged trespass and injury complained of and the reasonable cash market value of same after such alleged trespass and injury complained of,” and again referred to the master to take further testimony, if necessary, and to state the amount of the damages according to the measure of such damages as declared by the court. The master filed another report in which he itemized the plaintiff’s damages as follows: The lot in question was worth, prior to the explosion and injury, the sum of $800; the buildings were worth, prior to the injury, the sum of $2,000; the plaintiff was earning with said property, on an average, every month $600; the plaintiff was entitled to one month’s earnings of the tent house on account of damages in the sum of $250; that he had sustained damage by reason of the destruction of gas connections in the sum of $25, making a total sum of $3,675. The plaintiff was charged with the value of the lot immediately after the injury in the sum of $100, and of the value of the lumber in the sum of $200. The master therefore reported that the plaintiff was entitled to the sum of $3,375. The master further reported that the lot in question was practically worthless for any purpose as long as the operations of the defendants continued. Both the plaintiff and the defendants filed exceptions to the last report of the master. The cause was finally heard by the court on the entire record and all the testimony taken in the cause both before the master and before the court. The court sustained the exceptions of both the plaintiff and the defendants to the report of the master and found that the plaintiff was entitled to recover damages of the defendants in the sum of $3,375. A decree was entered in favor of the appellee for that sum. Both parties excepted to the decree, and have duly prosecuted their appeal.

1. It will be observed that the description of the land on which the appellants were operating was not cor-' rected and perfected until the 20th of March, 1924, and this corrected lease was not placed of record until the 16th of April, 1924. In the meantime the appellee had acquired title to the land. He had been in possession of it for over a year, and had obtained a deed correctly describing it on April 8,1924, which was duly recorded on that day. Só, the undisputed record evidence shows that, at the time the appellee took possession of the land and at the time he perfected his deed and had the same recorded, he had • no constructive notice of the . rights of the appellants under their lease. But Ida Bell, the common source under which the appellants and the appellee claimed, testified that she told appellee, Morgan, at the time she leased to him, that the mineral rights and oils were sold. Says she: “I told all of them, and they all built close to the-line on that account.” That was when she leased him the land in 1923. Also, when she sold him the land, she told him that the mineral rights were sold on it. The lease was sold on the land. Witness told the scrivener to write it in the deed, and he replied, “It won’t make any difference.” She further testified that she told the appellee “if he didn’t want to take the land with the lease on it he didn’t have to.”

The appellee testified that Mrs. Bell mentioned to him once or twice that Bernstein had an oil and gas lease on his property. Witness further testified that he never heard of an oil and gas lease being on the property until Bernstein told him of it'on March 29, 1924.

P. F. Harold, the notary public who took Mrs. Bell’s acknowledgment to the deeds, testified that he heard Mrs. Bell make the statement to appellee, when both deeds were executed, that Eli D. Bernstein had an oil and gas lease on the land; that this was the same land she sold to appellee.

A preponderance of the evidence therefore shows that, at the time the appellee acquired his title to the land in controversy, he had actual notice of the appellant’s rights under the oil and gas lease. The appellants had a right, under their lease, to mine and operate for oil and gas, to lay pipe lines and build tanks, towers, stations and structures on the land for the purpose of producing, saving and taking care of oil and gas products. The appellee, according to the preponderance of the evidence, was not holding the lands without notice of 'the above rights of the appellants under their oil and gas lease. The appellee therefore had notice that appellants had the right to enter upon the lands in controversy to mine for oil and gas and to do whatever was necessary, as prescribed in their .lease, for the production, conservation and sale of those products. In doing so the appellants were not trespassers. As their rights were prior in time to the rights of the appellee under his deeds, wherever the rig’hts of the appellants were in conflict with the rig’hts of the appellee, appellants’ superior rights must prevail. The appellants therefore are not liable to the appellee in the operation of their oil and gas lease unless, in operating under the terms of their lease, they have negligently injured him. As said in Grimes v. Drilling Co., 216 S. W. 202, 204, “as appellant purchased the premises burdened with the terms of the lease, he is in no position to complain of conditions produced by appellees such as are usual and customary during the drilling of an oil well.” And, as is said in Coffindaffer v. Hope Natural Gas Co., 74 W. Va. 107, 81 S. E. 966, 967, “the principle is well established that injury necessarily inflicted in the exercise of a lawful right does not constitute liability. The injury hiust be the direct result of the commission of a wrong. If defendant did no wrong, it is not liable, notwithstanding the injury.” See also Thompson on Real Property, vol. 6, p. 282.

2. In the view we have of this record, we deem it unnecessary to set forth and discuss the testimony upon the issue of damag’es. We are convinced that the cause has been tried upon an entirely erroneous theory. For it appears, from the trial court’s decree settling the rights of the parties and referring the cause to a master for the ascertainment of damages, the court proceeded upon the theory that the rights of the appellee to the lands were prior and superior to the rights of the appellants because of the fact, as found by the court, that the appellee had recorded his conveyance prior to the recording of the perfected lease to the appellants; that the possession of the appellee under his prior recorded deeds gave him superior rights in the premises to the appellants. But, as we have seen, the law is to the contrary wherever the rights of the appellants and those of the appellee do not coexist but are in conflict with each other. It will be observed that the court found as follows: “That the plaintiff is entitled to recover damages from the defendants for the injuries sustained by the plaintiff to his property, and the question of the amount of such damages is referred to a special master for ascertainment, and Mr. John Harris is appointed as such special master, with instructions to ascertain such damages from the testimony already táken before the court and that to be taken by him. ’ ’ The master took testimony and made his report, bottomed upon the instructions of the court. This report upon the exceptions of the appellants thereto was disapproved and the cause was resubmitted to the master, and the court in its order found as follows: “The court further finds that the measure of damages in this cause is the difference in the reasonable cash market value of this property just before the alleged trespass and injury complained of and the reasonable cash market value of same immediately after such alleged trespass and injury complained of.” The master was directed to consider the whole of the testimony already taken in determining the amount of such damage, and, if necessary, to take further testimony. The master then made his report based upon the court’s additional instructions, to which exceptions were filed by both the appellants and.the appellee. These exceptions were all sustained, and the court again disapproved the report of the master and entered a decree for the appellee in the sum of $3,375.

There is some testimony in the record tending to prove that the appellants had negligently damaged the appellee’s property, but there is nothing in the decree to indicate that the damages were awarded the appellee upon this theory. In the absence of a finding by the trial court upon the correct theory of the law that the appellants were only liable in damages to the appellee for negligence in the operation of their lease, we deem it unnecessary, indeed improper, to set out.and discuss the testimony in this record ¡bearing upon the issue of damages. The trial court ruled correctly, under the undisputed testimony, in refusing to grant appellee’s prayer for injunction, but erred in declaring that the measure of the appellee’s damages is the difference in the reasonable cash market value of this property just before the alleged trespass and its cash market value after the alleged trespass and injury complained of, and in directing the master to ascertain the. amount of the damages from the proof in the record and such further testimony as he might consider necessary. . •

Now, the operation of appellants’ lease, even in the most prudent and careful manner, would necessarily diminish the cash market value of the property for residence purposes and many other uses to which the surface might be devoted. But certainly the appellants, in exercising their rights under their lease in a prudent and careful manner, would not be liable to appellee because such drilling operations diminished the cash value of the property for other purposes. In 6 Thompson on Real Property, p. 282, § 5136, the author has an interesting discussion on the subject of “Incidental Rights of Separate Owners of Surface and. Minerals,” in the course of which, among other things, he says: “As against the surface owner, the owner of the minerals has a right, without any express words of grant for that purpose, to go upon the surface to drill wells to his underlying estate, and to occupy so much of the surface beyond the limits of his well or wells as may be necessary to operate his estate and to remove the product thereof. This is a right to be exercised with due regard to the rights of the owner of the surface, but, subject to this limitation, it is a right growing out of the contract of sale, the position of the stratum sold, and the impossibility of reaching it in any other manner. * * * It is a well settled principle that injury necessarily inflicted in the exercise of a lawful right does not create a liability. The injury must be the direct result of the commission of a wrong.” Although the court, in its final decree, rejected the report of the master predicated upon the testimony and the declaration of law of the court as to the measure of damages, nevertheless the testimony was taken and the cause heard by the master and by the court upon the testimony and erroneous declaration of law which the court announced to guide the master in the matter of taking proof and formulating his report. The parties are entitled to a decision of the chancellor upon the issues joined and proof taken on a correct theory of the law. See Greenlee v. Roland, 85 Ark. 101, 107 S. W. 193; Reeder v. Epps, 112 Ark. 562, 166 S. W. 747. Therefore, since the cause was heard and determined upon an erroneous theory of the law, the judgment must be reversed, and the cause will be remanded with directions to the trial court to hear the cause upon the competent and relevant testimony already in the record, and, if the parties so elect, to take further proof and to develop the cause according to the principles of law herein announced. It is so ordered.


author: Hart, J.,

text:
    Chapman & Dewey Land Company v. Board of Directors of St. Francis Levee District.
    Opinion delivered December 20, 1926.
    1. Levees — recovery of taxes illegally assessed. — Where plaintiff paid levee taxes illegally assessed on land which had been taken 'by the levee district for levee purposes, he cannot recover such taxes, though he did not know how much of his land had been appropriated, since his payment was voluntary, and by refusing to pay he could have made his defense in the suit which the district would have had to bring to collect the taxes.
    2. Taxation — recovery of wrongful taxes — coercion.—The coercion which will render a payment of taxes involuntary must consist- of some actual or threatened exercise of power, from which the taxpayer has no reasonable means of immediate relief, except by making payment.
    . 3. Appeal and error — harmless error. — Refusal to transfer an action to recover taxes paid to a levee district to the chancery court was not prejudicial, both because the circuit court was the proper forum, and because, if the cause had been transferred to equity, the result would have been the same.
    Appeal from Crittenden Circuit Court; W: W. Bandy, Judge;
    affirmed.
    statement by the court.
    Chapman & Dewey Land Company brought this suit in the circuit court against the board of directors of the St. Francis Levee District to recover $3,138.84 for taxes which, it claimed, had been illegally levied and collected on its lands.
    . Under the allegations of the complaint, the plaintiff is the owner of large bodies of land in' Mississippi and Poinsett counties, in the State of Arkansas, which are in two drainage districts created under the laws' of the State of Arkansas by the Greneral Assembly of 1917. Said drainage districts filed plans and specifications for the construction of drainage systems in said counties, and, under their plans, certain lands belonging to the plaintiff were condemned and appropriated by the drainage districts for right-of-way purposes. The amount of land so taken was used in constructing drainage ditches, levees, and that part of the improvement known as flood-ways. Notwithstanding the condemnation of said lands, said drainage districts demanded and collected from the plaintiff drainage and levee taxes upon said lands for the years 1918, 1919 and 1920.
    Plaintiff filed an amended complaint which alleges that the acts creating said drainage districts set ont what lands were embraced within the districts, but did not prescribe the location of the ditches. After the creation of said districts, plans and specifications were filed showing what part of the lands of the plaintiff were to be used in constructing the ditches, levees and floodways, but no survey was made showing the amount and location of said lands. After the improvement had been completed in 1921, and it was definitely known what lands had been actually taken, they were stricken from the taxbooks of the levee district. The amended complaint also alleges that, prior to 1921, it was impossible for the plaintiff to locate the lands actually taken by the drainage districts for the construction of the drainage ditches and levees.
    The circuit court sustained a demurrer to the complaint and to the amended complaint, and, the plaintiff refusing to plead further, its complaint was dismissed. The case is here on appeal.

      W. Chapman Deiuey and Wils Davis, for appellant.

      Mann <& McCulloch, for appellee.
   Hart, J.,

(after stating the facts). The judgment of the circuit court was correct, according to the principles of law decided in Brunson v. Board of Directors, 107 Ark. 24, 153 S. W. 828. In that case a landowner in a levee district made a payment of levee taxes under an illegal assessment, with knowledge of the fact, and it was held that the payment was voluntary and that the taxes could not be recovered. In that case, as here, if the landowner had refused payment of the improvement district taxes to the collector, the latter would have had no authority to sell the lands to enforce payment. Under the statute, the board of directors would be required to institute an action in the chancery court to collect the taxes. The landowner could make his defense in that suit, and thus would have had his day in court. White River Lumber Co. v. Elliott, 146 Ark. 551, 226 S. W. 164, and Paschal v. Munsey, 168 Ark. 58, 268 S. W. 849.

Under these decisions, the coercion which will render a paymént of taxes involuntary must consist of some actual or threatened exercise of power possessed by the party exacting or receiving payment over the person or property from which the latter has no reasonable means of immediate relief except by making payment.

But it is insisted by counsel for the plaintiff that the taxes alleged in the complaint takes the case at bar out of .the operation of the principle decided in these cases and brings it. within the rule announced in Dickinson v. Housley, 130 Ark. 260, 197 S.W.25. We do not think so. In that case the collector refused to accept any sum less than the full amount demanded, and had the power to have sold the lands of the taxpayer in payment of the illegal tax. This would have constituted a cloud upon the title, and it became necessary for the owner to pay the illegal demand in order to prevent the sale. No such power existed in the board in the case at bar. If the plaintiff' had refused to pay the taxes, the board of directors would have been compelled to institute proceedings against the landowner in the chancery court to collect the taxes, and the plaintiff could have presented the same matters as are set up in this case to defeat the collection of the taxes. In short, it could have defended a suit to collect the taxes upon the same ground that it bases its right to recover the taxes which it voluntarily paid.

It is true that the amended complaint sets up the fact that it did not definitely know how much of its land had been taken for the construction of the drainage ditches, levees and floodways until it had paid the taxes for the years 1918,1919 and 1920. But it could have required the levee districts to have set forth and shown how much land had been taken for the construction of the proposed improvements before they could have recovered the taxes. In other words, the burden of proof would have been upon the board of directors to have shown how much taxes were due before they could have recovered any amount. In ascertaining this fact, they would have had to eliminate the lands which they had taken in the construction of the improvements in the various ways set out above.

It is also insisted by counsel for the plaintiff that the court erred in refusing to transfer the- case to the chancery court, as requested by it after it had filed its amended complaint. In the first place, it may be said that the circuit court was the proper, forum in which to bring the action. Brunson v. Board of Directors, 107 Ark. 24, 153 S. W. 828. In the next place, if the case had been transferred to the chancery court the result must have necessarily been the same. It would have been the duty of the chancery court to have decided the principles of law as they were decided by the circuit court. Hence no prejudice whatever could have resulted to the plaintiff by the failure to transfer the case to equity.

It follows that the judgment of the circuit court was correct, and it will therefore be affirmed.


text:
    Roach v. Knappenberger.
    Opinion delivered December 20, 1926.
    1. Adverse possession — subordination to united states. — The general rule is that one claiming title by adverse possession in sul> ordination only to the United States may assert such possession as against another claimant.
    2. Adverse possession — possession consistent with that op another. — Possession of land by one who recognizes the title of another thereto may be adverse as against the true owner.
    3. Judgment — conclusiveness as to stranger. — One acquiring possession of land before applying to the United States for a homestead right therein was not precluded from claiming adverse possession in the land by a judgment adverse to the United States in a suit against another, to which he was not a party, though he afterwards acquired knowledge of such suit.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Keclc, Judge;
    reversed.

      STATEMENT BY THE COURT.
    This is an action of ejectment by appellee against appellant to recover the possession of a tract of land in the Chickasawba District of Mississippi County, Arkansas, described in the complaint. Appellee showed a clear paper title to the land. Appellant pleaded title by adverse possession under the statute of limitations.
    The record shows that the Holly-Matthews Manufacturing Company conveyed the land to Jake and Alvin Huffman. They , reconveyed the land to the Holly-Matthews Manufacturing Company, and it, in turn, conveyed it to appellee. In 1913 the .United States Government brought suit in an Arkansas Federal court against tike Holly-Matthews Manufacturing Company, which, at that time, had the paper title to the land, to recover possession of it. In May, 1918, the suit was decided adversely to the United States, and the title to the land was decreed to be in the Holly-Matthews Manufacturing Company. In the early part of 1915 appellant purchased from a man by the name of Carroll certain improvements which he had constructed upon the land in question and entered into possession of it. On June 14, 1915, appellant received a certificate of entry and receipt from the United States Land Office at Little Rock, Arkansas. This was after he had entered into possession of the said land.
    According to the testimony of appellant, he has lived on the land since that time and has had the same at all times inclosed with a fence. He made improvements on the land of the value of $700. He denied that he in any manner recognized the title of the Huffmans, and testified that he had held the actual and exclusive possession of said land against all the world except the United States Government.
    Evidence was introduced by appellee tending to show that appellant had agreed with Jake Huffman to make improvements on the land, and that, if he lost title to the land, he might remove the improvements from the land. Other facts will be stated or referred to in the opinion.

      The court directed the jury to return a verdict against the appellant. The case is here on appeal.

      Nelson S Crawford, for appellant.

      C. A. Cunningham, for appellee.
   Hart, J.,

(after stating the facts). According to the testimony of appellant, he entered into the possession of the land involved in this suit in the early part of 1915, and held the actual and exclusive possession of it against all the world except the United States for more than seven years before this suit was brought, and had the possession of the same when the suit was commenced on the 20th day of May, 1924.

In a case-note to 20 Ann. Cas. 538, and in 31 L. R. A. (N. S.) 153, it is said that the general rule is that one claiming title by adverse possession in subordination only to the United States may assert such possession as against another claimant. It is said that the decisions rest upon the theory that it is not absolutely necessary that adverse possession should be held against the whole world in order to enable one claiming by it to assert it against another claimant; and further, that, as the statute of limitations can never run against the United States, unless by express statute, a holding in subordination to the United States, but adversely to everybody else, cannot be deemed to be inconsistent. The soundness of the rule has been recognized by the Supreme Court of the United States. Iowa R. Land Co. v. Blumer, 206 U. S. 482. Other cases on both sides of the question from the courts of last resort of various States may be found cited in the case-notes just referred to.

In Clemens v. Runckel, 34 Mo. 41, 84 Am. Dec. 69, it was held that a party’s possession is adverse to the true owner when he enters and holds actual, open, uninterrupted and notorious possession of land to which he expects to acquire title by preemption whenever the land should be brought into market. It was said that such possession will ripen into an absolute title at the expiration of the time provided by the statute of limitations.

In Hayes v. Martin, 45 Cal. 559, it was held that it was not requisite that a party who relies upon the statute of limitations should show that he claims title in hostility to the United States. It was said that he might admit title in the United States, either with or without a claim on his part of the right to acquire the title from the United States, and that it was sufficient if he had such possession as is required by the statute and claims in hostility to the title which the plaintiff might establish in the action.

It has been held by this court that the possession of land by one who recognizes the title of another thereto may nevertheless constitute an adverse holding as against the true owner. Shipwith v. Martin, 50 Ark. 141, 6 S. W. 514.

In discussing the question the court said: “It is urged that a defendant, claiming* by possession as against the plaintiff in ejectment, must not only show that he has held adversely to the plaintiff during the period of limitation, but that he must go further and show a possession ‘exclusive of the title of any other person.’ The statement of this proposition arouses our skepticism at once, and, when we look into the numerous authorities cited to support it, we are not surprised to find that the cases do not justify the argument on this point. It is most broadly asserted in New Orleans & S. R. v. Jones, 68 Ala. 48, but the proper qualification is made in the later case of Dothard v. Duncan, 75 Ala. 482. So, if it were conceded, as appellants contend, that the possession of the county was not adverse to the original proprietors, it would not follow that the appellee could not claim the statute bar as against Beebe and his heirs.”

The reason is that the adverse holding need not be against the whole world to put the statute of limitation in motion, but the term is used to impart notice.

But it is insisted that, even under this rule, the circuit court did not err in directing a verdict in support of appellee, for the reason that appellant would be precluded from claiming title by adverse possession by reason of the suit of the United States against the Holly-Matthews Manufacturing Company to assert title to said’ land. The record shows that appellant acquired possession of the land before he applied to the United States for a homestead right therein. It is true that evidence was introduced tending to show that he afterwards acquired knowledge of the pendency of the suit in the Arkansas Federal court, but appellant was not a party to that suit and was not bound by the proceedings thereunder. His rights could not be affected by a suit to which he was not made a party. If he had acquired possession of the land from the United States during the pendency of the suit, he would be affected by the disposition of it; but, having acquired possession before he applied to the United States for a preemption right, he was not in any wise affected by the holding in that case.

The result of our views is that the circuit court erred in directing a verdiet for the appellant and for that error the judgment must be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Haley Neeley Company v. Dunlap.
    Opinion delivered December 20, 1926.
    1. Continuance — surprise.—Where the transcript of a judgment in a foreign court was objected to as not properly authenticated, it was error to refuse a continuance to defendant on the ground of surprise, where opposing counsel had agreed that the sufficiency of the transcript would not be questioned,; though a continuance had been granted on defendant’s motion at a former term to afford opportunity to perfect the transcript.
    2. Stipulations — waiver op defect in transcript op judgment.— In a suit on a foreign judgment, a defect in the authentication thereof helé waived- by an agreement of counsel that the sufficiency of the authentication would not be questioned.
    Appeal from Washington Circuit Court; W- A. Dickson, Judge;
    reversed.

      W. Irvine Whitty, for appellant.
   Smith, J.

Appellant broug'ht suit on what it alleged was a 'judgment which it had recovered in a court of record in the State of Iowa against appellee. The answer denied that appellant had recovered a judgment, and, by way of counterclaim, alleg’ed that appellee had shipped to appellant a car of sweet potatoes, for which appellant had agreed to pay the sum of $509.12; that the car of potatoes was delivered to and accepted by appellant, who failed to pay for them. Judgment was prayed for the value of the car of potatoes. The trial resulted in a verdict for appellee for the amount of his counterclaim, and from the judgment pronounced thereon is this appeal.

When the transcript of the judgment of the Iowa court was offered in evidence, appellee • objected to its introduction upon the ground that it was not properly authenticated, and this objection was sustained. The validity of this objection is conceded, but, when the objection was made, counsel for appellant asked for a continuance upon the ground of surprise, the surprise being that he had an agreement with counsel for appellee that the sufficiency of the transcript would not be questioned, and that the only question that would-be controverted with reference thereto would be the authority under which appellee’s appearance had been entered in the original suit in Iowa. Appellant’s attorney supported this statement by an affidavit, which appears in the record. No denial of this agreement appears to have been made, and the motion for continuance was overruled upon the ground that a continuance had been had at the former term of the court and an opportunity had been thus afforded to perfect the transcript of the judgment. It was stated, and not questioned, that the continuance was granted on the motion of appellee.

The judgment should, of course, have been properly authenticated, but this was a defect which might have been waived, and which, according to the undenied affidavit of appellant’s counsel, was waived.

The deposition of an attorney in Iowa was taken, and this attorney testified that he had entered appellee’s appearance in the court there, ancLhad litigated there the question of the car of potatoes,for which judgment was asked in the cross-complaint filed in the court below. This deposition was excluded upon the ground that it was immaterial, in the absence of a showing that a judgment had been recovered.

In the-absence of any denial that there was an agreement that- no question would be raised touching the sufficiency of the authentication of the judgment sued on, we must accept that statement as true, and, if it is true, the continuance should have been granted on the ground of surprise, and, for the error in refusing to grant the continuance, the judgment of the court below must be reversed, and it is so ordered.


text:
    Missouri Pacific Railroad Company v. Green.
    Opinion delivered December 20, 1926.
    1. Railroads — liability for killing unassessed dog. — The owner of a dog which had not been assessed for taxation may recover for its killing by a railroad train, since the failure to assess does not prove that the dog was of no value.
    2. Trial — instruction singling out circumstance. — An instruction that a failure to assess a dog which was -struck by defendant’s train was a circumstance to be considered in determining its value, was properly refused as singling out a circumstance for the jury’s consideration for a particular purpose.
    3. Railroads — lookout for dogs. — A railroad company is under a duty to keep a lookout for dogs on its tracks.
    4. Railroads — presumption from finding dead dog on track.— There is no presumption that a dog was killed by a train because it was found dead on the track.
    5. Railroads — killing of dog — evidence.—Evidence held to warrant finding that a dog found dead on a railroad track was killed when struck by a train.
    6. Railroads — killing of dog — burden.of proof. — Proof that a dog found dead u-pon a railroad track was killed by the train held to cast upon the railroad the burden of showing that the animal was not negligently killed.

      7. Trial — abstract .instruction. — An instruction that a railroad company was not liable for the killing of a dog coming on the track at a time when those in charge could not discover its presence in time to avoid striking it was properly refused where there was neither pleading nor evidence on which to predicate it.
    8. Evidence — market value. — Testimony as to the market value of similar dogs in a nearby town is competent to aid the jury to determine the market value of a dog killecfby a train.
    Appeal from Hot Spring Circuit CourtThomas'E. Toler, Judge;
    affirmed.

      Richard M. Ryan and E. B. Kinsworthy, for appellant.
   Smith, J.

Appellee recovered judgment against the appellant railroad company for $2.5 damages for killing a •dog owned by him, and the railroad company has appealed.

For the reversal of the judgment it is insisted that there was no testimony showing that the dog was killed by the railroad company, and that the court erred in giving certain instructions and in refusing others, and in the admission of certain testimony.

On behalf of appellee a section-hand employed by the railroad testified .that he lived near the railroad track, and that, during the night, he heard a dog howling on •the track. The next morning appellee’s dog was found dead between the rails of the track. The dog did not appear to be mutilated, but blood had run out of its mouth or nose, and appellee testified that he examined the place where the dog was found, and discovered some blood and hair on the track.

An instruction was asked by the railroad company to the effect that appellee could not recover anything for the dog unless he had assessed it for taxation, and, in another instruction, the court, was asked' to tell the jury that the failure to assess the dog was a circumstance to be considered in determining whether the dog was valuable or worthless.

. The first of these instructions was properly refused, because, as was said in the case of El Dorado & Bastrop Ry. Co. v. Knox, 90 Ark. 1, 117 S. W. 779, “the fact that the dog was not assessed did not prove that the dog was of no value, especially when the undisputed evidence shows that the dog was valuable.”

The other instruction was properly refused because it singled out a circumstance which the jury was told to consider for a particular purpose. Such instructions are always objectionable and should never be given.

An instruction was asked to the effect that the railroad company was under no duty to keep a lookout for dogs on the track. "We have held otherwise. Holloman v. Mo. Pac. Rd. Co., 170 Ark. 573, 280 S. W. 22.

Other instructions requested by the railroad company which were refused were to the effect that, even though the dog was found dead on the track, it must also be shown that the dog was struck by a train, and that the striking and death of the dog was due entirely to the negligence of the railroad company; and that, if the dog went upon the track at a time and place when and where those in charge of the train could not and did not discover its presence in time to avoid striking it, the verdict should be for the railroad company, even though the dog was killed by a train.

The appellant railroad company asked an instruction numbered 6, and excepted to the refusal of the court to give it. This instruction reads as follows: “You are instructed that the fact that a dog was found upon defendant’s tracks raises no presumption of negligence against the defendant, and the burden is upon the plaintiff to prove by a fair preponderance of the proof that said dog was struck by defendant’s train or engine.”

The court gave, over the objection of appellant, an instruction numbered 2, which reads as follows: “You are instructed that, when an animal is found on the railroad track, dead, and the circumstances of the killing are sufficient to show that said animal was killed by the operation of a train, the burden is upon the railroad company to show that such animal was not negligently killed, and, if it fails to do this by a fair preponderance of the evidence, it would be liable for such killing.”

We think it will sufficiently appear from the discussion of instruction numbered 6, which was refused, and instruction numbered 2, which was given, that no error was committed in refusing to give the other instructions just referred to. ■

There was no presumption that the dog was killed by a train because it was found dead on the track, and instruction numbered 2 does not state that there was any such presumption. The burden was -upon appellee to show that the dog was killed by a train. It was not essential, however, that this fact be established by an eye-witness. This ivas a fact which might have been established as a reasonable and probable inference from other facts disclosed by the testimony. Here a dog was heard howling during the night on the railroad track. It is true the witness who testified to that fact did not testify that he heard a passing train at the time, but he did testify that trains ran by his house that night. The dog was found dead between the rails, and, -while not mutilated, blood had run from the mouth or nose of the dog. Near the same place where the dog’ was found, blood and hair were also found. We think these circumstances warranted a finding by the jury that a train struck the dog. Instruction '2 left the question to the jury whether the circumstances were sufficient to show that the dog was killed by a train. That fact being found affirmatively, the instruction declared the burden was then cast upon the railroad company to show that such animal was not negligently killed, and, if it failed to do so, it would be liable for killing the dog. The law has been so declared in numerous decisions of this court.

Having proved facts and circumstances from which the jury found that a train had killed the dog, the plaintiff had made a prima facÁe case, and was not required to show that this had been negligently done. The court was correct therefore in refusing to charge that appellee was required to show that the death of the dog’ was due to the negligence of the railroad, company. If a train killed the dog, no explanation of the killing was made. The court was correct therefore in refusing to charge the jury that, if the dog came upon the track at a time and place when those in charge of the train could not and did not discover its presence in time to avoid striking it, to find for the defendant railroad company. No such defense was made, and there was no testimony upon which to predicate the instruction.

The instruction on the measure of damages told the jury that, “if you find from a fair preponderance of the evidence in this case that the defendant company negligently killed the plaintiff’s dog by the operation of one of its trains, your verdict should be .for the plaintiff,” and the jury was directed, upon making that finding, to assess the damag’es at the market value of the dog.

A fair interpretation of the instruction given is, we think, that the jury was required to find that a train killed the dog, but that, if this fact were found from the circumstances in proof, the burden then devolved upon the railroad company to show that it was not negligent in striking the dog, and no attempt was made to show how the dog was struck. This being true, there was no error in refusing to give instruction numbered 6, set out above.

Several witnesses testified as to the market value of the dog, and no one placed it a.t less than $25. One witness testified that similar dogs sold in a nearby town for $50. This testimony was not improper in aiding the jury to determine what the market value of the dog was at the time and place it was killed.

No error appears, so the judgment is affirmed.


text:
    Coleman v. Gulf Refining Company of Louisiana.
    Opinion delivered December 20, 1926.
    1. Torts — concurrent negligence — recovery.—Where one is injured by the concurring negligence of two or more persons, he may sue them all jointly, or he may sue any one alone,, but he can have only one satisfaction for his injury.
    2. Release — concurrent negligence. — Where the concurrent negligence of two persons was responsible for an injury to a third person, a settlement by the latter of an .action for such injury will bar an action against the other, although the defendants in the respective actions were not joint tort-feasors.
    3. Release — fraud as defense. — Where one, injured in a collision between his employer’s truck and a train, signed a release of his injuries in an action against the railroad, and there is no contention that any. fraud was practiced on him by the railroad company in securing the release, he will not be heard to say, in an action against his employer,.that there was a mental reservation on his part that the release should not have the effect which the law imputes to it.
    Appeal from Union Circuit Court; W. A. Spear, Judge;
    affirmed.

      Jeff Davis, for appellant.

      Patterson & Rector, for appellee. -
   Smith, J.

Appellant alleged and offered testimony tending to show that, on October '26, 1923, while immediately engaged in the discharge of his duties as an employee of the Gulf Refining Company of Louisiana, hereinafter referred to as the company, he was being driven in an automobile belonging to the company by another employee of the company, who negligently drove the automobile across the tracks of the Missouri Pacific Railroad in front of an approaching train, which struck the automobile and very seriously injured appellant. He brought this suit to recover damages to compensate, in part, this injury.

In its answer the company denied liability, and, by way of affirmative defense, alleged that appellant had first sued the railroad company, and had settled that suit by accepting $1,500 from the railroad company, and, as an evidence thereof, had executed the following release:

“In full release, discharge and satisfaction for all damages and personal injuries (including both known and unknown injuries and future developments thereof), growing out of or in any way resulting from the following described accident, to-wit: Account of automobile being struck at Norphlet, Arkansas, October 26, 1923, in which P. M. Coleman was riding, while a traveler, by passenger train 824, engine 2315.
“It is also hereby stipulated and agreed by the plaintiff, P. M. Coleman, and his attorneys, Patterson & Rector, that the above entitled case now pending in the Union County Circuit Court, Arkansas, be dismissed with prejudice on the payment of costs by the defendant, the Missouri Pacific Railway Company. The within settlement also includes every claim of every class or character, past, present and future, arising from or growing out of the above mentioned accident; consideration $1,500.
“Received of Missouri Pacific Railroad Company one thousand five hundred no-100 dollars in full payment for the above account, and in full release, discharge and satisfaction as written and [or printed above], which release I have read (or had read to me), the terms of which I understand and to which I agree.
“In testimony whereof I have hereunto set my hand this 22d day of July., 1924. ’ ’..

After appellant’s injury he was confined in a hospital for some weeks, and his bill there, including the services of the surgeons who attended him, amounted to over a thousand dollars. This bill was paid by the company.

Appellant testified that one King, who was the claim agent of the company, advised him’to consult the law firm of Patterson & Rector in regard to bringing suit agajnst the railroad company, and, upon the advice of King, he retained these attorneys to represent him.

At that time Patterson & Rector were the regularly retained attorneys of the Gulf Company, a fact then unknown to appellant. A written contract of employment was executed between appellant and his attorneys, ánd inserted therein was the following* clause:

“We further authorize you to pay to the Gulf Refining* Company of Louisiana, out of any funds recovered from the above named defendant, an amount, sufficient to reimburse said Gulf Refining* Company of Louisiana, for doctors’, hospital and dentists’ bills and other expenses incurred by us as a result of said injuries and paid by the said Gulf Refining Company of Louisiana. ’ ’

Appellant testified that he did not authorize this to he done, but, as he had been advised by his attorneys that the Gulf company w;as not liable to him for his hospital bill, he made no objection to this clause, and signed the contract with knowledge that it had been inserted in his contract with the attorneys. It appears that, after receiving the sum of $1,500 from the railroad company, and after paying his* attorneys the fee agreed upon, the claim of the company against appellant for hospital fees was settled for the sum of $575, which was paid the company out of the proceeds of the settlement with the railroad.

Appellant detailed, as a vdtness- in the trial below, the manner in which he was injured, and it is not questioned that his testimony made a case for the jury as to the liability of the Gulf company, except for the release to the railroad company. He further testified that he had been led to believe by his attorneys that the defendant Gulf company was not responsible for his hospital fees, and the attorneys did not at any time tell him that he had a cause of action against that company.

Pursuant to their contract, the attorneys representing appellant brought suit against the railroad company, and this suit was later compromised by the payment of the sum of $1,500. Appellant admitted signing the release set out above, and also admitted that, when it was executed, he had learned that his attorneys were also the attorneys for the Gulf company. He admitted that he knew the purpose and effect of the release executed to the railroad company was to acquit the railroad company of any further liability to him on account of his injury, but he offered to testify that, in executing this release, it was not his intention or purpose to extinguish his claim against the Gulf company, as he did not feel that the sum paid him by the railroad company fully compensated him for his injury. An objection to his testimony was sustained, and this ruling is assigned as error.

Appellant admits that, if the railroad company and the Gulf company had been joint tort-fea,sors in injuring him, the release would bar this action; but he insists that, as there was no purpose on the part of either to injure him, their liability to him .is several, and not joint, although he had the right to sue them together, and that the court should therefore have permitted him to show that he had not received full and complete compensation for his injury and he should have been allowed to proceed with his áction against the Gulf company to obtain full and adequate redress.

It was the view of the court below that the release' barred the present action, and, upon that theory, a verdiet was directed in favor of the Gulf company at the conclusion of the introduction of the testimony in appellant’s behalf.

We concur in the view of the court below. Where one is injured by the concurring negligence of two or more persons, he may sue them all jointly, or he may sue any one alone, but he can have only one satisfaction for his injury.

In the case of Spears & Purifoy v. McKinnon, 168 Ark. 357, the plaintiff was injured through the joint negligence of two surgeons, and he recovered a judgment for damages. The verdict in the case was for the total sum of $7,000, but it was recited in this verdict that one-half thereof, or $3,500, should be recovered against each of the defendants. In modifying the judgment pronounced thereon so that the total sum recovered should be limited to $3,500, we said that the defendants were joint tortfeasors and liable as such, if at all, but, as there was only one tort and one damage, there conld be only one recovery, and, as the jury had fixed the liability of each tort-feasor at $3,500, there could be no greater recovery against either of them, or both of them, than that sum. The theory of the case was that one could have only a single compensation for his injury.

In the case of St. Louis Southwestern Ry. Co. and St. Louis, Iron Mountain & Southern Ry. Co. v. Kendall, 114 Ark. 224, the plaintiff was injured through the concurring negligence of the employees of both railroads, and both were sued in a single action. It was there said: “■Both of the railroad ..companies were negligent, and, but for the negligence of each, the collision would not have occurred, and the concurring negligence of both produced the injury for which both are liable. Cyc. lays down the following general rule: * * Where an injury is sustained by reason of the joint or concurrent negligence of two railroad companies, * * * plaintiff may sue both jointly, and it is not necessary that there should be a breach of a.joint duty or any concerted action on the part of the defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of the defendants owed the plaintiff a higher degree of care than the other.’ 33 Cyc. 726.”

Appellant’s argument is that the Gulf company and the railroad company were not joint tort-feasors, for the reason that they were not acting pursuant to a common wrongful purpose, but that, on the contrary, neither intended to injure him, and' he would not have been injured but for the concurring negligence of the two companies. The driver of the automobile in which appellant was riding negligently drove upon the track of the railroad, and the employees of the railroad in charge of the engine failed to maintain a lookout. Appellant insists therefore that, not having obtained a full satisfaction from the railroad company, he may require the Gulf company to complete his compensation.

The fallacy of this argument is that appellant received only one injury, and is entitled to but one compensation. He might have obtained this by suing either or both of the tort-feasors, but, when he accepts what is intended as full satisfaction of the liability of one, the other is released, the applicable legal principle being that one is entitled to only a single satisfaction.

In 38 Cyc., pages 490 and 491, chapter “Torts,” upon the subject of “Electing the Wrongdoer” (to sue), under the subhead of “Joint and Several Liability,” it is said: “Separate actions may be brought either simultaneously or successively, judgment may be recovered in each, and plaintiff may elect which judgment he will enforce. But the satisfaction'of one of the judgments will operate as a satisfaction of all.”

In the case of State of Maryland, to the use of Cox, v. Maryland Electric Railway Co., 126 Md. 300, 95 A. 43, L. R. A. 1917A, page 270, a syllabus reads as follows: “ A settlement of an action against one person for an injury causing death will bar an action against another for the same death, although the defendants in the respective actions were not joint tort-feasors.”

To this case there is an extensive annotator’s note on the “release of one of two or more persons severally, but not jointly, liable for a tort, as affecting liability of others,” and upon this subject the annotator says: “The majority of the cases warrants the following conclusion: A release to one liable with another or others for the same injury releases the other or others where each of the tort-feasors is liable for the entire damages suffered by the injured party; it is immaterial whether they are jointly liable. But, where a person liable with others for an injury is liable only for the part contributed by him, a release to him does not release’the others. The distinction is 'between a divisible and an indivisible cause of action. In the latter case, i. e., where a person liable with others for an injury is liable only for the part contributed by him, it may be shown, as a matter of fact, that the release to the first of the tort-feasors was given upon a consideration which was intended to compensate the injured party for the entire injury; upon such a showing- the release does operate as a release of the others, since the injured party has been compensated for the entire injury, and it is the theory of the law to allow • only one recovery for the same injury.”

In the case of McCoy v. L. & N. R. Co. 146 Ala. 333, 40 So. 160, the plaintiff’s intestate was killed in a collision between a railroad locomotive and a streetcar. Plaintiff sued the streetcar company and recovered judgment for $1,500, which was paid, and she thereafter brought suit against the railroad company. In holding that the satisfaction of the judgment against the streetcar company was a bar to the suit against the railroad company, the Supreme Court of Alabama said: “Reading the complaint and the plea together, it clearly appears that, whether there was -the ligament of common purpose binding the acts of the two companies together or not, their acts of negligence united in causing- the single injury to the plaintiff. A rational rule deduced from the authorities supra would seem to be that, ‘where one has received an injury at the hands of two or more persons acting in concert, or acting- independently of each other, if their acts unite in causing’ a single injury, all of the wrongdoers are liable for damages occasioned by the injury. It is also manifest that this single injury, in itself or of itself indivisible, constitutes an indivisible cause of action. This is true, notwithstanding the fact that the party injured could maintain separate suits on this cause of action against the tort-feasors at the same time, and could have sued them jointly, and the mere pendency of suit or judgment, without satisfaction, could not be set up in defense of either tort-feasor. So, in the case at bar, two companies were tort-feasors, and, whether jointly liable or not, the plaintiff had a cause of action against them separately; but she had only one cause of action, and it was an indivisible one. Upon this cause of action she could have maintained a suit against each of the tort-feasors simultaneously, and the mere pendency of suit, or judgment against one without satisfaction, w'ould have been no answer to the other. But, when she successfully prosecuted her single cause of action against one of the tort-feasors and received satisfaction in full of the judgment, that was satisfaction for the entire injury for the single cause of action, and, after satisfaction, although it moved from only one of the tortfeasors, no foundation remained for a suit against any one. Her cause of action was extinguished. Furthermore, the presumption would be that, in the suit in which the judgment was obtained and satisfaction accepted, full damages were accorded. ’ ’

It was there further said: “In the case of Cleveland v. City of Bangor, 87 Me. 259, 32 Atl. 892, 47 Am. St. Rep. 326, with respect of satisfaction by a tort-feasor not jointly liable with another, it was said: ‘But, with regard to the point under consideration, no sound reason has been given, and it is believed none can be assigned, for such a distinction between the case of wrongdoers who are jointly and severally liable and of those who are only severally liable for the same injury. In either case the sufferer is entitled to but one compensation for the same injury, and full satisfaction from one will operate as a discharge of the other.’ Brown v. Cambridge, 3 Allen 474; Abb v. N. P. R. Co. (Wash.) 68 Pac. 954, 58 L. R. A. 293, 92 Am. St. Re. 864. In Lovejoy v. Murray, 3 Wall. (U. S.) 1, 18 L. ed. 129, Justice Miller, for the court, said: ‘But, when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience that the law will not permit him to recover ag’ain for the same damages.’ ”

We have quoted extensively from this case because the reasoning thereof is directly applicable here.

Upon the question _that the court should have admitted testimony tending to show that the release had been obtained by fraud, in that appellant had not been advised by his attorneys, who were also the attorneys for the Gulf company, that he had* a cause of action against the Gulf company, and had not been advised by them that a settlement in favor of one would release the other, and that he did not intend the release to the railroad company to operate to release the Gulf company, it suffices to say that, if this testimony were competent, it would profit appellant nothing. This is true because he does not question the binding effect of the release so far as the railroad company was concerned. He knew, when he executed this release, that his attorneys also represented the Gulf company. He knew this release was executed for the purpose of discharging the railroad company from any and all liability to him, and that such was its effect. There is no contention that this writing was in the nature of a covenant not to sue, which we have held does not amount to a release. Hadley v. Bryan, 70 Ark. 197, 66 S. W. 921; Pettigrew Machine Co. v. Harmon, 45 Ark. 290; Dardanelle & R. R. R. Co. v. Brigham, 98 Ark. 169, 135 S. W. 869; Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257.

Appellant had sued the railroad company, and, in this action, he had the right to demand full satisfaction for his injury. He accepted a sum which, he admits, was paid him in full satisfaction of his demand against the railroad company, and this demand is the identical one which he here seeks to enforce. There is no contention that any fraud was practiced upon him by the railroad company, and he will not therefore be heard to say that there was a mental reservation on his part that the release should not have the effect which the law imputes to it. Kansas City Sou. Ry. Co. v. Armstrong, 115 Ark. 123, 171 S. W. 123.

• It follows therefore that the court was correct in holding that the release to the railroad company barred this suit and in directing a verdict in appellee’s favor •upon that theory, and that judgment will therefore be affirmed.