text:
    Dickson v. Board of Directors of Long Prairie Levee District.
    Opinion delivered December 5, 1921.
    1. Eminent domain — condemnation for levee purposes. — Where, alter condemning certain land for levee purposes, the levee board decided to change the location of the levee and to appropriate other land for that purpose, it was necessary that the new location be condemned, and that compensation therefor be made to the owner.
    2. Courts — construction of opinions. — The language) of a decision is always to be understood by applying it to the facts of the case and construing it with reference thereto.
    3. Appeal and error — construction of former opinion. — A decision on a former appeal, in an action by a levee district to restrain a landowner from preventing access to his land sought to be taken for relocation of the levee, that oral evidence of the condemnation proceedings was incompetent, as the record is the best evidence, did not preclude the landowner from showing that there had been no proceedings to condemn the new location of the levee.
    Appeal from Lafayette Chancery Court; J. Y. Stevens, Chancellor;
    reversed.

      B. E. Garter and J. M. Garter, for appellants.
    There was no condemnation of the right of way over which the levee was built. 146 Ark. 14; 138 Ark. 471.
    The plaintiff had no right to go upon the land of defendant and construct its levee over a right of way which had not been condemned for that purpose. Nunes v. Coyle, 148 Ark. 365; 143 Ark. 302 229 S. W. 38 142 Ark. 509.

      B. L. Searcy, for appellee.
    The question of condemnation of right-of-way has been settled by a former decision in this case. 146 Ark. 14. See also 56 Ark. 171; 60 Ark. 54.
   Hart, J.

This is a suit in equity by the board of directors of a levee district to enjoin a landowner from interfering with them in constructing a levee across his land. The landowner defended on the ground that there had been no condemnation of bis land for a right-of-way on which the board bad proceeded to build tbe levee.

This is tbe second appeal in tbe case. Tbe opinion on the former appeal contains a statement of the facts, and is reported in 146 Ark. p. 14, under the style of Dickson v. Board of Directors of Long Prairie Levee District.

The levee district was created by special statute, and the General Assembly -of 1917 passed another special statute for the purpose of enabling the board of directors to rebuild a portion of tbe levee which had been washed away and to raise and strengthen it for the protection of tbe lands in tbe district. This statute provided the-method by which the board might appropriate additional lands for the purpose of rebuilding the levee.

On the former appeal tbe court held that the remedy provided for the aggrieved landowner answered in all respects tbe constitutional requirements of due process of law and of awarding* compensation for private property taken for public use.

Under tbe facts stated tbe board located tbe right-of-way for rebuilding tbe levee over tbe land of tbe grantor of Kelley Dickson, and tbe land necessary for tbe right-of-way was appropriated by tbe board in tbe manner provided by tbe statute. Kelley Dickson then purchased the land. Before the board proceeded to construct tbe levee across tbe land which had already been condemned for a right-of-way, it caused a new survey to be made and located tbe right-of-way on tbe same land, but about 500 feet distant from tbe former location. Tbe new location was outside of tbe right-of-way taken by tbe first location. No notice was given to Kelley Dickson of tbe new location and of tbe intention of the 'board to appropriate additional lands for tbe construction of the levee.

The chancery court admitted oral testimony as to the plans and specifications for constructing tbe levee. On the former appeal tbe court held that the filing of tbe plans and specifications in the office of tbe county clerk made a record which constituted the sole evidence of what was done in that regard, and that oral evidence thereof could not be introduced in the absence of proof of loss or destruction of the record.

The decree was reversed because oral proof as to the plans and specifications was admitted over the objections of Dickson, the landowner, without any showing that the plans and specifications showing the re-location of the levee had been lost.

The cause was remanded with directions to permit record evidence to be introduced to show that there was a valid condemnation of the land of Dickson in accordance with the. statute, and for further proceedings not inconsistent with the opinion.

Upon the remand of the case the chancery court refused to allow Kelley Dickson to introduce proof tending to show damage to his land and crops on account of re-locating the levee on his land and appropriating them for a right-of-wray for it. The ruling of the court pj oceeded upon the theory that the question was adjudicated on the former appeal.

We do not agree with counsel in this contention. As wre have already seen, before Dickson purchased tie land, the board had condemned the right-of-way across it in the manner provided by the statute. After Dickson purchased the land, the board relocated the levee across his land at a point outside of the first location. It had the right under the act to abandon the first right-of-way located and to locate a new right-of-way for the purpose of constructing the levee, if it thought the new' location would afford better protection to the Unds in the district. It wras necessary, however, for the hoard to condemn the land taken by it for the new location, for the reason that it was outside of the right-of-wmv condemned in the first location, and therefore was not included therein. No notice was given to Kelley Dickson as required by the statute,. when the land was appropriated for the new location of the levee nUer he had purchased it.

It is evident that it was not in the power of the board to re-locate the levee and take additional land for the right-of-way without first providing- for just compensation to be made to the owner in the manner provided in the statute. But counsel for the board invokes the well settled doctrine that questions once determined in the appellate court will not be examined there on the second appeal in the same case. This court has repeatedly recognized the principle that a decision on appeal governs the case throughout all its subsequent stages, but we do not understand it to be what the counsel for the levee board asserts.

In our judgment a decision rendered on appeal determines only such questions as are presented for decision and are decided as essential to a just disposition of the pending- appeal. The language of a decision is always to be understood by applying it to the facts of the ease decided and construing it with reference thereto. Little Rock Trac. & Elec. Co. v. Kimbro, 75 Ark. 211.

Ou the former appeal, the issue raised was whether or not the land in question had been appropriated by the levee board for a right-of-way in the manner prescribed by the statute. To show this fact the board was permitted to introduce parol evidence as to the plans and specifications showing the re-location of the levee. As we have already seen, the court held that this was error, in the absence of proof of loss or destruction of the records, which wo-uld be the best evidence. This court tries chancery cases de novo, and it could not know whether there had been a valid condemnation or appropriation of the lands in question for a right-of-way until all the evidence was before the court on appeal. The decree of the chancery court was reversed on the former appeal because incompetent evidence had been admitted on the issue as to whether there had been a valid appropriation of the land in question. Upon the remand of the case, necessarily the very question presented was, whether or not there had been a valid appropriation of the land in question, and it was the duty of the chancery court to determine that question after hearing all the competent proof on the issue. The principle of the law of the case when applicable to a subsequent appeal of the same case is limited to decisions on the prior appeal on points necessary to a determination of the cause.

The court should have heard all the competent evidence upon the question of whether or not a valid condemnation or appropriation of the land in question had been made by the levee board. This question was not decided on the former appeal, because the court held that the chancellor had heard and considered incompetent evidence in reaching its conclusion, and the .cause was therefore remanded so that the chancellor might decide the question on competent evidence.

The record shows that there had been no valid appropriation or condemnation of the land for levee purpose, and the court erred in not awarding Dickson, the landowner, damages or compensation for the land taken. Therefore the decree will be reversed, with directions to dismiss the complaint for want of equity and for farther procedings according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Scott v. Pennington.
    Opinion delivered December 5, 1921.
    1. Malicious prosecution — question for jury. — It was not error to direct a peremptory instruction for the defendants, in an action for malicious prosecution, where there was no testimony tending to prove malice or want of probable cause.
    2. Witnesses — grand jurors. — In an action for malicious prosecution, it was not error to refuse to permit plaintiff to prove by members of the grand jury what testimony was given by the defendants, before the grand jury, in the alleged malicious prosecution.
    Appeal from Hot Spring Circuit Court; W. H. Evcms, Judge;
    affirmed.

      Oscar Barnett, for appellant.

      Actual malice need not be shown or proved to establish a cause of action for malicious prosecution. 100 Ark. 316; 101 Ark. 37; 193 S. W. 520; 199 S. W. 91. Malice may be inferred from want of probable cause. 122 Ark. 382; 193 S. W. 520; 204 S. W. 748.
    What facts -amount to probable cause is a question of law, whether they exist is a question for the jury. 169 S. W. 1023.
    The jury may infer malice as a fact from proof of want of probable cause, but they cannot infer a lack of probable cause from proof of malice. Both must be proved. 32 Ark. 166;'Cooley, on Torts, p. 185.
    There were no reasonable grounds or probable cause to accuse the plaintiff of stealing the hog. Cooley on Torts, (3rd Ed.) Vol. 1, pp. 329-330.
    The court erred in not submitting the case to the jury. 204 S.W. 748.

      D. D. Glover and Andrew I. Boland, for appellee.
   Wood, J.

This is an action by the appellant against the appellees for malicious prosecution. The appellant alleged, in substance, that the appellees on the 28th day of January, 1920, in the county of Hot Spring, State of Arkansas, falsely, maliciously and without any reasonable grounds or probable cause procured and caused an indictment of the grand jury of Hot Spring County charging the appellant with the crime of grand larceny, sotting forth the indictment; that the appellant was arrested and tried for the offense charged in the indictment and was acquitted of such offense; that G-. W. Fowler was a member of the grand jury at the time the appellant was indicted, and that Fowler and the other appellees conspired together to procure and did procure the indictment against the appellant; that they also wilfully and maliciously and without probable cause encouraged the prosecution of the appellant at the trial of the offense charged against the appellant in the indictment; that the appellant was damaged in the sum of $50,000 actual damages and $25,000 punitive damages, for which he asked judgment.

The appellees joined in an answer in which they denied all the allegations of the complaint. The facts are substantially as follows: In the fall of 1919 Stanley and Fowler were buying hogs in Hot Spring 'County for shipment to foreign markets. Appellant sold them two wagon loads of hogs. Among these was one red duroc which was claimed by Pennington. He made demand on Stanley and Fowler for the hog and notified them not to ship the same. Pennington demanded of appellant that he pay for the hog, which appellant did, and notified Stanley and Fowler that he had paid for the same, and that they could ship it, which they did. The grand jury, which convened in January thereafter, and of which Fowler was a member, indicted the appellant for grand larceny in the stealing of the hog of E. W. Pennington. On the indictment Stanley and Fowler were indorsed as the witnesses. The appellant was arrested, placed under bond for his appearance, and at the July term of court following was tried, the appellees appearing as witnesses at the trial on behalf of the State. After the evidence was adduced, the court instructed the jury to return a verdict finding the appellant not guilty. The appellant then instituted this action, alleging as set forth above.-

The 'appellant himself testified that he and the appellee had been good friends all the time. At the conclusion of the testimony which developed the above facts, which were uncontroverted, the court instructed the jury to return a verdict in favor of the appellees. The appellant requested several instructions which the the court, refused to' give, and which it is unnecessary to set forth. The jury returned a verdict in favor of the appellees. The court rendered judgment dismissing the action, and for costs in their favor, from which is this appeal.

The court did not err in giving the peremptory instruction.’ There was no testimony to warrant the court in submitting the issue to the jury as to whether or not the appellees had maliciously and without probable cause conspired together to procure, and did procure, the finding of the indictment against the appellant, nor was there any testimony to warrant submitting to them the issue, as to whether or not they maliciously and without probable cause advised and encouraged the prosecution of the appellant a't the trial on the indictment against him. The fact that .the appellee Fowler was a member of the grand jury and that all of the appellees were indorsed as witnesses on the indictment and were called as witnesses and testified at the instance of the State at the trial of the appellant on the charge of larceny, does not tend to prove any of the allegations of appellant’s complaint herein. The burden was upon appellant to establish his alleged cause of action.

The court did not err in refusing to permit appellant to prove by members of the grand jury what testimony was given by the appellees before that body in regard to the alleged grand larceny of the hog for which the indictment was returned against appellant. Such testimony was not competent. Sections 2992-3, Crawford & Moses’ Digest.

The record presents no error, and the judgment is therefore affirmed.


author: McCulloch, C.- J.

text:
    State v. One Ford Automobile.
    Opinion delivered December 12, 1921.
    1. Intoxicating liquors — forfeiture op vehicle. — Under Crawford & Moses’ Dig. § 6170, providing that there shall he no property rights in intoxicating liquors, and providing for the forfeiture of “any vessels, fixtures, valises or other containers”, held that a vehicle in which intoxicating liquor is being unlawfully transported is not subject to confiscation.
    2. Intoxicating liquors — forfeiture of automobile.- — Under Crawford & Moses’ Dig. § 6196, providing that “the conducting, maintaining, carrying on or engaging in the sale of intoxicating liquors in. violation of the laws of this State, in any building, structure or place within this State, and all means, appliances, fixtures, appurtenances, materials and supplies used for the purpose of conducting, maintaining or carrying on such unlawful business or occupation, are hereby declared to be public nuisances, and may be abated under the provisions of this act,” held not to authorize the confiscation of an automobile used in conveying intoxicating liquors where it does not appear that the automobile was being used in connection with the unlawful business of selling liquors at any particular place.
    3. Statutes — repeal op common law. — Statutes should not be held to be in derogation of the common law unless there is an irreconcilable repugnance, or unless the statute itself shows that such was the intention and object of the lawmakers.
    4, Statutes — repeal op common law. — Where the Legislature adopts a common-law offense as a statutory one, and prescribes a different penalty, it is necessarily in derogation of the common law, and must be treated as a repeal, by implication, of the common-law penalty.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      J. 8. Utley, Attorney General, Geo. W. Emerson, Prosecuting Attorney, and W. H. Donham, for appellant.
    The case of White Auto Company v. Collins, 136 Ark. 81, is decisive of the question that may arise as to the claim of Hamp Williams Hardware Company or R. A. Johnson to the automobile sought to be confiscated.
    The statute, § 2, act 87, Acts 1919, amending § 6, act 13, Acts 1917, omits the word “vehicles,” and there is no authority under that statute to confiscate vehicles used in the illegal traffic, but there is authority for such confiscation under the common law. 136 Ark. 81; 87 S. E. 976; L. R. A. 1916-E, p. 338; 1 Bishop, Crim. Law, 7th Ed., 492, 494; 14 Law. Ed., 249; 24 R. C. L. 724-725; 20 Id. 384; 2 Abb. Prac. (N. S.) 193.
    If'§ 6, act 13, Acts 1917, was in derogation of the common law and therefore abrogated it, the repeal of that statute would again put the common law in force. 85 Ark. 598; 91 Id. 243; 100 Id. 175; 31 Id. 181-84.

      A statute in derogation of the common law must he strictly construed. 82 Ark. 247. And a statute will not be taken as in derogation of the common law, unless the act itself shows such to have been the intention of the Legislature. 49 Ark. 237; 1 Id. 557; 5 Id. 135, 136. It cannot be presumed that the Legislature intended to abrogate or modify the common law by passing a statute covered by the common law. 25 R. C. L. 1054-55 and cases cited.
    An automobile used in the unlawful transportation of intoxicating liquor is forfeitable under § 6196, Crawford & Moses’ Digest.

      Price Shofner, for interveners.
    The’ amendatory statute clearly expresses the intention of the lawmakers not to subject to forfeiture furniture, implements, or vehicles, § 2, act 87, Acts 1919, but to subject vessels, fixtures, valises or containers — things peculiarly fitted for use in the sale or transportation of liquors.
    There is no statute here, as was the case in White Auto Co. v. Collins, 136 Ark. 81, to uphold the confiscation, and that case is not decisive of intervener’s claim. “The forfeiture and disabilities imposed by the common law on persons attainted of felony aré unknown to the laws of this country, and no consequences follow conviction and sentence except such as are declared by law.” 12 R. C. L. 124; 18 R. C. L. 257, § 263. No claim is made that either intervener knew the purpose for which the automobile was being used, or had anything to do with it. The automobile ought not to be forfeited; 19 Cyc. 1356-1357; § 17, art. 2, Const. There is no fact in the record to justify the claim that the automobile itself is a nuisance, nor, indeed, any authority to be found for confiscation as a remedy for nuisance. 92 Ark. 546; 93 Id. 362; 95 Id. 545. The law provides a remedy by indictment for maintaining a public nuisance, or by proceeding in equity for an injunction. 70 Ark. 12; 24 R. C. L. 724-725.

      Sec. 6196, C. & M. Digest, has no application to a case of this kind. It is directed to the business of selling intoxicating liquors in violation of the law.
   McCulloch, C.- J.

' This is a proceeding instituted by the prosecuting attorney on behalf of the State to confiscate and condemn for sale an automobile used in unlawful transportation of intoxicating liquor. The case was heard by the circuit court on agreed statement of facts, in which it is shown that the machine in question was used by one Wilson to unlawfully transport 20 gallons of alcoholic liquor from one point to another in Pulaski County. It also appears from the agreed statement of facts that Wilson borrowed the car from E. A. Johnson, who held the same under a contract of purchase from the Harnp Williams Hardware Company, of Hot Springs, the seller reserving the title until the purchase price was paid. The Harnp Williams Hardware Company and Johnson intervened to resist the confiscation, and it was agreed that neither of them had any information that Wilson was using the car for an unlawful purpose. The circuit court refused to confiscate the machine, and the State has prosecuted an appeal to this court.

A statute enacted by the General Assembly of 1917 (act No. 13, Session of 1917) provided for forfeiture and confiscation of “any vessel, fixture, furniture, implements or vehicle” unlawfully used in the transportation of intoxicating liquor, but that statute was repealed by act No. 87 of the session of 1919 (Crawford & Moses’ Dig. sec. 6170), which omitted the words “implements or vehicles,” and substituted the words “valises or other containers.” It is conceded that in the later statute, supra, there is no provision regarding the instrumentalities used in the transportation of liquor other than those things expressly mentioned.. In other words, it is conceded that the vehicle by which liquor is unlawfully transported is not subject to confiscation under this statute. It is, however, contended on behalf of the State that there is a right of confiscation in the present instance under another statute which reads as follows:

“The conducting, maintaining, carrying on or engaging in the sale of intoxicating liquors in violation of the laws of this State, in any building, structure or place within this State, and all means, appliances, fixtures, appurtenances, materials and supplies used for the purpose of conducting, maintaining or carrying on such unlawful business or occupation, are hereby declared to be public nuisances, and may be abated under the provisions of this act.” (Crawford & Moses’ Digest, § 6196).

This contention cannot be sustained, for it is obvious that the statute just quoted applies to cases where the unlawful business of selling intoxicating liquors is carried on “in any building, structure or place.” There is nothing in the agreed statement of facts in this case to show that 'Wilson was operating the unlawful business at any particular place and was using this automobile in connection with that business. The facts, as set forth in the stipulation, relate only to a single instance of unlawful transportation of liquor.

Lastly, it is contended that at common law there was forfeiture and confiscation under facts similar to the present case, and that such provision has not been repealed by our statute. .

The rule is that a statute should not be held to be in derogation of the common law unless there is an irreconcilable repugnance, or unless the statute itself shows that such was the intention and object of the lawmakers. Wilks v. Slaughter, 49 Ark 235; Powell v. State, 133 Ark. 477. And where the Legislature, by statute, carves out of the common law an offense, making it a statutory offense, there is no implied repeal of the common law with respect to other offenses of the same general character. Powell v. State, supra. We have an instance now, however, where the Legislature has taken up the subject of punishment for unlawful manufacture, sale or transportation of intoxicating liquors, prescribed a procedure and. imposed such penalties as the lawmakers deemed adequate. There is in this statute a provision for forfeiture and confiscation of certain things, and all reference to vehicles used in transporting liquor is omitted. Where the Legislature adopts a common-law offense as a statutory one and prescribes a different penalty, it is necessarily in derogation of the common law and must be treated as a repeal, by necessary implication, of the common-law provision concerning the penalty. It is unnecessary to enter into any discussion as to the extent and limits of the common law in regard to confiscation of property used unlawfully, for we have reached the conclusion that our statute, so far as concerns the use of property in the unlawful manufacture, sale or transportation of intoxicating liquors, has repealed the common law.

Judgment affirmed.

Humphreys, J., dissents.


author: McCulloch, C. J.

text:
    Davis v. Scott.

    Opinion delivered December 12, 1921.
    1. Railroads- — failure to keep lookout.- — Where the undisputed evidence shows that the engineer on a railroad locomotive was keeping a lookout, and that he saw decedent approach the track, and that he at once gave the signal for brakes, threw- on the emergency brake and made an unusually short stop, it was error to submit to the jury the issue of negligence in failing to keep a lookout.
    2. Railroads — negligence—proximate cause. — Where decedent knew that a train was approaching, and, being totally deaf, walked in front of the engine, failure of the engineer to give the statutory signals was not the proximate cause of the injury.
    S. Railroads — negligence—high rate op speed.- — -Proof that a train approached a town at an unusually high rate of speed held to justify a finding of negligence in the operation of the train.

      4. Railroads — negligence—proximate cause. — A train approached a town on a down grade at an unusually high rate of speed where there was a curve in the track and numerous obstructions, where the presence of pedestrians might reasonably have been anticipated, where decedent might have been misled by not anticipating such speed, and where, if a slower speed had been maintained, the engineer might have stopped in time to avoid killing plaintiff’s decedent. Held there was evidence upon which to submit to the jury the issues as to whether the operation of the train at an excessive rate of speed was not the proximate cause of the killing.
    Railroads — presumption of negligence. — While there is a presumption of negligence where a traveler is injured at a railroad crossing by the running of a train, no such presumption arises in the case of a trespasser on the railroad track until it is shown that the injury would not have occurred if a lookout had been kept and warning signals given of the train’s approach. o. Appeal and error — invited error. — While it was error at plaintiff’s request to submit to the jury the question of contributory negligence where it appears that plaintiff’s decedent knew that the train was approaching and either negligently attempted to cross the track ahead of it or failed to look for its approach, such error was invited where defendant asked for an instruction submitting that issue.
    7. Railroads — contributory negligence. — In an action against a railroad company for the death of plaintiff’s decedent, where the undisputed evidence established decedent’s negligence, the court, under Crawford & Moses’ Dig. § 8575, should have told the jury that they should find for the defendant unless the decedent’s negligence was less than that of the trainmen, in which case the damages should be diminished in proportion to such contributory negligence.
    Appeal from Yell Circuit Court, Danville District; A. B. Priddy, Judge;
    reversed.

      Thomas S. Busbee and George B. Pugh, for appellant.
    The court should have directed a verdict for defendant. The facts did not justify a submission of the question to the jury. 107 Ark. 431; 97 Ark. 560; 129 Ark. 77.
    The testimony is not sufficient to show negligence in the speed maintained by the train. 63 Ark. 177; 84 Ark. 270.

      The plaintiff, knowing Ms physical defect, was guilty of negligence in going upon the track in front of the approaching train. 150 S. W. 29; 33 S. W. 396.
    Damages cannot be recovered' where the testimony shows that the employees exercised all ordinary and reasonable care and diligence to avoid injury. 72 So. 283; 70 So. 998. See also 51 Fla. 304; 41 So. 70; 53 Fla. 375; 43 So. 235; 70 So. 437.
    The damages were not diminished in proportion to the amount of negligence attributable to plaintiff. 58 So. 641.

      Wilson & Chambers and Evans S Evoais, for appellees.
    1. It was not error to refuse a peremptory instruction. Since the enactment of act No. 156, Acts 1919, p. 143, contributory negligence is no defense unless it also appears that such contributory negligence is equal to or greater than the negligence of the railroad causing the injury or death. 146 Ark. 555. On the question of Scott’s contributory negligence, if any, in undertaking to cross the track, the jury had the right to take into consideration the fact that the statutory warnings were not given. 138 Ark. 589; 63 Id. 182, 184. The appellant was under the dut}^ to moderate the speed of the train in approaching this community, and to anticipate the presence of, and to exercise due care for the protection of, pedestrians. 203 S. W. 740; 172 Pac. 108; 190 Id. 385; 164 Fed. 7i85, 22 L. R. A. (N. S.) 350; 145 Ark. 592; 80 So. 708. The lookout statute requires a constant lookout for persons or property on or near the track. To what purpose, if a train is to be allowed to run at such high speed that the danger cannot he avoided when discovered? 184 Pac. 765; 190 Pac. 385; 30 W. Va. 228; 4 S. E. 242; 79 Pa. 33; 2 Ohio Dec. 252; 113 Pa. 610, 6 Atl. 238; 138 Pa. 506, 21 Atl. 140, 21 Am. Rep. 914; 33 Cyc. 808; 90 S. W. 918; 22 R. O. L. 947; 30 So. 285, 106 La. Ill; 101 Miss. 768; 81 Id. 95, 32 So. 311; 146 Ky. 603, 143 S. W. 31.

      Scott was not a trespasser, but was crossing the track at the. station along a beaten path used by pedestrians. 65 Ark. 235; 70 Id. 481; 112 Id. 401; 112 Id. 401; 136-Id. 310; 81 Id. 275; 140 Id. 68; Id. 80; 116 Id. 47.
   McCulloch, C. J.

Berry Scott was run over and killed at the town of Belleville, in Yell 'County, by the locomotive of a freight train on the railroad of the Chicago, Bock Island & Pacific Bailway Company, then being operated under Government control. This is an action instituted in the circuit court of Yell County (Danville District) against the Director General of Bailroads, as agent, to recover compensation for injuries resulting to the widow and next of kin of said decedent by reason of the latter’s death. The damages were laid in the sum of $3,000, and on the trial of the case the jury awarded damages in the sum of $2,500 in favor of the plaintiffs.

The charges of negligence are, that the train was operated at an excessive and unusual rate of speed; that signals by bell or whistle were not given as required by law; that no lookout was kept, and that ordinary care was not taken to prevent the injury after discovery of Scott’s perilous position while approaching the track. The answer contains a denial of the charges of negligence, and also contains a plea of contributory negligence on the part of decedent. It is contended, in the first place, that the evidence was not sufficient to justify a recovery, and that the court should have given a peremptory instruction in favor of the defendant.

Deceased was entirely deaf, and it appears that his powers of speech were limited, though he was not altogether a mute. He could speak to some extent. He was a farmer, about 35 years of age, strong, healthy, alert and quick-minded, and resided on a farm a few miles distant from Belleville. He came to Belleville on Sunday, September 14, 1919, to bring his sister-in-law and her son, who were to take train for Oklahoma. The party arrived at Belleville shortly after noon and were awaiting the arrival of the passenger train due several hours later, going westward. Deceased hitched his team in a grove about 75 or 100 yards north of the railroad track and northeast of the station. The party then repaired to the station-house to await the coming of the passenger train. The freight train which ran over deceased came from the west. It was a fast train not running on schedule time, and did not stop at Belleville. There was a considerable grade for a half-mile or more approaching Belleville from the west, and there was a ■ curve in the track several hundred yards west of the station. The waiting-room for white passengers, where deceased and his party were waiting, was on the west end of the station, and there was a window on that end, through which the track could be seen for a certain distance. There is a little conflict in the testimony as to how far one could see up the track towards .the west from this window. There is testimony to the effect that a potato house about 300 feet to the west obscures the view beyond that point, and there is other testimony to the effect that the view was obscured to the distance of 75 or 100 feet. The track runs substantially east and west along there, and the town of Belleville is built up on both sides of the track, the business houses on each side facing the railroad. The main street of the town, running north and south, intersects the railroad track about 50 or 75 feet west of the station, and another street, running in the same direction, intersects the track about 100 feet still further west. There is another crossing east of the station, and there is a pathway, commonly used as an approach to the station, running across the track from a point ■ immediately north of the colored waiting-room, on the east end of the station, diagonally northward near a little flower garden.

There is a conflict in the testimony as to the rate of speed the train was making at the time, and whether it was under power in coming down the grade on this occasion. The testimony adduced by the plaintiff tended to show that the train was running at an unusual speed, about 35 miles an hour, and that it was not merely rolling down the grade, but was under power. The engineer testified that he was running at a rate of about 25 miles an hour. When the train approached from the west, Mrs. Lizzie Scott, sister-in-law of deceased, who was with him in the waiting room, noticed the smoke of the train and heard the whistle, but before it came in sight she spelled in the mute language of the fingers the words “black smoke.” Deceased made no direct reply, but in a moment said, “Oh, my mules!” and dashed out of the door of the waiting room, going in the direction of his team, which was still hitched in the grove north of the track. Mrs. Scott, seeing the danger, called to her grown son to “grab him, grab him,’/ and her son started after deceased to prevent him from crossing the track, which was about 20 feet distant from the station-room door. Deceased reached the railroad track, and about that time Eseo Scott, his nephew, caught up with him and attempted to interfere with his crossing the track, but did not succeed, and deceased twas struck by the train and instantly killed. His body was carried a short distance down the track. There is evidence tending to show that the attempt to cross the track by deceased was at or near the path or crossing referred to above, which ran along near the flower garden. There was evidence tending to show that, although the train whistled for the station, the signals by bell or whistle were not continued as required by law until the street crossings were passed. The engineer testified that he was on the lookout and saw the deceased come out of the station door and approach the track, and that he at once gave the signal for brakes, threw on the emergency and made an unusually short stop. It is undisputed that, according to the rate of speed the train was making, the stop was unusually quick after the brakes were applied. There were 25 or 30 cars in the train and the train was stopped within a distance of about three-fourths of its length. It is undisputed that the engineer was keeping a lookout. His testimony on that subject is reasonable and consistent, and there is no other testimony in conflict with it. He testified that he saw deceased when he came out of the door of the station-house, approaching the track, and it is undisputed that the train made an unusually quick stop. The charge of negligence in that respect is therefore unfounded.

There is evidence tending to show that the signals were not given as required by law, but the negligence in that regard was not the proximate cause of the injury. It is undisputed that deceased knew that the train was approaching from the west, and, being totally deaf, the signals would not have afforded any additional warning to him. Under these circumstances, the failure to give the signals could not have.been the proximate cause of the injury. St. L. I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; St. L. & S. F. R. Co. v. Ferrell, 84 Ark. 270; Todd v. St. L. I. M. & S. Ry. Co., 106 Ark. 390; Tyler v. St. L. I. M. & S. Ry. Co. 130 Ark. 583; C. R. I. & P. Ry. Co. v. Elzen, 132 Ark. 431.

But we think that the evidence was sufficient to justify the submission to the jury of the issue of negligence on the part of the operatives of the- train in maintaining a high and unusual rate of speed in passing through the town of Belleville and across the intersecting streets. The evidence showed that the train was not running on schedule and came at an unusual rate of speed down grade, so that it could not be held under control so as to afford adequate protection to persons who might, be crossing the tracks in the town. Unusual speed of a train does not, under all circumstances, constitute negligence, and often the court may declare, as a matter of law, that the maintenance of a high rate of speed under given circumstances does not constitute negligence, but under other circumstances it may become a question of fact for the determination of the jury. In this instance the train was coming down grade, and there was a curve in the track and other obstructions which prevented travelers from observing its approach at any considerable distance. There were numerous street crossings, where the presence of travelers by foot or by automobile or other modes of travel may reasonably have been anticipated, and it was within the sphere of legitimate inference for the jury to say that the speed maintained under these circumstances constituted negligence in the operation of the train. St. L. I. M. & S. Ry. Co. v. Denty, supra; Ford v. St. L. I. M. & S. Ry. Co., 66 Ark. 363; Hines v. Betts, 146 Ark. 555; C. R. I. & P. Ry. Co. v. Stepp, 164 Fed. 785; 22 L. R. A. (N. S.) 350; St. L. S. F. R. Co. v. Jones, (Okla.) 190 Pac. 385; Cin. N. O. & T. P. Ry. Co. v. Carter, 180 Ky. 765; 203 S. W. 740. It might be found, too, as a legitimate inference, that the negligence in this regard was the proximate cause of the injury. Deceased knew the train was approaching, and, if he looked towards it after it came in sight, he may have been misled by the excessive speed, and on that account failed to properly judge his chances of getting across before the engine reached him. But, whether the deceased actually looked at the approaching train or not, it is fairly inferable that if the train had been under control at a lower rate of speed, the engineer, by throwing on the emergency, might have slowed down the train so that deceased could have gotten across in safety. If he had had only a moment more, he would have crossed in safety, and this extra time might have been afforded by an attempt on the part of the engineer to stop the train at a lower rate of speed than that which was being maintained at the time.

Our conclusion is, therefore, that there was sufficient evidence to submit this issue to the jury, and this brings us to the consideration of the further questions in this case, whether there was error in submitting the issues to the jury. There being no evidence with respect to negligence in failing to keep a lookout, and the alleged negligence with respect to the failure to give signals not being, as we have seen, 'the proximate cause of the injury, the instructions of the court on this subject were abstract and should not have been given. They were prejudicial, for they may have induced the jury to return the verdict in favor of the plaintiffs. St. L. I. M. & S. Ry. Co. v. Kimbrell, 111 Ark. 134.

It is further insisted that error was committed in giving the following instruction at the request of the plaintiff over defendant’s objection:

“If a person is killed or injured in this State by the running of a railroad train, the law presumes that the killing or injury was negligently done. But the railroad to avoid liability for such killing or injury may show by a preponderance of the evidence that the killing or injury was not the result of the negligence of the railroad.”

There is a presumption of negligence in a case where a traveler is injured at a railroad crossing, but in case of injury to a person trespassing on the railroad track no presumption arises under the statutes of this State until it is shown that the injury would not have occurred if a lookout had been kept and warning signals given of the approach of the train. Crawford & Moses’ Digest, § 8568; St. L. I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431; C. R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444; C. R. I. & P. Ry. Co. v. Gunn, 112 Ark. 401; Fort Smith L. & T. Co. v. Phillips, 136 Ark. 310.

It is, however, contended by learned counsel for plaintiffs that the statute cited above and the decisions construing it are not applicable because of the effect of another and later statute, Act No. 136, Session of 1919, Crawford & Moses’ Digest, § 8575. This later statute is on a different subject and does not affect the former statute or this court’s construction of it in the cases cited above. The later statute deals only with the question of liability in case of contributory negligence.

Instruction No. 3 should not have been given in its present form, but should have told the jury that if deceased was killed while attempting to pass over the track at a crossing, there was a presumption of negligence, or that there was a presumption of negligence if it appeared that the injury could have been avoided by the exercise of proper care on the part of the operatives of the train. If, however, the undisputed evidence shows on the next trial that the injury occurred at the crossing, then an instruction telling the jury that there is a presumption of negligence will be correct. The statute referred to above (Crawford & Moses’ Digest, § 8575) reads as follows:

“In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a .recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of the recovery shall be diminished in proportion to such contributory negligence. ’ ’

* This statute establishes in this State what is known as the doctrine of comparative negligence, and provides, in substance, that in case of injury by running trains, contributory negligence of the injured person shall not constitute a defense unless the degree of his negligence is equal to or exceeds the negligence of those operating the train. The court, in its instruction No. 10, submitted the question of contributory negligence and gave this statute, in substance, to the jury. It is, we think, undisputed that deceased was guilty of contributory negligence, and that issue should not have been submitted to the jury. Deceased was 35 years of age, and, as before stated, was strong, active and intelligent. He knew that the train was approaching, and he either negligently attempted to cross the track with knowledge of its close proximity or failed to look to see how close it was. In either event he was guilty of negligence. St. L. I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438. We cannot, however, treat this error of the court as prejudicial, for the reason that the defendant also asked for an instruction submitting the question of contributory negligence, and it was given. The court ought to have narrowed the issue on this subject to the sole question whether or not the negligence of deceased was equal to or greater than that of those operating the train, telling the jury that, if they found the negligence of deceased was less in degree than that of the operators of the train, then the plaintiffs were not barred, but that the damages must, in the language of the statute, “be diminished in proportion to such contributory negligence.”

While the fact was undisputed that deceased wias guilty of contributory negligence, the jury might, under the circumstances of the case, have found that this' negligence was of a lesser degree than that of those operating the train. The jury might have found that' the engineer was guilty of gross negligence in operating the train at that place at such a high rate of speed, and that deceased, though guilty of negligence in going upon the track, was to some extent misled by the rapid approach of the train and that his negligence was slight because of that fact.

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

Hart, J., dissents.


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    Fry v. Grismore-Hyman Company.
    Opinion delivered December 12, 1921.
    1. Adverse possession — permissive possession. — Evidence that defendant’s possession of land was by permission of the owner, and not hostile to him, held to justify a finding that her possession was not adverse.
    2. Ejectment — instruction.—An instruction in an ejectment case that the defendant would not be bound by an agreement of her son that she was to hold the land as tenant of plaintiff’s grantor unless the son was her agent with authority to bind her was properly modified by adding: “or unless you further find that Mrs. Fry (defendant) occupied the land under the agreement, if any, by and between the agent of the prior owner and Walter Parker” (defendant’s son).
    Appeal from Mississippi Circuit Court, Osceola District ; B. E. Dudley, Judge;
    affirmed.

      John W. Scobey, for appellant.
    The court should have given the peremptory instruction (No. 1) requested by appellant. 132 Ark. 455. Also erred in modifying and giving as modified her requested instruction No. 2.

      Driver <■& Simpson and Arthur L. Adams, for appellee.
    The peremptory instruction was properly d.enied, as there is no evidence to show that the possession of appellant was hostile to the appellee’s title. 1 E. C. L. p. 686; 47 Ark. 66; 48 Ark. 312; 30 Ark. 640; 65 Ark. 422; 87 Ark. 496; 97 Ark. 33; 132 Ark. 455.
    The evidence adduced made the matter a jury question. 24 Ark. 224; 70 Ark. 385; 119 Ark. 6.
    Appellant’s requested instruction No. 2 was erroneous and properly refused.
    Mere residence or possession in itself is not sufficient to give title. 1 E. C. L. 704-5, §§ 16,17; 86 Ark. 202.
   McCulloch, C. J.

This is an action at law instituted by appellee, a corporation, against appellant to recover possession of a small tract of land described as 7.42 acres, situated in the form of a square in the northwest corner of the N. W. quarter of the N. W. quarter of section 1, township 12 north, range 8 east, in Mississippi County. Appellee deraigned title from the United States, and exhibited with the .complaint conveyances establishing a perfect record title. The testimony in the case made out a clear record title in appellee. Appellant claimed title solely by adverse possession for a period of more than 7 years. She proved in the trial that she entered upon the land 12 or 15 years before the commencement of the action and cleared and fenced it and continued in possession up to the commencement of this suit. The only issue in the case was whether appellant’s possession was adverse or whether it was permissive. The principal contention here for reversal is that the evidence is not sufficient to sustain the verdict in appellee’s favor.

At the time appellant took possession of the land it was owned by A. H. Chatfield, and appellant’s entry upon the land and subsequent occupation thereof was without color of title. It is not contended that she took possession under any claim of right.

Witness C. B. Bailey was Chatfield’s agent, and his duties were to look after the Chatfield lands, especially with reference to protecting the timber thereon from trespassers. He testified that during the year 1911 he visited appellant at her house on this land and had a conversation with her with reference to her continuing in possession. He testified that she had been in possession several years at that time and lived there with her two sons, the eldest, Walter, being an adult. He testified that appellant and her son Walter told him that •they were not asserting ownership of the land, and agreed to remain there only by permission of witness as Chatfield’s agent, and that he suggested to them that they had better draw up and sign a written agreement expressing a small amount for annual rental of the land, and it was finally agreed that Walter should watch the timber on this tract of land and other lands of Chatfield’s in the neighborhood in consideration of being permitted to occupy the tract in controversy. This witness also testified that in December, 1911, he wrote and mailed a letter to appellant’s son Walter, again suggesting that a writing be signed in regard to their occupancy of the land, and that in 1913 he received a reply from Walter stating, in substance, that his mother was going to leave, but that he would like to remain on the land and lease it and .would watch the Chatfield land in consideration of being permitted to remain in possession of this tract. Bailey testified that he was on the place again in the year 1916 and talked with Walter about his remaining in possession. He testified that neither appellant nor her son, Walter, had ever made any claim to the land as owners.

This evidence, we think, was sufficient to warrant the jury in finding that the possession was permissive and not hostile to the rights of appellee as the true owner. Chatfield was appellee’s immediate grantor.

It is also urged that the court erred in modifying instruction No. 2, requested by appellant. The instruction, as requested, would have told the jury that appellant was not bound by any agreement made by Bailey with her son Walter unless the jury found that Walter was her agent with authority to represent her. The court modified the instruction by adding the words, “or unless you further find that Mrs. Fry occupied the land under the agreement, if any, by and 'between the agent of the prior owner and Walter Parker.” This modification was correct, for, if appellant occupied the land pursuant to an agreement made between her son and the agent of the owner, then such occupancy was permissive and could not ripen into title by lapse of time, unless notice was in some way brought home to the owner that the occupancy had changed from a permissive one into a hostile one.

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


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    Bowman Engineering Company v. Arkansas and Missouri Highway District.
    Opinion delivered December 12, 1921.
    1. Equity — jurisdiction to wind up affairs of highway district. —Act of February 17, 1921, repealing prior acts creating a highway district in Jackson County, and providing that jurisdiction be conferred on the Jackson Chancery Court to wind up the affairs of such district, is constitutional, under the general power of chancery courts to enforce liens on real estate.

      2. Appeal and error — presumption from silence of abstract. — On appeal from an order of the chancery court allowing the fees and expenses of the commissioners of a highway improvement district, where the testimony on that phase of the case is not abstracted, it will be presumed that the decision thereon was , correct.
    3. Highways — improvement district — authority of commissioners. — The commissioners of a highway improvement district are authorized to contract for certain preliminary work before the assessment of benefits has been made, and such contracts are valid unless found to be improvident and unreasonable. Thus, they may employ an assessor to make the assessment of benefits, and may employ engineers to prepare the plans and to do other engineering work.
    4. Highways — improvement district — authority of commissioners to make contracts. — Where a contract was made by the commisioners of a highway improvement district with engineers to do all the engineering work in connection with that project, and an assessment of benefits was made which showed benefits in excess of the cost, and the engineers performed a substantial part of the work before the act creating the district was repealed, the engineers are entitled to recover the proportionate amount of the consideration earned under the contract.
    Appeal from Jackson Chancery Court; Lymcm F. Reeder, Chancellor;
    reversed.

      Jno. W. & Jos. M. Stayton, for appellants.
    1. The chancery court had jurisdiction. § 11, art. 7, Const.; C. & M. Dig. § 2184; 95 Ark. 620. The remedy at law was inadequate. 32 Ark. 489. The suit was proper in equity to avoid circuity of action. 21 C. J. § 52, p. 82. See also act 82, Acts 1919, § 17. The chancery court has original jurisdiction where lands are charged for the payment of debts.
    2. The uncontradicted evidence shows that the commissioners of the district employed Bowman Engineering Company to do all of the engineering work; that the latter did all of such work up to the point where actual construction work was to begin; that the work was performed in a satisfactory manner, and that the amount thereof was 40 per cent, to 50 per cent. of. the whole work covered by the contract. It is not disputed that the district was legally formed, and that the assessed benefits were in excess of the total estimated cost of construction. 115 Ark. 437; Gould v. Toland, 232 S. W. (Ark.) 434; 106 Ark. 39; 119 Id. 188; 127 Id'. 1. The court should have followed the rule laid down in the.Morgan Engineering Company case, 115 Ark. 437. As to how far a court of equity may go in canceling a contract as “improvident,” for inadequacy of price, etc., see Pomeroy, Equity, 4th Ed., § 926; 86 Ark. 460. The inadequacy must be so gross as to shock the' conscience and furnish decided evidence of fraud, before there is sufficient reason for -canceling the contract. Pomeroy* Equity, § 927; 1 Brown C. A. 1, 9.
    3. The compensation which the commissioners agreed to pay J. W. Nicholson for his services as assessor was not improvident, there was no competent evidence to show that it was excessive or exorbitant, and the court erred in so holding.

      Gustave Jones and Mehaffy, Bonham & Mehaffy, for appellees.
    The sum of five thousand dollars allowed as compensation to the attorneys is excessive, and too exorbitant a demand upon the taxpayers. 143 Ark. 453; 122 Ark. 14, 22. The rule laid down in this case, 143 Ark. 453, with reference to the employment of attorneys applies also to the employment of engineers.
    The claims of the commissioners aside from Mr. Van Dyke, as allowed, are exorbitant, and not in accordance with the act for their compensation, § 2, act, which provides that their compensation be fixed by the county court, which was never done. Mr. Van Dyke, who was as active 'and attentive as either of the other two, claims only $200.
    Chancery is not a common-law court. 2 Ark. 334; Id. 369; Id. 461; 12 Id. 131; 14 Id. 21. Having created chancery courts, the Legislature is without power to enlarge or diminish their jurisdiction. 95 Ark. 618; 95 Id. 389, 399; 80 Id. 185; 116 Id. 490, 493; 109 Id. 250. Therefore, that part of the repealing act which attempts to impose a tax for expenses is void.
   McCulloch, C. J.

The Arkansas and Missouri Highway District in Jackson County was created by a special act of the General Assembly of the year 1919 (Yol. 1 Road Acts, 1919, p. 134), the purpose being to construct a road a little over 44 miles in length through Jackson County as a part of a continuous highway through Arkansas and Missouri. The statute named the commissioners and conferred power on them to appoint an engineer, attorneys, agents and servants and an assessor to assess the benefits and to select the route of the road, issue bonds, levy assessments and complete the improvement of the road in accordance with the design of the statute. The statute contained a provision that if “for any reason the improvements herein authorized and directed * * * * shall not be made, all expenses and costs accrued to that time shall be charged against the real property in tbe district,” etc.

The commissioners appointed appellant, Bowman Engineering Company, a co-partnership composed of W. A. Bowman and C. B. Ford, as engineers and entered into a written contract whereby said appellants undertook to do the engineering work for the district and were to be paid as compensation for their services 5% of the actual construction costs of the improvement not exceeding $1,000,000, and 4% on the cost of construction over $1,000,000, 40% of the entire fee to be paid when the construction contract was let. Subsequently the contract was amended so as to reduce the fee of the engineers to 4%% of the cost of the actual construction. In this contract said appellants agreed to do all the engineering work connected with the construction and improvement, to make the preliminary plans and supplement the plans of the Highway Department, make final plans, supervise the construction work, furnish estimates on the work done from time to time, and to do everything else in connection with the engineering work of the district, and to assist the assessor in making the assessment of benefits. The contract further provided that it “shall not take effect until second party has furnished first party a good 'bond in the sum of not less than $1,000 for contracts of $50,000 or under; 2% on construction contracts of $50,000 to $100,000; lVzjo on construction -contracts of $100,000 to $200,000; 1% on construction contracts of $200,000 or over, with sureties to be approved by the first party and the State highway department, conditioned that second party shall well and truly discharge the duties of this contract, and promptly repay to first party any advance or overpayment that may be made to second party. ’ ’ Bond was given under this clause of the contract. Other matters were specifically mentioned in the contract, but it is unnecessary to enumerate all the duties imposed upon the engineers by this contract.

The preliminary surveys were made by the engineers, as well as the final plans and specifications and estimates of the costs of the work in detail.

The commissioners appointed appellant J. W. Nicholson as assessor and agreed, to pay him the sum of $2,500 as compensation for his services. The assessment was made by said assessor with the assistance of the engineers, and a list of the assessments was reported to the commissioners and was approved, and on February 5, 1920, there was a special statute enacted at the extraordinary session of the General Assembly, confirming the assessments as thus made. The letting of the contract for the construction of the work was thereafter advertised, and the engineers performed all of their services with respect to this part of the proceeding. The bidders submitted their bids on the advertised date, but for some reason the contract was not let, though the lowest bid was accepted and the amount was within the assessment of benefits. All further proceedings were held in abeyance and nothing further was done until the General Assembly convened in the regular session of 1921, and a special act was passed repealing the law creating the district and directing that the affairs of the district he wound up in the chancery court of Jackson County, and that the liabilities of the district he adjudicated and paid from the collection of assessments on the benefits on the real property in the district. -The present proceedings were taken under this statute, and the claims involved on this appeal were filed for allowance. The .engineers filed a claim for 1.7 per centum of the estimated cost of the improvement, making $17,434.92 and interest from March 1, 1920, to date of payment. Appellant J. W. Nicholson filed his claim for an unpaid balance of $1,250 on the contract price of his services as assessor, having already been paid $1,250 by the commissioners. The attorney for the district also filed his claim for services under his contract of employment with the commissionérs, and the commissioners themselves filed their respective claims for services and expenses. There were doubtless other claims presented, but only those enumerated above were contested, and the prooedings concerning the uncontestecl claims were not brought into the record, so far as shown by the- abstract. Certain citizens and taxpayers in the district intervened, contesting the validity of the claims above enumerated.

The cause was heard by the court on the testimony of witnesses and documentary evidence, and a decree was rendered, fixing the fees of the engineers at $4,000, and fixing the fee of the assessor at $1,250, the amount already paid to him. The fees of the attorney were also fixed by the court, and the fees of the commissioners. An appeal has been prosecuted by the Bowman Engineering Company and Mr. Nicholson from those parts of the decree that affect their respective claims, and the remonstrants appealed from that part of the decree- fixing the fees and expenses of the commissioners. There has been no appeal from that part of the decree which fixed the fees of the attorney of the district.

It is contended, in the first place, by counsel for appellees, that it was beyond the power of the Legislature to confer jurisdiction on the chancery court, and that the statute undertaking to do so is void. Similar statutes have been enforced by this court without question raised as to their' validity. Thibault v. McHaney, 119 Ark. 188; Sam v. Bogle, 122 Ark. 14. This power could rightfully be conferred as part of the general jurisdiction of chancery courts over the enforcement-of liens on real estate, and it is unnecessary to search for further grounds for conferring this jurisdiction. Murray v. Rapley, 30 Ark. 568; Lane v Hallum, 38 Ark. 385; Kiser Lumber Co. v. Mosley, 56 Ark. 544.

The appeal of the remonstrants from that part of the decree which relates to the fees and expenses of the commissioners may be disposed of by referring to the fact that no attempt has been made to abstract the testimony, and we are unable to determine from the abstract whether the fees were properly allowed or not, and must assume that the chancery court’s decision on this subject was within the principles of law announced by this court in the recent case of Gould v. Toland, 149 Ark. 476.

The chancery court decided that the contracts between the district and the engineers and the assessor, respectively, were void, and that they could only recover on a quantum meruit for the services performed. The court was wrong in this conclusion.

It was within the power of the commissioners to make contracts for preliminary work. We perceive no reason why this should not be so, for the statute conferred authority on the commissioners to do whatever was necessary to eary out the expressed design of the lawmakers in enacting the statute. The preliminary work precedes, of course, all permanent work and is essential before it can be known whether or not the permanent work can be proceeded with. The statute creating the district clothed the commissioners with power to have the preliminary work done, and this necessarily implied the power to make a contract with reference to the doing of this work. There is little reason for holding that the power of the commissioners is limited to making contracts concerning permanent work, for preliminary work is just as essential. The only difference is that the contract for preliminary work may be made in the beginning, whereas the contract for permanent work must be made, or at least must take effect, after it is ascertained that the permanent work can be done within the limits of the assessment of benefits. The assessment work was preliminary in« order to determine the amount of benefits, and the contract with the assessor for doing that work was within the power of the commissioners, and the contract was valid unless it is found to be improvident and unreasonable. That question will be discussed later when we come to review the evidence in the case.

There was no separate contract with the engineers for the preliminary work, but the contract was one for the performance of all engineering work, both preliminary and permanent. We have decided in several cases that a contract for permanent work is premature and ineffective until it is determined, as a preliminary matter, what the estimated cost of the improvement will be and what the benefits will amount to, so that it can be seen that the cost will not exceed'the benefits. Cherry v. Bowman, 106 Ark. 39 ; Thibault v. McHaney, supra; Gould v. Toland, supra. We said in Thibault v. McHaney, supra, referring to Cherry v. Bowman, that under authority of that case a tentative contract might be entered into for permanent work in advance of the assessments of benefits, yet such contract would not be operative and binding on the district until there has been an assessment of benefits. In Gould v. Toland we said that the premature contract for permanent construction remained in abeyance and did not become effective until the assessment of benefits bad been made for tbe purpose of ascertaining wbetber tbe cost of tbe improvement would exceed in value tbe assessment of benefits. None of tbe cases referred to decide wbetber or not it is witbin tbe power of the commissioners to withdraw from a tenative contract before it becomes effective, and it is unnecessary to do so in tbe present ease, nor do those cases decide just what is necessary to make tbe contract effective. We think, however, that it follows necessarily from those decisions that there must be a distinct recognition in some form of the existence of the prematurely made contract after tbe time comes for it to be made effective; in other words, when it is determined that the total cost of the improvement will not exceed the benefits. In tbe present case there was an assessment showing benefits in excess of tbe estimated cost of tbe improvement, and therefore it was witbin tbe power of tbe commissioners to make tbe contract. Tbe evidence shows that, after tbe assessments were completed and approved, tbe contract was treated as being in effect, and proceedings were taken thereunder looking to tbe construction of the permanent work. The engineers performed a substantial part of tbe contract in supervising tbe work of advertising and receiving bids for the letting of tbe contract. The case differs in this respect from Thibault v. McHaney, and Gould v. Toland, supra, in that the facts in those cases were that there was never any assessments of benefits, and the time never came for tbe contract to become effective. Tbe circumstances in this ease bring it directly witbin tbe rule in Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, where tbe contract for tbe whole of the engineering work was made in advance, as in the present case, and some of the permanent work was done thereunder. We decided in that case that the contract was valid, and that the obligations thereof could not be impaired by subsequent legislation, so far as concerned tbe payment of earned compensation for work done under the contract. The claims made in tbe presen! case are limited to earned compensation under the contract, and we have nothing else to deal with. This contract, as before stated, was one for the whole engineering work, .and not a separate contract for each particular work. There was a provision for payment of 40 per centum of the fee as soon as the contract for construction was entered into, but this did not separate the contract, but only constituted a specification of time for payment. Morgan Eng. Co. v. Cache River Drain. Dist., supra; Gould v. Toland, supra.

It follows, therefore, that appellant engineers were entitled to recover compensation, not only on the quantum meruit, but for the proportionate earned contract price. Such was the effect of our decisions in the case just cited, Morgan Engineering Co. v. Cache River Drain. Dist., supra. There is nothing in our decision in the case of Sain v. Bogle, supra, which militates against this view. In that case the drainage district was dissolved by special act of the Legislature, and there was a contest in the chancery court over the fees of the attorneys and engineers, and we decided that, under the proof, the allowances made by the chancellor were excessive. We determined from'the evidence what was a reasonable fee for the attorneys, and, as we found that the evidence related, in part, to compensation to. the engineers for work for which they were not entitled to charge, we remanded the cause for further proof limited to compensation only for work which the engineers could legally charge against the district.

We have said that contracts made by the commissioners with the assessor for the amount of fee must be reasonable in order to be valid and binding. The commissioners have power to make contracts, but they are trustees of the property owners and can only make reasonable ones. The owners of the property have a right to challeng'e the validity of such contracts -by showing that they are unreasonable. Of course, in testing* the validity of such contracts, the court should not substitute its own judgment primarily for that of the commissioners, the authority to make the contract being lodged by the lawmakers in the commissioners, but the inquiry of the court is to determine whether or not the contract is so improvident as to demonstrate its unreasonableness.

Proof was taken in the present case to show whether or not the contracts with the engineers and assessor were unreasonable. The contract with the engineers was for the payment of 4% per centum of the actual cost of construction, and considerable of the testimony was adduced to show that this contract was reasonable. Three engineers, who were not shown to-be interested in any direct manner in the present litigation, testified that the customary contracts in this State for such services were 5 per centum of the total cost of construction, and that the custom in most of the other States was even a higher rate of percentage as compensation. The engineers themselves testified concerning the value of tlieir services and what was done under the contract. The only testimony on the other side was concerning the amount paid for engineering services in two or three other districts, much smaller than the one involved now.

It appears to us that the testimony was clearly preponderating in favor of the reasonableness of this contract, and there is very little in the evidence to the contrary. We see no reason for disregarding the testimony of men who know, or pretend to know, the value of such services and are conversant with the particular work done under such contracts.

The same may be said with respect to the contract with the assessor. He testified himself concerning the amount of work done, and there was other testimony on that subject which corroborated his statement and tended to show that the contract was reasonable. The only testimony against it is that which shows the salary or emolument of the assessor of Jackson County, which is not necessarily a criterion for determining the value of services in the assessment of benefits from local improvements. Onr conclusion is that the preponderance of the testimony is in favor, also, of the reasonableness of the contract with the assessor, and there is no reason for setting it aside; and, since the assessor has performed the whole of the contract, he is entitled to the full contract price.

The question now arises as to what should be the proportionate allowance for the engineers. Each of the two engineers was introduced as a witness and testified fully as to the work done under the contract. They detailed what was done, the number of men engaged, length of time and the actual expenses of .doing the work. It appears from this testimony that both of the engineers gave their personal services, and that they, had a crew of about nine men engaged in the work making the survey. They maintained an office, where the office work pursuant to this contract and others which they had at the same time was conducted. In the testimony of one of the engineers there is presented an itemized account of the expenses, which aggregated the sum of $12,697, and which included the salary of Mr. Bowman for seven months at $300 a month, and the salary of Mr. Ford at $250 per month, also the sum of $3,600 for profits or compensation of the firm during the period of 12 months. The testimony showed that they were engaged in the work and were holding themselves in readiness for the work a much longer time. The three engineers who were introduced as expert witnesses gave their opinions as to the proportionate amount earned under the contract. Two of them said that the engineering work done up to the time of the letting of the contract was 50 oper centum of the whole work, the work up to that time being creative and after that time supervisory. One of the engineers testified that from 40 to 50 per centum would be the proper proportion. The claim of the engineers, as presented for allowance, is for 40 per centum of the contract price.

While we think that the testimony establishes the reasonableness and validity of the contract as a whole, it is not clear from the testimony in this particular instance that the engineers earned a per centum of 40 per cent, for the proportionate amount of work done. The fact that the engineers themselves made out an account of the actual expenses, showing- that those expenses amounted to only $5,247 and that the remainder is an allowance as compensation for their services, is, we think, an emphatic statement that such is a reasonable proportionate compensation for the work done. Of course, the engineers are entitled to their profits on the proportionate part of the work done under the contract and are not limited to actual salary which would be paid to those engaged in doing such work, but here we have incorporated in this statement what was evidently their idea of a reasonable salary and also of the reasonable profits to go to the copartnership. In addition to that, there is another feature of the testimony which is quite significant in determining the proportionate value of these services. Mr. Ford testified that they were enabled to - do the preliminary part of the work at a lower price because of the familiarity previously acquired by each of the engineers as to the land in the district, the topography of the locality, and also the fact that they had the field notes in their office, from which information could be gained and with which they were already familiar. He testified that on that account they made a deduction of three-fourths per centum from the original contract price. Now, this demonstrates beyond conjecture that the preliminary, or, as the engineers term it, the creative part of the work was subject to reduction in this particular in stance of three-fourths of one per centum of the contract price. When this is deducted from the 40 per centum, it leaves substantially the sum shown by the appellant engineers in their estimate of cost of the improvement. In other words, to be exact in the figures, this deduction of three-fourths of one per centum from the 40 per centum presented by appellants in their claim reduces it to the sum of $12,822.

We are therefore of the opinion that, taking the testimony as a whole, and giving each part due credence, the account made out by the engineers showing actual cost of construction at the sum of $5,247, and compensation to the members of the firm individually and to the copartnership of $7,450, making a total of $12,-697, is the proper proportionate amount which they should be allowed under the contract.

Something must be said with respect to the claim of the engineers for interest on their account. They are entitled to recover, .as we have said, on the contract, but the amount is not liquidated and has to be ascertained from the evidence. Under the contract the first payment of 40 per centum was to be made “when the construction contract is let.” It appears from the evidence that the contract was never let, and that the Legislature, in the repealing statute subsequently enacted, adopted another procedure for compensation under the contract. This procedure was by the adjustment of the amounts in the chancery court. There was therefore no fixed time for the payment of the claim from which interest could be computed, and we are of the opinion that no interest is properly chargeable in favor of the claimants.

The decree is therefore reversed on the appeal of the Bowman Engineering Company and J. W. Nicholson, and the cause remanded with directions to enter a decree in favor of Bowman Engineering Company for the sum of $12,697 with costs, and in favor of appellant J. W. Nicholson for the sum of $1,250 with costs, in addition to the amount already paid to him. It is so ordered.

Hart, J. (dissenting). If the interpretation now placed upon the opinion in Morgan Engineering Co. v. Cache River Drainage District, 115 Ark. 437, is to be considered correct, Judge Wood and myself believe that the contract in the instant case is in nowise like the contract in that case, and that the majority opinion is wrong in so holding. The contract in the instant case is somewhat long, but we believe it is necessary to set out the following:

“The compensation of second party shall be, an amount equal to 5 per centum of the actual construction cost of all the improvements made by first party not exceeding in cost $1,000,000, and 4 per centum on all such costs in excess of $1,000,000, to be paid as follows: 40 per centum of the entire fee to be paid when the construction contract is let, or, if more than one construction contract is let, the proportionate part of said 40 per centum represented by the contracts that are let. The balance of said compensation is to be paid in installments by first party to second party at the same times and in the same proportions that cash on estimates is paid to the contractor or respective contractors. If for any reason the letting of contracts is delayed beyond 90 days from the completing of the final plans, then first party shall make arrangements to secure funds and pay second party as a partial payment the costs that they have been put to for the preliminary surveys and preliminary plans made to that time, including compensation to second party at the rate of $200 a month from the date of this contract to the time the construction contract is let, and when such contract or contracts are let then party of second part will be paid 40 per cent, of entire fee that date, less all amounts paid to second party to that date of such settlement. The first party agrees to pay said compensation as herein set forth.”

“Seventh. This contract shall not take effect until second party has furnished first party a good bond in the sum of not less than $1,000 for contracts of $50,-000 or under; 2 per cent, of construction contracts of $50,000 to $100,000; IV2 per centum on construction ■contracts of $100,000 to $200,000; 1 per centum on construction contracts of $200,000 or over, with sureties to 'be approved by tbe first party and tbe State Highway Department, conditioned that second party shall well and truly discharge the duties of this contract, and promptly repay to first party any advance or overpayment that may be made to second party.”

There is a clause dealing with the compensation to be paid the engineers. The language used here is 40 per centum of the entire fee to be paid when the construction contract is let. The balance of said compensation is to be paid in installments at the same time and in the same proportion that cash or estimates is paid to the contractor.

The .contract then provides that, if for any reason the letting of construction contracts is delayed beyond 90 days from the completing of the final plans, the engineers. shall be paid their expenses for preliminary plans and $200 per month from the date of the contract to the time the construction contract is let. Thus we see that the contract provides a detailed and definite method by which payments were to be made to the engineers.

The seventh section deals with a wholly different matter. It in plain terms says that the contract shall not take effect until the engineers have furnished a bond or bonds, the amounts of which are dependent upon the size of the construction contracts. The language is too plain for judicial construction, and if it does not mean that the contracts of the commissioners with the engineers is not to take effect until a contract or contracts for the construction of the road has been let, it is difficult to perceive how language to accomplish that purpose could have been used. It must be conceded that it was a wise and expedient precaution for the commissioners to take; for it may be readily seen that many unforeseen things might occur which would prevent the construction of the road. One of these was that litigation looking to the dissolution of the district was pending when the contract was executed. Another was opposition to the district on the part of the landowners which might cause the act creating the district to be repealed, and this is what did happen. Again, the assessment of benefits might prove to be less than the estimated cost of the improvement. Other reasons might be assigned, attesting the wisdom of such a provision, but it is enough for us that the language used, when given its plain and ordinary signification, means that the contract shall not take effect until the bonds dependent upon the construction contracts are given. It would seem that no useful purpose could be served by diverting this provision from the design sought to be accomplished by it and applying it to a wholly different purpose which had already been accomplished by a preceding clause of the contract. No contracts for the construction of the improvement were executed, nor were engineer’s bonds dependent upon them executed. Hence the contract never became effective.

But we do not believe that the case of Morgan Engineering Go. v. Cache River Drain. Dist., supra, should be construed according to the majority opinion. It is true we said in that opinion that any law passed by the Legislature which would impair1 the obligation of the contract of the commissioners with the engineering company would be contrary to our 'Constitution. It is equally self evident that every decision must be construed with reference to the particular facts of the case, and the previous decisions of the court bearing upon the question at issue. In Cherry v. Bowman, 106 Ark. 39, it was held that the provisions of a statute or the Constitution are read into a contract. This doctrine was reiterated in Thibault v. McHenry, 119 Ark. 188, and several later cases, and is also a principle of universal application.

The contention of the commissioners was that, under the terms of the repealing act, the Morgan Engineering Company could only have such compensation as the jury might find reasonable. This contention was based upon the theory that the repealing act provided that claimants should 'be allowed “reasonable compensation for such services rendered”,' and that the repealing statute governed. On the other hand, it was claimed by the Morgan Engineering Company that the contract governed and that the company, having done all the preliminary work, it was entitled to recover under its interpretation of the contract. (Seep. 443).

The court held that the contract only provided a method of payment. This is far from holding- that the commissioners could make a contract for unreasonable fees. So it will be seen that the principal point of dispute between the parties was whether' the provisions of the repealing act or the contract should govern. In our opinion, the court correctly held that neither should govern. This was in application of the rule laid down in Cherry v. Bowman, supra, that there are certain conditions which the law reads into every contract, and in obedience to the Constitution that no law shall be passed impairing the obligation of a contract. (Here it may be stated as a matter of information and not as argument that the transcript in the case of Morgan Eng. Co. v. Cache River Drain. Dist., supra, shows that the engineers had gone beyond the preliminary survey and had located a large part of the drainage ditch, and it did not appear whether permanent construction of the ditch had been commenced.)

Therefore, the meaning of the last cited case ought to be that, if the construction of the improvement had progressed to a point where the construction contract had been let and work had been done thereunder, the Legislature could not pass an act impairing the obligation thereof. If it holds otherwise, it has been overruled by the cases of Sain v. Bogle, 122 Ark. 14, and Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446. Indeed, we think its principles are upheld by those as well as other later classes. In Sain v. Bogle, supra, the contract with the engineers was practically’the same as in Morgan Eng. Co. v. Cache River Drain. Dist., supra, as shown by the opinions which were written by the same judge. The court had established the district. Land owners had attacked the district, and the validity of the district had been upheld. Subsequently- the Legislature, as in the instant case, repealed the act creating the district. The court there held that the engineers were only entitled to pay for work done by them for the district, on the same principle that attorneys are allowed fees, in effect holding that they were only entitled to a reasonable compensation.

In Bayou Meto Drain. Dist. v. Chapline, 143 Ark. 446, the court said: “The commissioners, -as public agents under the statute, as we have seen, are not clothed with arbitrary power in the matter of fixing fees of attorneys. They are acting as trustees for the public, and must have an eye to the interests of those whom they serve — the property owners who pay all the expenses incident to the improvement. They must be guided, in entering into the contract of employment with attorneys and fixing their compensation, by what would be a reasonable compensation for services which the attorneys are actually to render. It was not the purpose of the statute to confer upon the commissioners absolute power to contract with the attorneys for fees that would be exorbitant and unreasonable for the services rendered the district. While the presumption is that these public agents will conscientiously discharge their duties, yet it is not impossible, and indeed is entirely within the range of probability, that unreasonable and unconscionable fees may occasionally be agreed upon between the -attorneys and commissioners. A statute giving the commissioners absolute power in the premises to thus squander .the money of the taxpayers, levied for the purpose of making the improvement, would be contrary to public policy.”

In that case the improvement was constructed, and the attorneys were employed by the commissioners. The dispute was whether the parties agreed upon compensation and what it should be. No reason was given, and none is perceived by us, why the salutary and just rule in that case should be disregarded. It is worthy of note that in that case the chancellor fixed the fee of the attorneys at $6,000, and this court reduced it to $4,000. If the parties could not contract for an. unreasonable fee after the services had been performed, for like reason they could not do so in advance of a performance of the services.

If the construction of law announced by the majority should be considered correct, we think its application to the facts is wrong. We think so because they have overlooked a settled and fundamental rule in applying the law to a given state of facts. The rule of law referred to was announced by this court in its early history in Miller v. Jones, 32 Ark. 337, where it was said that the non-production of evidence clearly within the power of a party creates a strong presumption that, if produced, it would be against him. Prof. Greenleaf, our greatest law writer on evidence, is cited as authority for the holding. The rule has been approved by the Supreme Court of the United States in Kirby v. Tallmadge, 160 U. S. 379. Indeed, it is a general rule. See case note to Ann. Cas. 1914-A, at p. 909 et seq.

The rule prevails in equity as well as at law, that the omission by one party to offer evidence which may be within his reach, to control or explain evidence given by his adversary affecting his interest, is a circumstance of great weight against him. It is generally regarded as conduct in the nature of admission.

In the application of this rule in the instant case, it may be said that the testimony of the engineers is so vague and indefinite as to be intrinsically weak and entitled to but little weight. It is true that several engineers have been introduced who have testified that the amount claimed was reasonable. It is very significant, however, that they did not know what services the engineers had really performed. This is shown by the fact that the engineers themselves did not tell what the work had cost them, and how much of it had been performed by one of the firm. Their answers are evasive. Their own testimony shows that one of the partners was actively engaged in other work. Their testimony shows that they were engaged in various other enterprises at the same time which demanded their supervision and direction. All of their contracts were carried out by employees. In this particular district Morrow was the transitman and cost them $175 per month. ' The levelman cost $140 per month, including expenses. The rodman was paid $4 per day and expenses. Two dollars per day was the expense of outside labor.

According to the testimony of the engineers, one of them sketched the profile and Morrow drew it. Morrow made the plans and did all the drafting. Each employee wrote his own notes.

According to Bowman, Morrow was still working for him at the time his, Bowman’s, evidence was given. Here is the statement of the chancery court in rendering its decree in regard to the engineer’s expenses and fees, which we think is borne out by the facts: “As to the engineer’s contract: Under the testimony of the engineers themselves, it is improvident and excessive, and very much so. And then when they get away from the contract which Mr. Ford was trying to make seem reasonable and proper, figuring in everything possible to show how much could be made, the most he could make it then was $12,687. And that included $3,600 for the Bowman Engineering Company which they had figured as salary at $300 per month for Mr. Bowman and $200 per month for Mr. Ford himself. They had figured their profits and then put in $3600 more, and $500 for reports; $280 for office rents and lights; $200 for a calculating machine; $187 for rents on their own instruments; all of which I think are incompetent and should not be used in computing the value of their services, and which would reduce the worth of their services rendered to below $8,000 at their own figures. Now, if by an expense of less than $8,000 and by doing the greatest amount of the work under the contract they could make a profit of from ten to twelve thousand dollars, then the contract is certainly improvident and excessive and for an unreasonable amount. That is taking his own testimony for it. And, taking the other witnesses — this witness who did the work said'that they could make two miles a day in preparing this work, but say they could make only one mile a day, it wouldn’t take them seven months to do it. Mr. Bowman says, himself, they only worked 150 days; still they charge for seven months. I think that $4,000 would be ample pay for the work done by the Bowman Engineering Company; and that is what the decree will be.”

According- to the testimony of the engineers, Ford did part of the work, but Morrow did most of it. Morrow was as competent as Ford. They paid Morrow $175 per month. No effort is made by the engineers to show why they should receive so much more than they paid Morrow, who they admit was competent to do the work, by testifying that they kept him in their employ for that purpose. It will be noticed that they charged $2,100 for Bowman for seven months when he had personal charge of other work. 'Ford was paid $250 per montli for the same time when a large part of the time he was engaged in other work. Then again, the firm charged for the same seven months $3,600. The engineers admit that they were engaged in various other enterprises at the same time. They do not even show that they were at work on it for seven months.

It is fairly inferable from their evidence that they kept a book of accounts and could have told to a dollar what it cost them to make the survey.- If they did not keep accurate books, their evidence shows they keep a pay roll. They could have told from their bank checks what that survey cost them. Their own evidence shows that Morrow was still in their employ. He had charge of the work and doubtless knew what his pay roll amounted to each week and how long he was engaged in the work.

In the Chapline case, above cited, the record shows that the attorneys were employed while the improvement was being- constructed. It is true the fee was not fixed by the commissioners until after the services had been pen-formed, but the attorneys had been employed in the beginning. But the court held that the commissioners could not contract with the attorneys for more than a reasonable fee, and the reason was that they were trustees for the public.

So, if it is true that where the attorneys have rendered all the services that could be required of them where the improvement was constructed they could only recover reasonable fees for their services, it is difficult to perceive why engineers should recover more because they had contracted to do so before the work was performed.

The engineers had it within their power to show what the survey cost them, and, having failed to do so, the chancellor might rely upon the evidence introduced by appellee, which showed that other engineers had performed similar services for a less amount even than allowed by the chancellor.

With reference to the rule, Judge Story once said,. “And certainly naked statements must be entitled to little weight, when the parties hold better evidence behind the scenes.” So the failure of the engineers to show the cost of the survey is conduct in the nature of an admission against themselves and warranted the chancellor in find-ing for appellees in the amount stated in the decree.