author: Méhaeey, J.

text:
    Bickley v. Morgan Utilities Company, Incorporated.
    Opinion delivered May 9, 1927.
    1. Nuisance — ice plant in residential district. — In determining whether the operation of an ice plant should he restrained in the residential district of a city, the test whether, under the circumstances, its operation would constitute a nuisance is the reasonableness of operating the plant in such a locality, and under the attending circumstances.
    2. Nuisance — operation op ice plant enjoined. — The operation' of an ice plant in a residential district held a nuisance and should he restrained, where -it materially injured property and annoyed the residents, regardless of how well it was constructed or conducted.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    reversed.

      James D. Head, for appellant.

      Rose, Hemingway, Cantrell $ Loughborough, for appellee.
   Méhaeey, J.

This .is a suit by appellants for an injunction to prevent the erection and maintenance of an ice plant on lots 5 and 6, in block 58, in the city of Texar-. kana. The following is in substance the complaint filed in the chancery court:

“«The complaint alleged that the appellants were respectively the owners of lots set out therein; that the Morgan Company had purchased lots 5 and 6, in block 58, with the avowed intention and purpose of erecting thereon a plant for the manufacture and sale of ice; that appellant’s lots were adjacent to the location selected for said plant; that appellants and their predecessors had continuously owned lots referred to for twenty years or more, and during all of which time the same had been devoted exclusively to residential purposes; that the homes of each of the appellants were located on the various lots described in the. complaint. It was also alleged that the defendant had begun excavation for an ice plant, and would continue the construction and erection thereof, unless restrained; that the maintenance and operation of an ice plant would materially interfere with the enjoyment by plaintiffs of their homes; that they would be greatly annoyed and harassed by continuous and successive noises throughout the day and night, which noises were necessarily incident to the operation of such plant; that trucks and automobiles congregated at said plant would emit noises in starting and stopping and in loading and distributing the ice, and that, by reason thereof, the peace and comfort of their homes would be disturbed and rest therein would be rendered almost impossible; that ammonia fumes would escape from said plant, to the great annoyance and detriment of appellants,- and that the value of their property would be greatly depreciated and the occupancy thereof for dwelling rendered uncomfortable and practically impossible by the noises incident to the operation of said plant. That lots 5 and 6 had never theretofore been used for manufacturing purposes, but had been used almost exclusively for residential purposes. That the operation of said plant would necessarily result in a nuisance, to the irreparable damage of plaintiffs in the enjoyment of their homes, and in reduction of the market value of their property.' *

The prayer ivas for an injunction restraining the erection and maintenance of said ice plant.

The appellee filed answer, in substance as follows:

The answer denied the material allegations of the complaint, except the ownership by appellants of the various properties therein set out, and especially denied that the said plant would result in annoyance or disturb the rest of or the enjoyment of the comfort of the homes of the appellants. It alleged the purchase by Morgan Company of the property, at which time there was a small frame cottage and filling station and an automobile paint shop thereon, and admitted that it was engaged in the construction of an ice plant thereon. It alleged that Broad Street is the main business street of the city, and is just south of Third Street, and that Broad Street is built up almost entirely of business concerns, including manufacturing concerns, and-had been in such condition for years; that, in the past few years, Third Street has been taken for business purposes and practically all the residences removed therefrom, and that recently the fire limit had been extended by the city council, so as to include 'both blocks 58 and 59 of the city, of Texarkana; that a permit for the erection of the building had been issued by the city authorities; that the business section was fast encroaching upon Third Street; that no new residences had been erected on Third Street for many years, and the old residences were being removed therefrom. The answer’ further alleged that the ice plant being erected would be modern, operated by electric motors, and practically noiseless; that it would be kept sanitary, and would be so erected and constructed as to be beautiful; that the deliveries of ice and ingress and egress to the plant therefor would be made from the Third Street side of the property, and that the erection and operation of said plant would not be a nuisance.

J. G. Bickley testified, in substance, that he had lived in the city for thirty years, and lived on lot 4 in block 58, and had lived there for seven years; that all of the lots in block 58, except 5 and 6, were occupied solely by residences, and there was only one rent house in the block, a residence owned by Olivette. Howard owns lot 8, in block 59, and in addition thereto has a little confectionery store in front of the house, while the east half of block 59 is owned and used by the Catholics for school and church purposes. Block 58 is used solely for residences, except a little plumbing shop and filling station ón lot 6, and a little paint shop. There are no business houses in block 56. On block 55 there is an office building of the Security Mortgage Company, and from there on to Hazel Street it is all residences. South of Third, in block 69, there is a garage, while Bnhrman-Pharr Hardware Company is in block 68. The north half of block 67 is residences, while the south half of 67 is a little brick store. North half of block 66 is wholly residences. On the south half of 66 there is a streetcar barn; on the south half of 65 there is Tennison’s tin shop; on the north half of that block are residences. Across Hickory Street, in block 64, the property is occupied by stores, residences and a garage; all of the property east of Hickory and north of Third to County Avenue streetcar line is occupied by residences, and the whole district of Fourth Street back to Hazel Street is devoted exclusively to residences, except a tire shop on Fourth Street. The Bottoms house, the second finest in the city, is on Fifth and Hickory, while W. H. Arnold lives directly across, in front.

The brick wall of the ice plant is within six feet of witness’ bedroom window. They left a big window on the side next to witness’ property. The first witness knew of the erection of the plant was when the work was begun, and he served notice on them that he was going to enjoin them. This was a week or ten days before suit was begun. No material had been put on the ground when notice was served.

Witness stated that he had observed the operation of the electrically driven ice plant of Mr. Powers, on Broad Street. At the time he took notice particularly of it it was only running a part of the machinery, but could easily he heard two blocks away at night. Witness is located two and a half blocks from the Powers plant. It would be necessary, in the operation of the plant of appel-lee, to use trucks or teams to distribute the ice, and that in the summer time plants are operated day and night. They begin their deliveries at four or five o’clock, and witness stated he could not live in his house at all because of the noise and fumes from the ammonia. He could smell ammonia from the Powers plant when out in the street, and could hear the running of the engine of the Powers plant two and a half- blocks from it. Tbe ice is manufactured in sheet-iron buckets, and, when frozen, the buckets are dumped in hot water, and, when they pull more than one can at a time, you can hear them half a mile on a still night.

If they began operation at four o ’clock in the morn-' ing there would be no sleep, and witness’ property would be ruined for residential purposes, and he knows of nothing else that could run on his property, unless it was a tin shop or something of that character. Nearly all of the property in blocks 56, 57, 58 and 59 are.owned by people who' live in them; there are just a few rent houses. Mr. Booker, one of the plaintiffs, has lived there twenty years; the Brannons fifteen or twenty years; Mr. Casey has owned his property for twenty years.

On one of the lots, owned by Olivette, there is a small storehouse; the tire shop referred to is a little retail shop where they sell tires. The Iron Mountain Railroad has its main line and switch tracks,beyond Broad Street, and Stándard Lumber Company faces them. There is a coal-chute on Broad Street, and the Standard Lumber Company is two or three blocks from that. The coal-chute and the lumber plant run only in the daytime. The operators of streetcars live on the north part of block 66. Streetcars begin running at six o’clock in the morning. They are a block from witness’ property, but he can hear them. In the daytime they can hear the tin plant, and there is nothing in the vicinity operating at night, except the streetcars, which run rather late. Witness knows nothing of the operation of ice plants. The only opening is on Pecan Street, and witness supposes they are going to unload ice there.

There have not been many buildings erected on Third Street in the past year. Several have been erected from the streetcar line facing toward State Line, but that is several blocks away. Bradfield built a small business building in the district, and this is the only one built in five years; this was a little plumbing shop on Third Street. The Powers ice plant is on Broad Street. Business buildings on Third Street are now being erected near State Line. Tbe place where this ice plant is being located is the only vacant lot that has been there for ten years; the other is all built up in residences, and has been for ten years or more.

Plat was introduced as part of the record.

T. A. Clark testified, in substance, that he was a nephew of Mrs. Ida J. Bottoms, and had lived there since 1899; she lives on the corner of Fifth and Hickory Streets, about two and a-half blocks from Powers’ ice plant. Mrs. Bottoms was continuously annoyed- by the noises from the Powers plant, and the noises disturb people in Mrs. Bottoms’ home very much. The home is a comfortable, modern home, above the average.

Witness said that he had been around ice plants a good deal, and cannot see how they could he operated without noise. He does not see how the ice could possibly he loaded or unloaded, especially at night, without making disturbing noises. These plants in the summer operate both day and night. He knows nothing about the Morgan plant proposed* to he put in. The Powers plant can he operated either by a gas engine or by dynamos. It is equipped for both. There is less noise with the electric equipment than with the gas or oil engine.

Mrs. Bottoms’ home is near the lumber company, hut the lumber company does not operate at night. It is the night noise, when one wants to rest, that worries you. Mrs. Bottoms has continuously complained of the Powers plant, and we finally got that plant to put on mufflers and other things to quiet down the noise.

He said he had seen no residences going up on Third Street lately, and thinks the only buildings are business houses. Mrs. Bottoms would he a little closer to the Morgan plant than the Powers plant, which is on Broad Street. His opinion is based on observation of ice plants, and it would he impossible to operate without such annoyance to any one living close. The business houses being built on Third Street are all close to State Line Avenue and west of tlie streetcar line on Hazel. West of the car line there has been one plumbing shop built in the past year or so.

C. K. Faison testified, in substance, that he lives on the corner of Fourth and Beech, in a two-story building with a basement and fourteen rooms, used exclusively for his residence, and the home could not be replaced for $20,000. The persons he bought the house from lived there 26 years. He thinks the erection of an ice plant would reduce the value of his property 25 per cent, at least. That he has been around ice plants some and knows something of the operation of machinery. There is much noise of dumping ice into the-vault and from the vault to the wagon. The noise from the plant running at night is bound to disturb those in residences, and, if loading began at four or five o’clock in the morning, you would have the same situation. “I cannot see how Texarkana could have business houses out as far as where I live for twenty years yet. There are no business buildings now within a block of it, and I reside within half a block of it. There are beautiful residences and churches all around. With the exception of one little store building, it has not been used, since I have been in Texarkana, for anything other than residences. I have lived in this dwelling for seven years, and the city has grown a good deal since I came here, both in business and residential sections. Business has riot encroached on the north side of Third Street. On the south side of Third, the only business house amounting to anything is Buhrman-Pharr Hardware Company. No business houses have been built there east of the streetcar line on Hazel since I have lived there, with the exception of Bradfield’s plumbing shop on Beech. I am three blocks from the railroad and more than that from the chute. I have rent-houses on Beech and Fourth Streets, and behind the rent-houses is a little store. There is no manufacturing plant north of Third Street, and has not been for 16 years. The onlv business house on Fourth Street is a small tire shop. Practically all the people own their own homes. You can hear the Powers plant two blocks and a half when the wind is against yon. You can smell the ammonia before you get to the ice plant. No new homes have been built in the vicinity lately, because there are no vacant lots. There are some vacant lots adjacent to the Catholic school, but they are not on the market. Powers plant is three and a half or four blocks from where I live. We sometimes hear the noise of ice plant and the trucks from Powers plant.”

E. Y. Olivette testified, in substance, that he had experienced disturbances from the Powers plant, had heard them load the trucks and men swearing, and, when the windows are open in summer, they heard the noise very plainly, and it disturbed them very much.

J. B. Booker testified that he lived in block 58 and had lived there for 33 years, and owned his home all that time. He is well acquainted in that community, and, with few exceptions, they all own their homes. Outside of the plumbing shop and little store on Pecan and Third and the barn or storage house built by Beasley on the north side of Third, there is nothing except this automobile ' shop referred to on Fourth Street, except residences. The only store in the vicinity now is a small one in front of the Bickley residence, and that is not large enough for a garage, and the man who owns it has a residence on the same lot. You can hear the noise from the Powers plant two or two and a half blocks away, and probably more than that. The operation of an ice plant, in my judgment, as proposed by Morgan, would materially annoy me and my family in our home, and I think we could not live there in any comfort, as we are only 150 feet from the plant. In summer it is necessary that we have our windows up, and from my house I can hear the noises of loading and unloading ice at the Powers plant. At night those noises are more perceptible than in the daytime. I know nothing of the Powers plant. I have brought no suit against the Powers ice plant. It is two blocks further off than the Morgan plant. I know it will be impossible for them to run it without noise. It is impossible for any machinery that I have ever heard, to run" "without noise. I own two houses there, and it is all the property I have in the world. ' I could not get a fair price for it. ‘ The property could not be devoted to any other purpose.

Chattie Casey lives across the street from Mr. Booker, and has lived there all her life. Her father is now ill. That in summer time they can hear the Powers plant from her house, and it was almost impossible to live there until last summer, when they muffled the noise, some. They don’t think they can live there with the Morgan ice plant running. In summer it disturbs them, because these noises begin about four or five o’clock, and there is no means of shutting them off from their house. The ice-wagons come around their place about five o’clock in the morning, and get started about four. They could hear the trucks loading every morning. It would be bad to live right close to an ice plant on account of the noises, not only from the machinery but also from the trucks and the men operating them.

Mrs. Katherine G-ray testified, in substance, she was the daughter of Mr. Faison (Booker), who is an engineer on the railroad, and sleeps in the daytime. When the wind is in the right direction they can hear, in the daytime, the Powers ice plant, and hear the trucks and the noise" of the people down there. From her experience with the other plant she doesn’t see how they could live there at all with the Morgan plant running.

Mrs. J. S. Kirby testified, in substance, that she lived in the home of J. G. Bickley, and in the early morning the noise from the Powers plant from their trucks and wagons disturbs them. She said, from her experience and observation, she thinks it would be impossible for them to stand the noise and racket in the early morning hours incident to the operation of the Morgan plant.

Basil Phillips testified, in substance, of living in Dallas, Texas, and said that his experience had been confined to Dallas and adjoining cities. That his experience is that the effect of manufacturing establishments being constructed in residential districts materially detracts from the property’s desirability in that particular section for residential purposes and materially damages the value of the property therefor. Has noted that the construction of ice plants in residential district's materially affected the value of the property for residential purposes. It reduced the place to a very undesirable section, and the houses were all turned into tenements and apartment sites, which did not bring the best of rent. He buys and sells property as a broker. If property is growing into a business section, then in the course of. time it would be valuable. In modern city building ice plants are called industries, and their location near residence districts, or retail business sections, is always avoided, and if this ice plant were erected in the vicinity of the business houses, in retail districts of the city, the business property adjoining would be depreciated by its erection. He knows nothing of local conditions in the city of Texarkana.

W. W. Eogers testified, in substance, that he had been in the.ice business as a manufacturer, and had kept up with the improvements in ice machinery. There is no such thing as an absolutely noiseless ice plant. There is always some noise attendant upon moving machinery, and, with the very latest machinery, you would have some noise. You have the clicking of the valves of the ice machines and hum of motors and noise of that character. It would be annoying to a person living within six feet of the plant. Ice plants are ordinarily located in industrial centers and not. in residential districts. However, in recent years, quite a number of ice plants have been built in residential districts of the city.

M. B. Morgan, for the defendant, testified as follows: That he was president of Morgan Utilities Company, and has been in the ice business for twenty years, having experience both practical and technical. The company owns 16 ice plants. Two in Little Rock, one at El Dorado, one at Conway, one at Jonesboro, and plants at other points in Texas. Two plants of the character of the one proposed here were constructed by them in Little Bock last year, but different building construction, one being at Sixth and Main, North Little Bock, and the other on the Nineteenth Street Pike, or Asher Avenue. The North Little Bock plant is completely surrounded by residences on the north, east and south sides, and the plant on the Nineteenth Street Pike is strictly in a residential district, with the exception of one store adjoining the plant. Have had no trouble in these communities. They consider the plant an asset. That they are erecting in Texarkana a raw water synchronous motor-driven ice plant, the latest thing in a motor-driven job. The ice crane as well as the hoist is motor driven. The loading of the ice will be done in a vault inside of the building, so as to avoid undue noise from that part of the job. Loading of the trucks will be done on the company’s property. The loading dock for retail trade will be in a 30-foot space at the back, housed and inclosed at both ends. The opening on the east side is principally left for putting in the machinery. The storage vault is on Third Street, without opening, the machinery being directly behind the vault. No window openings at the rear. The 32-foot space at the rear will be housed in with brick, and there will be 8-foot rolling doors through which the trucks will come in from the alley up to the dock, loading under cover approximately 150 feet from any house. The retail dock is seldom used after 8 o ’clock at night. The plans call for a flower garden in front of the building and flowers on the side. On the 'top of the building are the cooling spray pumps, instead of a cooling tower. The sprays will not be within 30 feet from the edge of the building on either side, and will be hid from the street; there will be no noise, grease, dirt or anything objectionable on the outside of the building, and the only thing one could hear ten feet away from the plant is the blower. There will be a scoring machine, which will be the next noisiest machine, located in a vault, and you cannot hear the noise from that. Wholesale deliveries are begun ordinarily in the morning at 5 o’clock. The drivers will be at the plant in time to serve the residents from 6:30 until noon. The wagons for the residential sections load about 6:30 in the morning, and 'the ones loading at five o ’clock serve the wholesale trade, such as restaurants, hotels, etc. The noise of trucks and drivers depends on the kind of employees, whether noisy men or good men. There is no reason why there should be unnecessary noise or confusion in loading the ice. It only takes about ten minutes to load an ordinary ice-truck at this particular plant. By the modern method there is little noise from the ice-can, and they are raised by an electrical device and that is practically noiseless in operation.- The only noise you can hear from the dumping of the ice is about equal to that of a man stepping on a hardwood floor. The ice falls from the can to the. floor.

Witness here introduced a picture of the ice plant at Little Rock, and also a picture of the plant at Breckenridge, Texas.

The Powers plant was a scrap or junk plant, which had been built for a gasoline engine and later changed to a motor plant. It is a belt-driven plant, which in itself is noisy. Little Rock, in the State Hospital for the Insane, has an ice plant, one in the insane asylum, the Confederate Home, the Runyan Hospital. In the insane asylum the plant is in the basement, in the others the plants are located in the building adjoining the patients’ rooms. Expect to operate the plant full 24 hours.

The blower is the noisiest thing in this plant. You can, of course, hear the compressor and the clicking of the valves as they seat themselves. The number of trucks used in the business will depend on the amount of the business. The retail trucks will come into the building probably fifteen minutes of six and the wholesale trucks will be there before five o’clock in the morning. If you were to drive by the plant at Sixth and Main in North Little Rock you couldn’t hear it running from the sidewalk. The same is true of the other two plants which we have recently put in. Near the plant at Sixth and Main there is an elevator, and half a block from the plant a lumber yard. There is nothing on the other side of the building. On the south side there, is a block of residences; west, a .lumber yard and elevator. The plant on Nineteenth Street Pike is about three miles from the main part of town. There is an ice plant of the Southern Ice & Utilities Company and a store within 100 feet of us on the pike. We are 6 or 8 blocks outside of the city limits. We sell the ice to retail trade, and do not deliver any at all. Ammonia fumes depend on the operators. The stuff being put in this plant will last a lifetime. If you have the inclosed type of compressors, you won’t' have the fumes. The scoring machine makes the noise of an ordinary buzz saw, but is inclosed in the ice vaults, and the noise from that would not penetrate outside. Got a permit for the plant from the city of Texarkana.

L. C. Lewis, a mechanical engineer, testified, in substance, he is familiar with the machinery proposed to be put in and has driven up in front of a similar plant in Little Bock and had to look inside to see if the plant was being operated. Eight feet from the door you can’t hear the plant being operated from the sidewalk. You can hear the hum of the motor and the machine turning over, which is not objectionable when you get 8 feet away. The pump makes no noise, but you might hear the swishing of the water four or five feet from it, but not outside the building. The plant is so constructed as that ammonia may be transferred from one part of the system to another so the fumes cannot escape to any great degree, even if a break occurs. All hotels have ammonia plants such as this. In the General Hospital at Little Bock they have an ice plant making a ton and a half a day, and the machinery is in the main building, the cooling system being on top of the one-story part, with the water running oyer breakers day and night, and patients’ rooms are above that. At the Hospital for Nervous Diseases the plant is installed thirty feet from the wall; and in St. Vincent’s Infirmary the machinery is in the same building, and they have no objectionable escape of ammonia. Powers’ plant is no plant at all, though he is now operating it with electricity. Southern Ice & Utilities Company is a steam plant, not modern. Everybody knows how much noise a truck makes. It depends on how they are equipped. At filling stations the cars drive in just about the same as in a place like this one.

Dan Dewberry testified, in substance, he has been in the real estate business in Texarkana for ten years.. The buildings erected on Third Street the last ten years have been business buildings, and no residences within that time, and considers Third Street the next business street. Third Street is rapidly growing into a business street. As to whether he would consider a filling station or garage an asset to a residence district, he said it would depend altogether upon the type of the filling station, and said that he would consider a high class one an asset.'

This action was begun in the chancery court to restrain the operation of an ice plant in the residential district in the city of Texarkana. The undisputed proof shows that the ice plant is located in a thickly populated section of the city; a section devoted to residences almost exclusively, and within six feet of the bedroom window of one of the plaintiffs. There is some conflict in the testimony as to the noise and fumes caused by the operation of a modern ice plant, but there is no dispute about the place being a residential district, and there is no dispute about its close proximity to some of the residences. It is .also undisputed that there will necessarily be some noise; that the loading and unloading and operation of the plant will create some noise, and many of the witnesses testify that it would greatly reduce the value of property, and some of them testify that it would be impossible to live in the homes they have occupied for many years if the ice plant is operated there.

The operation of an ice plant is a lawful business, and the only question here is whether, from the evidence in this particular case, the operation of said ice plant should be restrained, and a fair test, under the circumstances, as to whether its operation would constitute a nuisance is the reasonableness or unreasonableness of operating the ice plant in the particular locality and under the circumstances of this case. The locality is to he considered in determining- whether it is a nuisance, for what might be a nuisance in one locality might not he in another. Operating an ice plant might be perfectly proper in a business or manufacturing neighborhood, and a nuisance when carried on in a residential district. And it makes no difference how lawful a business may he -in itself, or how suitable the location may he, these things cannot authorize the carrying on of a business that directly, palpably and substantially injures another’s property or causes unnecessary annoyances to persons in the vicinity, especially when there is no showing that a suitable and convenient location might not be had in the city of Texarkana where there would be no injury done to residential property or to the residents. No definite rule can be given to govern all cases, but each case must depend on the particular circumstances which characterize it, and it is proper to consider the nature ' of the business, the kind of annoyance, the location, the surroundings, and all the attending circumstances.

In this case the proof shows not only that the operation of the ice plant would materially injure the property, but it also shows that the residents would be annoyed and suffer very great discomfort if the ice plant was permitted to operate at this place.

This court, in the case of Durfey v. Thalheimer, 85 Ark. 584, 109 S. W. 539, said:

“It is the duty of everyone to so use his property as not to injure that of another, and it matters not how well constructed or conducted a livery stable may be, it is nevertheless a nuisance if it is so built as to destroy the comfort of persons owning and occupying adjoining premises, creating annoyances which render life uncomfortable, and it may be abated as a nuisance. ’ ’

And it may be said here that it matters not how well constructed or conducted an ice plant may be, it is nevertheless a nuisance if built and operated in a residential district so that it destroys the comfort of persons owning and occupying adjoining premises, creating annoyances which render life uncomfortable. Certainly it cannot be said that the erection and operation of an ice plant within six feet of a bedroom window would not very greatly annoy the persons occupying the room, in addition to the fact, as shown by the proof in this case, that the property itself would be greatly damaged, worth much less than if the ice plant was not operated there.

Consideration of the testimony in this case leaves no escape from the conclusion that the operation of the ice plant in the residential district where located would not only injure the property but would be a serious annoyance to the residents in the locality.

This court, in deciding a case where the industry was established before the residences were built, said:

“The case affords, perhaps, an example where a business established at a place remote from population is gradually surrounded and becomes part of a populous center, so that a business which formerly was not an interference with the rights of others has become so by the encroachment of the population. Under these circumstances private rights must yield to the public good, and a court of equity will afford relief, even where a thing, originally harmless under certain circumstances, has become a nuisance under changed conditions.” Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S. W. 724.

If it is true that, where an industry is established at a place remote from population and is afterwards surrounded and becomes part of a populous center, the industry becomes*a nuisance so that it will be restrained by the court, certainly, when the place selected is in a residential district, and the persons proposing to establish the ice plant are notified before any material is placed on the ground, it is the duty of the court to prevent the nuisance, if the proof shows it to be such.

This court has also said:

“The maxim, ‘use your own property so as not to injure another,’ is peculiarly applicable in nuisance cases. If one does an act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s-property, it is a nuisance; for it is incumbent ón him to find some other place to do that act, where it will be less offensive. * * * That is a nuisance which, annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.- For such -annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and, when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance.” Yates v. Mo. Pac. Rd. Co., 168 Art. 170, 269 S. W. 353, 38 A. L. R. 1434.

The operation of this' ice plant in a residential district, under the proof in this case, would be a nuisance. The decree is therefore reversed, and the cause remanded with directions to enter a decree in favor of the appellants according to the prayer of the complaint, restraining the appellee from maintaining a nuisance.

Justices Kirby and McHaNey not participating.

Mr. Justice Smith dissenting.


source: Caselaw Access Project

author: Mehaeey, J.

license: Public Domain

text:
    Bright v. State.
    Opinion delivered May 9, 1927.
    1. Criminal law — collusiveness of verdict. — It is the province of the jury to weigh the testimony, and, when there is substantial evidence, the finding of the jury is. conclusive on appeal.
    2. Witnesses — cross-examination of witness. — In a liquor prosecution, the prosecuting attorney could cross-examine a witness, jointly indicted with defendant, as to statements made before the grand jury.
    3. Criminal law — questions not raised below.. — Where the appellant did not object to questions asked at- the trial, such ques- „ tions will not be considered on appeal.

      Appeal from Pnlasld Circuit Court, First Division; Abner McGehee, Judge;
    affirmed.

      M. E. Dunaway and John D. Shackleford, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Mehaeey, J.

Tlie appellant, Bob Bright, was indicted and convicted in the Pulaski Circuit Court of the crimes of manufacturing liquor, possessing a still, and manufacturing mash, and Ms punishment fixed at imprisonment in the State Penitentiary for-a period of one year in each case, the sentences to run concurrently. Defendant filed his motion for a new trial, which was overruled, and appeal prayed to this court and granted. Appellant was given 40 days in which to file his bill of exceptions.

Bob Brown, a witness for the State, testified in substance that he is a deputy sheriff of PulasM County,' has lived in Little Rock about 15 years, and has been deputy sheriff three years. That he had known the defendant about 25 years. Witness was formerly in the sawmill business, and defendant lives back of the old mill place. He knew him.long before he was a deputy. He found and destroyed a still out west of town a month or two ago. A deputy sheriff named Geyer was with bim at the time. Both were active deputies. They located the still between 8 and 9 miles west of Little Rock, on Rock Creek. They went out there about the 14th of October and found the still. They had information that the still was out there. It was in operation when they got there. Gene Yoque and the defendant were both standing in front of the still. He saw them when he was about 50 or 60 yards away, and watched them for a few minutes. Went up and told them not to run, hollered at them to stick up their hands, and Bright ran, and Yoque stopped. Bright got away. .

It was an 80-gallon copper still, full of mash. It was working and running off, and a fire was under it. That he didn’t know how much mash there was, but they had emptied two barrels of mash, in the still. The still would hold a barrel and a half of mash, but did not know how much was in the still. It was running and'cooking. They were using pine knots for fuel. The still was about three-quarters of a mile northwest of Bright’s house. That they watched them about ten minutes before they came up. They were both standing there, laughing and talking. No one else was there but those two. There is a road from Bright’s house to Bed Bank, which is a little more than a fourth of a mile from the still. There was a good spring at the still. There was a trail leading from Bed Bank where they drove the car up to the still. Defendant had a car, a little Ford truck. The road' crosses the creek, and there was evidence of car-tracks crossing- the creek and stopping. There was a regular turning-around place. The road went up to Bright’s house. Bed Bank is about half a mile from Bright’s house. Yoque lives about a mile and a half from the still and about three-quarters of a mile from Bright. Witnesses brought Yoque into town with them, and he was released on bond. They went next day to Bright’s house, and he ran from Brown when he- saw him. Went out the back way over the fence. Brown hollered to G-eyer to stop him, and he ran back north through the woods. They went over to Voque’s house to serve summons on him, and, while Geyer was in the house and witness was sitting in a car outside, Bright drove up in a car with Voque’s brother, and, when he saw witness, he jumped out of the car before it stopped, and ran.' They never arrested Bright. He afterwards came in and gave up. Bright’s house is the last house on the road to Bed Bank.

Witness testified that he was put on pay as a deputy when Mike Haynie went out. Before that he was in the timber business, but served as a deputy, and got paid once in a while. He served papers a time or two and several times on several occasions. He helped them make raids. The main thing he was interested in was the whiskey proposition. He is very antagonistic to it. He was interested in breaking- np the whiskey business. In the last three years he has probably made 40 or 50 raids. Had been on pay 35 days and has captured 10 stills and made 18 arrests. When he went out there he was looking for a still. They liad information there was one in that locality. They. got within about three-quarters of a mile of the still, and then walked the rest of the way. They first discovered the still about 60 yards away. That when he first saw it he did not know who was operating it. He got up about 20 or 30 steps and watched them, and hollered at them not to run. At that time they were not over 35 steps from them. Witness testified that this was not the first time Bright had run.away from him. He stated he never had anything against Bright and never had any trouble with him. Witness said that he knew Bright was guilty of some violation of the law. Witness knew it was Brig-ht. As long as he had known him he could not be mistaken. He did not shoot at him. He shot up in the air. He said that he could have hit him if he had wanted to. He saw Bright in the court room this morning, but did not point him out to Geyer. Voque ran only about ten feet from the still. Both started to run, and Voque stopped, and the other fellow did not stop.

Witness said he knew Voque, and was positive about it. Had known him ever since he was a kid. Never tried to arrest Voque before. Arrested his brother one time.

W. F. Geyer, another deputy sheriff, testified to substantially the same facts testified to by Brown. He stated that he did not know Bright’s name at the time, but knew that the defendant .was the man he saw at the still. This witness did not know Bright before, but saw him' once before when Bright ran for Voque’s house. When witness saw these men at the still he saw their faces; they turned and looked at the officers, and then started to fun.

Gene Voque, witness for the defendant, testified that he had known Bright all his life; that Brown and Geyer arrested him at the still. Witness is 22 years old, and lives with his father. The still is about two miles from his home. It was an 80-gallon copper still. They found him with 10 gallons of whiskey. Officers were about 20 or 25 yards away when they were first discovered. He knew Brown, but did not know the other fellow. When the fellow that was with Brown asked him who was with him, he told him Davis: He did not tell them it was Bright. He said it was Boy Davis with him.

This witness' testified that Bright was not there, and he was cross-examined at length by the prosecuting attorney and asked about his testimony before the grand jury. He admitted that he testified that he went over to the still and got caught, and told them he went over there to get a drink, and had nothing to do with the still. That he told them that to defend himself. That he also told the grand jury that he had told the officers it was Bright when they caught him. That he did not know why he did that. Testified that he did not tell the officers it was Bright when they came out, but he told the grand jury that he had told them that. That he told the officers when they arrested him that it was Davis. When he stated before the grand jury that he told the officers it was Bright he was excited and did not know what to tell them. That he did not tell the truth about it before the grand jury. That the still belonged to him and Davis. Witness did not know where Davis stayed in town. Had never asked him. After witness met Davis in town he always came out there. Davis was to furnish everything and give witness $3 a gallon for his part. That this is the first whiskey he had made on that place. That he and his brother lived together. That when he testified before the grand jury he was trying to protect himself, and he was now telling the truth.

Frank Doll testified that he had some work for appellant, and thought that witness was at his place in the morning. That appellant was there all .day the day he did the work. He was not there the next day. Could not remember when he had the work, whether it was Wednesday, Thursday, or Friday.

The appellant testified about where ho liyed; that he had lived there for six years; born and raised out in that country, and lived there all his life. Runs a milk dairy, sells a little wood; that he is buying his own home, and has a wife and nine children. The oldest is 17, and the others are younger. Has lived on the place he is now trying to buy about a year. Knows nothing about the still, and was not there when the officers arrested Yoque. That he was over on the Hot Springs road that day, getting his car fixed. Exhibits of bills for repairs showed that he was correct, and that he paid it on October 14. The first appellant knew about him being charged with it was when he saw it in the paper the day afterwards,’ and the day before he was at the garage all day having his car fixed. His wife asked the officers if they had a warrant, and he was figuring on coming to town to make his bond, because he did not want to be locked up in jail. That Brown had been gouging after him. Had him in court three or four times, telling what he was going to do to witness. Has known Brown 35 years. Brown told him some of the boys would fix him up for causing him to go four or five miles around with his logs. Had witness arrested two or three times, and testified against him. Had no idea how far the still was from his house. He figured it about a mile or a mile and a quarter where they said it was. He did not think there was any way to go to the still from his house. You could not go to Red Bank. They are going by his house every day to Red Bank. He never had any connection with Yoque in the whiskey business. Has known him 20 or 25 years. Witness and his wife run a dairy. Most of the time his wife brings the milk to town. Brown never caught him at the still. Never caught him close to the still. Never knew there was a still there. Walked up on the officers chopping up the still, and came back where Brown and two revenue officers were chopping up the still. Witness told them he was hunting coavs. He did not run then. That he was not the one that ran away. He was fishing, and the officers asked him to show them the way out of the woods, and he showed them. He was down there fishing at night. Was never convicted in Federal court. Pleaded guilty one time, and was fined $25 for possessing liquor. They did not stick him for selling liquor to a butcher. He did not sell it to him. When Brown and Geyer came next day the reason he ran he did not want to be locked up, but wanted to make bond. Did not aim to ¡be arrested. Does not know anything about Sexton coming: after him. Did not remember the date that he heard about the arrest of Yoque. Did not remember whether it was the day he had his car fixed or the day. before. Never saw Geyer before. Saw Brown point witness to Geyer in the court room this morning.

John M. Whitfield testified, in substance, as follows: That he knew the appellant well. They lived near each other, and he saw him every day. That appellant operated a dairy* and that he was a farmer, and bore a good reputation as a law-abiding citizen. That he had never heard of him operating a still or being connected with it.

The appellant contends, first, that the'testimony was not sufficient to sustain the verdict, and argues that the testimony of the character introduced should be weighed very carefully. This is true. It is, however, the province of the jury to weigh it, and, when there is substantial evidence, this court has many times held that the finding of facts by the jury is conclusive. We think there was sufficient evidence to sustain the verdict.

It is next contended by the appellant that it was error to permit the prosecuting attorney to examine a witness as to his testimony before the grand jury in a matter in which the witness' and the defendant on trial are jointly indicted. The questions asked the witness were with reference to statements made before the grand jury, and it is earnestly contended that the case ought to be reversed because the court permitted these questions to he asked. '

“The first assignment of error upon which the defendant relies for a reversal of the judgment is that the court erred in allowing the prosecuting attorney to read to Elton Holwell and Mrs. Sarah Hopper extracts from their testimony before the grand jury and ask each of them if he had not made such statements. The extracts from the testimony before the grand jury were read to the witnesses for the purpose of refreshing their memory, and each one stated that he had given the testimony before the grand jury as read to him. In making this contention counsel for the defendant relies upon the ease of Browne v. State, 168 Ark. 433, 270 S. W. 537. We do not think that case has -any application. There the witness denied that he had testified differently before the grand jury from the testimony being given by him at the trial. Therefore the court held that it was improper to admit the purported evidence of the witness before the grand jury for the purpose of impeaching him, without first proof that the testimony offered was the correct testimony of the witness before the grand jury. In the case before us each witness admitted that the extract of the testimony before the grand jury had been given by him before that body, and stated further that such testimony was true. Thus it will be seen that the testimony was admissible, either for the purpose of contradicting the testimony given by the witnesses at the trial or as substantive testimony given by them at the trial, after refreshing their memory from the testimony given by them before the grand jury.” Crafford v. State, 169 Ark. 225, 273 S. W. 13.

In the above case the witnesses were shown what was claimed to be their statements before the grand jury, and the contention was made that that was error. But in this case the prosecuting attorney simply questioned the witness about his statements before the grand jury, and the witness answered all the questions, telling how he testified and giving his reasons for it. It was a proper cross-examination of the witness.

The appellant next argues that it was error to ask defendant certain questions, hut he does not seem to have objected to these questions when asked. Appellant, in his motion for new trial, objects to two instructions, one on the question of reasonable doubt, and the other as to what constitutes possession of a still. Bach of these instructions has been approved many times by this court, and there was no error in giving them. There was sufficient testimony to require the submission of the case to the jury, and the jury’s finding is conclusive. The judgment is therefore affirmed.


author: McHaNey, J.

text:
    Layne-Arkansas Company v. Seeman.
    Opinion delivered May 9, 1927.
    1. Sales — defective material for repairing. — Where the buyer of a pump himself furnished the material which was used to make the seal, he could not recover from the seller for damage to his rice crop, resulting from insufficiency of water supply, on the ground that the material used in making the seal was defective.
    2. Sales — duty to minimize damages. — Where the seller of a pump for water for a- rice crop refused or neglected to repair it as required by its contract, the buyer was bound,to have the repairs made by others in order to minimize the damage to his crop.
    3. Sales — damages for delay of maxing repairs. — The seller of a water pump who agreed to keep it in repair was not liable for damages to the buyer’s rice crop, resulting from the seller’s delay in repairing the pump where the buyer did not give any notice to the seller that he would suffer special damages from delay, if such damages were not within the contemplation of the parties.
    4. Sales — damages recoverable under contract. — Under a contract for the sale and installation of a water pump and motor, providing that any material proving defective would be replaced, and that no claim for labor or damages would be allowed,. the buyer could not recover damages for delay in repairing the pump resulting in injury to the rice crop.

      Appeal from Arkansas Circuit Court, Northern District; George W. Glarh, Judge;
    reversed.

      A. G. Meehan and John W. Moncrief, for appellant.

      Joe Morrison and George C. Leiois,. for appellee.
   McHaNey, J.

This is an action to recover special damages for the alleged breach of a contract for the sale and installation by appellant of a pump and motor to operate on the rice farm of appellee. The written contract is as follows:

“Layne-Arkansas Company

Irrigation Well Contractors Irrigation Supplies

State Agents Bessemer Crude Oil Engines

Stuttgart, Arkansas.

We guar antee Water or no Pay.

A duplicate in all cases to be retained by the customer.

“All orders accepted by us subject to delay in fulfillment on account of strikes, unavoidable accidents, or' other causes beyond our control. Any material proving defective when used for the purpose specified will be replaced during the pumping season of 1925, but no claim for labor or damáges will be allowed. All contracts and deliveries are subject to the acts of the Government in times of war or national emergency, or other causes beyond our control.

“Date 3/27/1925.

“Layne-Arkansas Company:

“Please ship me ct.

“One type LC-15-in. 4 stage Layne pump bowls

“One 30 HP. Westinghouse motor 3 phase

“220 volt-1160 B..P.M. 40° set and wired in and hand starter

“For which I will pay the net price of fifteen hundred sixty-eight 28/100 ($1,568 28/100) dollars.

“The terms of payment being 1/3 cash with order, 1/3 cash when set, cash and title-retaining note due 12-1-25 for remaining 1/3 all note to bear interest from date of invoice at rate of 8 per cent, per annum.

“Agreements regarding delivery and erection.

“I agree to.:.Layne-Arkansas Company agrees to set pump in well, motor set and wired and guaranteed- pump to show an efficiency of 60 per cent, or better and meet condition of the Ark. Light & Power Co.

“This order.contains all agreements concerning this sale.

“The express conditions of sale and purchase of the property for which the contract is given is such that the title, ownership and right of possession does not pass from the said Layne-Arkansas Company until the note or notes or any account that is given or made in connection with such machinery as described herein to said Layne-Arkansas Company are paid in full.

“Signed O. E. Seeman.

‘ ‘ Signed Fred T. Thayer, salesman.

“Notice to customers — Read this carefully, as this is the complete understanding regarding this order, and no verbal representations not written here are binding on either party.”

Thereafter, in accordance with said contract, appellant installed said pump and motor, appellee paying for same in accordance with said contract, $500 with the order, $500 on the 8th day of June, 1925, the day said pump was installed, and executed on said date his note for the balance in the sum of $568.20 due December 1, 1925, .with interest from date at 8 per cent. per. annum. A necessary part of the pump is a seal, the installation of which is said to be sealing the pump. This is done by fastening a joint in the piping 'through which the pump brings the water, and consists of coarse sacking which goes down inside the joint upon which it rests, by means of which a vacuum is created. If the pump is not properly sealed it will leak air and thereby reduce the quantity of water. The seal in this case was made by appellant from old sacking material furnished by the appellee, who testified that he was present when the seal was installed, and that he is familiar with the purpose of a seal, knows the importance of it, and knew what the effect of a defective seal would be, but did not know whether the seals are guaranteed or not. The pump was properly installed, and, when started up, it furnished an ample supply of water. But, after a few days operation the output was decreased, and appellee says that he advised an officer of appellant concerning the falling-off of the supply of water, and that such officer promised to attend to it, hut did not do so. On the 26th day of June, appellee had the Arkansas Light & Power Company make a test, as provided in the contract, and found that it was delivering about 30 per cent, efficiency instead of 60 per cent, as provided in the contract. He then notified appellant’s manager at Stuttgart, Mr. Woodburn, on the 27th day of June, of the test made, and Mr. Woodburn sent a crew out at once and fixed -the well up, put on a new seal without making any charge therefor, and that the pump has been working satisfactorily ever since. He thereafter, on the 28th day of January, 1926, brought suit against appellant for damages which he claimed he suffered by reason of the diminished production of his rice crop on account of the insufficient water supply for about two weeks, from the 14th to the 29th days of June, based on the alleged negligence of appellant in the installation of a seal when the pump was originally installed. Appellant demurred to the complaint, and, it being overruled, answered, denying the allegations of negligence and loss, and filed a cross-complaint on the above-mentioned note, - asking judgment against appellee for the amount of the note and interest.

The case was tried by a jury, which resulted in a verdict and judgment agáinst appellant in the sum of $1,200 less the unpaid note and interest, amounting at that time to $598.37, or a judgment over in the sum of $601.63. Prom the judgment against it the appellant has appealed.

At the conclusion of the testimony appellant requested the court to instruct the jury peremptorily in its favor, both on the complaint and cross-complaint, which the court refused to do, and this assignment of error is brought forward in the motion for a new trial. Inasmuch as we are of the opinion that this assignment of error is well taken, it becomes unnecessary to discuss the other questions raised in the briefs. By the terms of the contract above set out, appellant agreed that “any material proving defective when used for the purpose specified will be replaced during the pumping season of 1925, but no claim for labor or damages will be allowed.” The contract further contains this provision: “Layne-Arkansas Company agree to set pump in well, motor set and wired, and guarantee pump to show' an efficiency of 60 per cent, or better and meet condition of the Ark. Light & Power Co.” This action is based on a breach of the contract in that the material proved defective. The only material which proved defective was material furnished by appellee himself for the making of the seal, but he says he was present at the time and advised the employees of appellant that they were cutting the seal too small. The evidence conclusively shows, in fact it is undisputed, that a rice man of any experience will know immediately when the seal on a pump is taking air; that there are several tests by which this can be determined, one being by the bubbles of air in the water. Another is that, by throwing a shovelfull of dirt in the well, if the seal is leaking, muddy water will come back through the pump. It is undisputed that appellee is an experienced rice farmer, having been engaged in that business for many' years, and testified himself that he was familiar with the seals on pumps, their purpose, importance, and the effect of a defective seal. Therefore, by the exercise of ordinary diligence, he could and must have known that the seal on his pump was leaking air. When • he advised appellant that his water supply was diminished, instead of having a test made by the Arkansas Light & Power Company to determine whether the efficiency of the pump was 60 per cent, or better, and instead of telling them that there was a leak in the seal, he simply told them that he was not getting enough water. He does not contend that he gave them any notice at that time that his rice crop would' he damaged unless the supply was increased, nor did he advise them that he would suffer special damages if immediate attention was not given it. He says Mr. Thayer, officer of appellant, told him the water level was low in all wells on account of the extreme dry weather in 1925, hut appellee did not tell Mr. Thayer that the seal was defective. Shortly after this he had the test made, in accordance with the contract, and agrees that appellant immediately repaired, same at its own expense, and that he thereafter had no trouble with said pump. Moreover, the undisputed evidence shows that it would not have cost exceeding $80 to have" pulled the pump and had same repaired. There were a number of competent people available to appel-lee for this purpose. It was his duty, if appellant had refused or neglected to repair the pump, to have engaged others to do so and thereby prevent or minimize damage he might sustain to his rice crop. As was said in the case of Johnson v. Inman, 134 Ark. 345-349, 203 S. W. 836:

“Unless the repairs required of appellant under the contract were extensive and costly in comparison with his rents, it was the duty of appellee to make them and prevent or reduce the damage under the rule announced in the case of Young v. Berman, supra.” The rule in that case, quoting from the syllabus, is as follows:

“A party injured by a breach of contract must make reasonable effort to prevent or reduce the damages; and where he can, by reasonable exertion or expense, arrest" the loss caused by such breach, the measure of damages is the amount of such expense.”

In Selig v. Botts, 128 Ark. 167, 193 S. W. 534, the court, in the opinion on rehearing, on page 172, used this language:

“We take occasion to say that the court properly refused to allow appellee to prove damages alleged to have been sustained to his rice crop as being indirect, and not within the contemplation of the parties nnder the terms of the contract.”

This case was tried, as was the case of Johnson v. Inman, supra, on the theory that appellant breached the covenant for repairs, and that, without any effort on his part to make the necessary repairs, he was entitled to recover the difference between the value of the rice crop he raised and the value of the rice crop he might have raised but for the breach, and in that case this court said:

“The element of doubt is inherent in future profits in almost any character of business, and, on that account, courts are slow to adopt the profit rule as a measure of damages on account of contractual breaches, and will never do so if a more certain and definite rule can be fixed, and in no event will allow purely speculative damages. This court is committed to the doctrine that only compensatory damages will be allowed, and that one injured by the breach of a contract must prevent or reduce the damages by the exercise of reasonable effort or the expenditure of reasonable sums.”

The facts in this case are entirely different from those in Harrington v. Blohm, 136 Ark. 231, 206 S. W. 316, where the. contract provided that Harrington should dig a well and install a pumping machine by June 1, and, on account of his failure to do so, he was held liable for the damages to the rice crop caused by his failure so to do. But in this case the pump was properly installed within the time agreed upon, and this action arises out of the alleged negligence in failing to repair, where the clause in the contract, with reference to such repairs, specifically provides that “no claim for labor or damages will be allowed.” This case also differs from the case of Beeble v. Arkansas Light & Power Co., 172 Ark. 262, 287 S. W. 766, in which the alleged breach of contract was failure to furnish a motor of sufficient horse-power to pump necessary water to irrigate a 120-acre tract of growing rice. But in this case the contract is wholly different, as heretofore explained. The only guarantee appellant made was that it should test out 60 per cent, efficient, and that, if any repairs were needed during the pumping season in 1925, it would make them, which it did immediately after being informed of the failure of the pump to meet the test agreed upon. There is therefore no evidence in the record to justify the submission of this case to the jury, and the judgment against appellant will therefore be reversed, and appellee’s cause of action dismissed.

On the cross-complaint there is no dispute about the amount due on the note which remains unpaid, and judgment will be entered here for the amount of the note and accrued interest. It is so ordered.


author: McHaNey,. J.

text:
    Cotner v. Allinder.
    Opinion delivered May 9, 1927.
    Wills — pee simple INTEREST. — Under a will authorizing defendant’s wife, as executrix, to sell all testator’s realty to liquidate all his debts, and to retain the balance arising from said sale for her own benefit, held that the executrix had absolute power to convey the fee in the whole and to retain any balance arising from said sale for her own benefit after discharging the testator’s debts.
    Appeal from Logan Chancery Court, Southern District; J. V. Bourlcmd, Chancellor;
    affirmed.

      Kincannon & Kincanon, for appellant.

      Evans & Evans, for appellee.
   McHaNey,. J.

Appellants are the children and grandchildren of a former wife, and appellee is the widow ■ of J. C. Cotner, who died testate in the Southern District of Logan County on November 15, 1920. The pertinent parts of his will, which was duly probated, are as follows:

“First. I hereby constitute and appoint my wife, Ethel Cotner, to be the sole • executrix of my last will, directing my said executrix to pay all my just debts and funeral expenses, and the legacies hereinafter given out of my estate.

“Fourth. I devise to my said executrix all my real estate, with remainder thereof, on her decease, to my said children and their heirs, respectively, share and share alike, excepting as follows, in fifth of this will.

“Fifth. I direct my said executrix to sell any and all of my realty, so far as the settlement of my mortgage debts demand, and with the funds of said sale liquidate all liens against said realty. Should my executrix choose to sell all my realty, then I direct her to liquidate all my debts and retain any balance arising from the said sale for her own benefit. The sale of my realty and settlement of my debts shall be left wholly to the direction of my said executrix. ’ ’

At the time of his death the testator owned about 240 acres of land and five or six lots in the town of Boonevüle, and on the acreage there was a mortgage indebtedness of approximately $4,000. This was substantially all the property owned by him. The widow, appellee, with her own funds paid off and satisfied this indebtedness. In December, 1924, she entered into a written contract with L. P. Hewett for the sale of the acreage for $4,000, and tendered him a deed therefor. He declined to accept said deed and pay for said land, on the ground that, under the above provisions of the will of J. C. Cotner, the appellants were claiming some interest in said land, and that she acquired only a life estate in the remainder of said property after the payment of the debts. She thereupon instituted this action against Hewett for specific performance and against the appellants for a construction of the will. The court decreed title in fee simple in appellee and specific performance against Hewett, from which comes this appeal.

The validity of the will is not questioned. In the language of counsel for appellant, “there is only one question involved: what interest have the appellants and the appellee in the lands'in controversy?” The chancellor answered this question for appellants by holding they had no interest therein. We agree that this decision is correct. The “fifth” paragraph above quoted gives appellee the absolute.power to sell the whole of said real estate, provided she paid all the testator’s debts. If she did this, and there is no contention to the contrary, then she had absolute power of sale to convey the fee in the whole and “retain any balance arising from the said sale for her own benefit.” The “fourth” paragraph is entirely dependent upon the fifth.

This'case is ruled by the decisions of this court in Archer v. Palmer, 112 Ark. 527, 167 S. W. 99; Thurman v. Symonds, 126 Ark. 216, 190 S. W. 106; and Union & Merc. Trust Co. v. Hudson, 143 Ark. 519, 220 S. W. 820. Appellants rely upon Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846, hut, as said in Union & Merc. Trust Co. v. Hudson, supra, “the case of Patty v. Goolsby, 51 Ark. 61, 9 S. W. 846, and Douglass v. Sharp, 52 Ark. 113, 12 S. W. 202, relied upon by counsel for defendant, are not applicable. There is nothing in either case to indicate that the testator intended to give the life tenant the absolute power to dispose of the fee in the estate. Such intention is clearly indicated by the unrestricted power of disposal expressly granted by the second clause of the will under consideration, and this view is materially strengthened when we consider the language in the first part of - the third clause.”

We do not deem it necessary to review these cases, showing their applicability to this case, as a careful consideration of them leads inevitably to the conclusion that they are decisive of this case. The decree is therefore affirmed.


text:
    Spears v. State.
    Opinion delivered May 9, 1927.
    1. Indictment and information — duplicity.—An indictment charging defendant with fraudulently entering on his employer’s time-book the names of four persons not in the company’s employ does not charge four separate offenses, hut the commission of the crime of false pretense through each of the parties.
    2. False pretenses — designation of party injured. — The use of the hyphen in place of the in employer’s name in the indictment of a foreman for false pretenses, ,by designating the party defrauded as the “Wisconsin-Arkansas Lumber Company,” instead of the “Wisconsin & Arkansas Lumber Company,” held not a fatal defect, under Crawford & Moses’ Dig., § 3014, providing that no indictment is insufficient for a defect not affecting the substantial rights.
    3. False pretenses — error in designation op party defrauded.— Omission of the word “Ai'kansas” from Wisconsin»-Arkansas Lumber Company in one of several designations of -the party defrauded, in an indictment' of a foreman for false pretenses held immaterial, under Crawford & Moses’ Dig., § 3014, providing that no indictment is insufficient for error not affecting substantial rights.
    4. False pretenses — sufficiency of evidence. — Evidence in a prosecution for false pretenses held sufficient to take the case to the jury.
    5. Criminal law — -jury question. — Where there is any substantial evidence tending to show guilt of the accused, it is a question, for the jury, and not for the court, to determine the matter of his guilt.
    6. False pretenses — description of money. — On an indictment of a servant for false pretenses charging that he caused his employer to pay to him $300 “lawful money of the United States,” it was unnecessary to prove whether the money was gold, silver or paper.
    7. Criminal law — evidence of fraud. — On an indictment of a fore- ■ man for false pretenses in entering on the timebook names of four persons who were not employees, testimony of one not named in the indictment, that he had worked for accused, but had received his pay from accused’s employer, tending to prove a general scheme to defraud, held admissible.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      D. I). Glover, for appellant.

      H. W. Applegate, Attorney General, and Darden ■ Moose, Assistant, for.appellee.
   McHaNey, J.

Appellant was indicted, tried, convicted, and sentenced to one year in the penitentiary on a charge of false pretenses, and from the judgment against him he has appealed to this court.

He. has urged for our consideration four errors of the trial court, which are properly set up in the motion for a new trial, which was overruled. The first is that the court erred in overruling his demurrer to the indictment. The first ground of demurrer is that the indictment charged four separate specific offenses, in that it charged that he, as foreman of the Wisconsin-Arkansas Lumber Company, fraudulently entered on his timebook that “Joe Morgan, Sam Wiggins, Robert Haymon and Rufus Williams were in the employ of said Wisconsin-Arkansas Lumber Company, and were entitled to their pay from said company, when in truth and in fact” they were not in the employ of the said company, and not entitled to he paid by it. This assignment of error is not well taken, for the reason that it does not charge four separate offenses,, hut charges the commission of the crime of false pretense through each of these parties. A conviction could have been had by proof of the offense through either one or all of said parties, but there could have been only one conviction, even though there had been sufficient proof to establish guilt as to each. Separate indictments might have been had as to each, but the pleader chose to put them in one case, and appellant cannot complain.

The next ground of demurrer was that the indictment alleged the name of the company to be the Wisconsin-Arkansas Lumber Company, whereas the true name of said company is the Wisconsin & Arkansas Lumber Company. While this is true, it was simply an error that could not in any way have prejudiced appellant’s rights. He had for many years been in the employ of the Wisconsin & Arkansas Lumber Company, and knew what company he was charged with defrauding. Section 3014 of C. & M. Digest provides: “No indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.” The indictment several times uses the name of the company as above stated, and concludes by the statement that the false pretenses were made “with the unlawful and felonious intent to then and there cheat and defraud the Wisconsin-Lumber Company,” leaving out the word “Arkansas” as it had theretofore been used in the indictment. It is manifest that the omission of the word “Arkansas” after the hyphen was a mere clerical error, and that the failure of the scrivener to put it in the indictment could not possibly work to the prejudice of appellant’s rights. In Hyde & Smith v. State, 168 Ark. 580, 271 S. W. 330, on an indictment for robbery, the indictment left out the word “did” in the clause alleging that, “by force and. intimidation, did take from the person of Sam Blevins,” etc. The word “did” as above used was omitted and assigned as error. This court said:

“The omission of words in an indictment which would not mislead the accused as to the nature and character of the charge will not vitiate an indictment, as such omissions do not prejudice his substantial rights.” Citing State v. Ward, 48 Ark. 36, 2 S. W. 191, 3 Am. St. Rep. 213; Rinehart v. State, 160 Ark. 129, 254 S. W. 351; Jackson v. State, 160 Ark. 198, 254 S. W. 531

The second ground urged for reversal of this case is that the evidence is not sufficient to sustain the verdict. After a careful consideration of the evidence we must overrule appellant on this point. However, we deem it proper to say that there is no evidence in the record sufficient to support a conviction on the charge in connection with Joe Morgan or Sam Wiggins, but as to the charge in connection with Rufus Williams and Robert Haymon there is a dispute in the testimony, and, while the testimony is quite meager, we think it was sufficient to go to the jury. Robert Haymon testified that he worked for Mr. Spears at his house and at the farm; that Mr. Spears told him that he wanted him to work for him at the house and the farm, and would allow him straight time, at the mill, and that he drew his money at the mill. The time-book of appellant showed that he worked for the mill regularly through January to the last of July, in 1925, and the witness testified that he did not think he worked at the mill in 1925, but, on cross-examination, be may have virtually destroyed the effect of bis testimony, but this was a question for the jury.

Andrew Holman testified that be, at the direction of the appellant, cashed a number of identification slips for Rufus Williams, given to him by the appellant, and took the money back to the appellant. Appellant denies this. The same witness testified that appellant wanted him to swear that he knew Rufus Williams, and that he boarded at the witness’ house; said appellant told him he would give him $50 if he would say that, and that, if the witness did not swear that he gave the money that he got on the identity slips to Rufus Williams, appellant would blow his head off. This conversation is not denied by appellant.

Another witness, S. R. Nolan, was permitted to testify, over appellant’s objection, that he had worked for appellant and had received his pay from the mill. This evidence was permitted by the court, for the reason that it tended to show a scheme on the part of the appellant to defraud the lumber company in this manner, and it was competent for this purpose.

The only other evidence in the record of any substantial value against appellant was his own letter written to Mr. A. B. Cook, manager for the lumber company, after he had been discharged, which letter reads as follows :

“ Malvern, Arkansas.

“Mr. A. B. Cook,

Malvern, Arkansas.

“Dear Mr. Cook: I ani urging and begging on behalf of my family that we settle the matter that we discussed yesterday without any process of law. There never was a little woman who has worked harder in order that we might have a happy home, and we are working together to give all of our six children an- education, and if this matter is carried into court we will be ruined and our hopes will be destroyed.

“As I stated yesterday, I have no money. I owe $1,100 on this place and $1,000 on the property in town and $3,300 on the bottom farm. I have placed that property in town on the market, but as yet have had no bids on it. I will be willing to give this company a second mortgage on this place, or the'one in town preferably, and when it sells you will get your part.

“Mr. Cook, I know you feel that I have not acted square, and perhaps feel that I should be prosecuted, but please let this be the one time that you let mercy for a little woman and six children have the right-of-way in your decision in this matter, and I assure you that I will always be a friend of the company’s as I am now.

“You have in your power to prosecute or prevent me from getting another place of employment, but I sincerely hope in all earnestness that you will at this time show mercy and be willing to settle this out of court.

“Yours very truly,

“Grover C. Spears.”

This evidence was sufficient to take the case to the jury, under the rule of this court that, where there is any substantial evidence tending to show the guilt of the accused, it is a-question for the jury and not the court to determine the matter of his guilt.

Appellant urges, under this assignment also, that the-indictment charges that, as a result of the false pretenses alleged, he caused the lumber company to pay to appellant more than $300 “lawful money of the United States,” and that there is no proof that the money so paid was of the character alleged. While it is tru'e that there is no proof of the kind of money, whether gold, silver or paper money, and while there are some decisions of this court apparently sustaining appellant’s contention (Value v. State, 84 Ark. 286, 105 S. W. 361, 13 Ann. Cas. 308; Marshall v. State, 74 Ark. 415, 75 S. W. 584; Silvie v. State, 117 Ark. 108, 173 S. W. 857, yet the trend and substantial holding of the later decisions of this court are against appellant’s contention. Cook v. State, 130 Ark. 90, 196 S. W. 922, where the court defines the word “dollars” as the money unit of the United States, and further states that “if any word has a settled meaning at law and in the courts, it is this. It can only mean the legal currency of the United States, not dollars invested in lands or stocks,”'and the charge in this indictment is that the lumber company was defrauded out of more than $300. To the same general effect see Kent v. State, 143 Ark. 439, 220 S. W. 814; Hall v. State, 161 Ark. 453, 257 S. W. 61.

The next assignment of error relates to the admission of the testimony of S. R. Nolan, which has already been mentioned. It was objected to on the ground that he was not charged in the indictment with having defrauded the company through Nolan, but, as we have already stated, it was admitted on the theory that it tended to show a general scheme on the part of appellant to defraud the lumber company, or show design, intention and knowledge, and was admissible for this purpose. Norris v. State, 170 Ark. 484, 280 S. W. 398.

It is finally insisted that the court erred in giving and in refusing to give certain instructions. We have examined these assignments carefully, and have reached the conclusion that the court fully and fairly submitted this case to the jury on correct and proper instructions. No useful purpose could be served by setting them out and arguing them, as it would unduly extend this opinion.

We find no error, and the judgment is accordingly affirmed.


author: Hart, C. J.,

text:
    Scott v. Magazine Special School District No. 15.
    Opinion delivered May 16, 1927.
    1. Schools and school districts — authority of directors. — Directors of a school district possess such power only as is conferred on them by a statute, either in express terms or by necessary implication.
    2. Schools and school districts — authority of school directors to sell property. — Where the sale of school property is within the scope of the powers of school directors as described by Crawford & Moses’ Dig., §§ 8942, 8972, they are the exclusive judges of the necessity of making- the sale and the application of the proceeds.
    3. Schools and school districts — authority of directors. — Under Crawford & Moses’ Dig., §§ 8942, 8972, relating to the authority of school directors selling property belonging to the district, the sale of school property partially in consideration of an agreement that the purchasers would maintain a school and receive pupils sent by directors of school districts is authorized, since the statute expressly authorized directors to make sales, and the purchaser is not concerned with the application of the proceeds nor responsible for the directors’ action in that respect.
    Appeal from Logan Chancery Court, Southern District; J. V. Bourland, Chancellor;
    reversed.
    STATEMENT OP PACTS.
    Magazine Special School District No. 15 and the directors thereof brought this suit in equity against C. E. Scott, A. P. Blaylock and E. M. Bartlett, to cancel and set aside a deed executed by the school district to them for certain school property and to enjoin said defendants from in any way interfering with their plans in conducting the school in said district. Scott had instituted an action in the circuit court against said school district and the directors thereof for damages for breaqh of contract conveying him the property involved in the chancery suit. The suit for damages in the circuit court was transferred to equity and consolidated with the suit in the chancery court to cancel the deed to said property. The chancery suit was defended on the ground that the defendants had acquired title to the property under a valid contract, which was binding upon the school district.
    The record shows that the directors of said school district first entered into a written agreement with C. E. Scott, A. P. Blaylock and E. M. Bartlett to convey them the building and campus known as the Magazine Academy, for the consideration that said parties should maintain a school for five years and receive pupils which should he sent them from the public schools, at a stipulated sum. Pursuant to the provisions of this contract, on the 14th day of March, 1922, the directors of said special school district executed a deed to Charles E. Scott, ’A. P. Blaylock and E. M. Bartlett to blocks 36 and 37 in the town of Magazine, Logan County, Arkansas. The schoolhouse referred to in the written contract is situated on these blocks of ground. The deed recites a consideration of $1,600, and, in addition, the following: “A further agreement is made that Chas. E. Scott, E. M. Bartlett and A. P. Blaylock are to maintain a school for a period of five years. If, in the event they fail to maintain the school for a period of five years, the property reverts hack to the district. It is agreed that the property is to always remain for school use, but at the end of five years the sale title will be in Chas. E. Scott, E. M. Bartlett and A. P. Blaylock.”
    The $1,600 was paid by private subscription given to Scott and his associates. It was the purpose of the directors to maintain a school whereby pupils who could not be taught the high school branches in the public schools, on account of a shortage in the public school funds, might receive such instruction from Scott and his associates. The money received as the purchase price of the school property was used by the directors in the payment of whatever school warrants were presented. In other words, the money was deposited with the common school funds of the district and used by them indiscriminately to pay warrants for the payment of teachers and other indebtedness against the district. Scott and his associates made several improvements upon the school building, and received pupils sent to them by the directors of the school district, as agreed upon.
    The chancery court found the issues in favor of the school district, and canceled and set aside the deed to the defendants to said property. A perpetual injunction was granted against Scott and his associates, restraining them from in any way interfering with the school district in the management and control of the property. The case is here on appeal.

      U. G. May and Hill S Fitzhugh, for appellant.

      Kincannon & Kincannon and Evans $ Evans, for appellee.
   Hart, C. J.,

(after stating the facts). The record shows'that the action at law for damages was begun by Scott on the 9th day of September, 1925. The chancery suit was begun by the directors of the district against Scott and his associates on the 12th day of September,. 1925. The matters which caused the differences between the school directors and Scott and his associates are not deemed pertinent by us to thd legal questions raised by the pleadings, and we have omitted any reference to them.

The principal issue raised by - the pleadings . ánd proof is whether or not the school directors have power to sell property which they deem no longer necessary for the district to hold for school purposes; In this connection it may be stated that it is well settled that the directors, of a school district possess only such power as is conferred upon them by statute, either in express terms or by necessary implication. Therefore their power in respect to selling or otherwise disposing of the public school buildings of the district must be sought from the statute.

Section 8972 of Crawford & Moses’ Digest provides that the title of all real estate belonging, for school purposes, to any city or town organized as a separate school district, shall vest in said city or town as a school district and shall he under the management and control of the board of school directors.

Section 8942, in defining the powers, in general, of the board of directors, gives them, when, in the opinion of a majority of the members of the board, the best interests of the district demand a sale or exchange of any real estate or schoolhouse site belonging to' the district, the express authority to sell or exchange the same and the power to-execute a deed to the purchaser.

We all agree that, under this section of the statute, the directors of the school district would have a right to sell the schoolhouse for a money consideration, and that the purchaser would not have to look to the application of the proceeds of sale and see to it that the directors applied'the purchase money to a legal school purpose. The authorities generally establish the proposition that, when an act is within the scope of the corporate powers of the school directors, they are the exclusive judges of the necessity of making the sale and the application of the proceeds. The directors may err in their judgment, hut an abuse of power by them cannot take away express authority conferred by statute. Therefore we could not take into consideration whether the contract was beneficial or judicious in the absence of a showing of fraud in the making of it. These were questions for the consideration of the directors, to be determined by them, according to their best judgment in the premises. The directors had the power to sell the schoolhouse and to determine the best means of doing it. The purchaser has nothing to do with the determination of the directors in selling the property, and is not responsible for their action. He is only required to pay the purchase price as agreed upon. If there was nothing- in the case except a money consideration and an allegation and proof of the misapplication of the proceeds of sale by the directors, we would all agree to a reversal of the judgment under the principles of law above announced. In short, if the sale is within the scope of the powers of the board of directors, they are the proper judges of the necessity of selling the property, and it would not be competent in this suit to inquire whether or not their discretion in the premises had been abused.

Justices Kieby, Mehaeey and I think the deed under consideration has one clause which is contractual in its nature and which renders the contract of sale and the deed based on it illegal. Our statement of facts shows that, as a part of the consideration, Scott and his associates agreed to maintain a school for a period of five years, and, in case they failed to do so, the property should revert to the district. It also provides that the property is always to remain for school use, but, at the end of five years, the title will be in Scott and his associates. When this clause of the deed is considered in connection with the written contract of sale, it seems that the purpose of making the sale was to enable Scott and his associates to operate a private school and to receive certain pupils sent to them by the board of directors at a stipulated price. We believe that this was contrary to the spirit, if not the letter, of art. 14, § 2, of our Constitution, which provides that: “No money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.” The substance of the transaction in question was that the board of directors sold the schoolhouse to Scott and his associates for a sum of money, and the further consideration that Scott and his associates should operate a private school for the benefit of the school district, which agreement, we think,- renders the whole transaction illegal. In short, we believe that the directors of the public school district, and they alone, had a right to provide for the operation of public schools, and they must do this in a manner provided by statute.

As above stated, however, a' majority of the court, think- that, the right of selling the schoolhouse being expressly conferred by statute, upon the board of directors, it had the right to sell, and the purchaser was not concerned with the application of the proceeds of sale and was not in any wise responsible for the action of the directors in that respect.

There is no pretense of any fraud in the sale, and the majority of the court, as above stated, think that the wisdom or expediency of the sale has been left by statute to the directors of the district, and that the purchasers have no concern whatever with what was done with the proceeds of the sale or what consideration prompted the directors to make the sale. They were the judges of whether it was necessary to sell the property, and their action is conclusive, in absence»of fraud between the contracting parties. Therefore the decree will be, reversed, and the cause will be remanded with directions to dismiss the complaint of the special school district and the directors thereof for want of. equity. It is so ordered.