text:
    Williams v. Broadway-Main Street Bridge District.
    Opinion delivered February 28, 1927.
    1. Bridges — operation of street cars and "motor busses. — Under Sp. Acts. 1919, p. 74, §§ 22, 23, and Sp. Acts 1923, p. 1648, §§ 1-3, amendatory thereof, the board of commissioners of Broadway-Main Street Bridge District had the power to provide for the operation of street cars over one of such bridges and motor busses over the other, and prohibiting either from interfering with the other by operating over the same bridge.
    2. Bridges — authority of railroad commission. — The Railroad Commission had no authority over the two bridges subject to regulation by the Broadway-Main Street Bridge District, under Sp. Acts 1919, p. 74, and Sp. Acts 1923, p. 1648, nor could it grant a permit to operate a bus line over streets of either city-connected by such bridges.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Price Shofner, for appellant.

      J. Merrich Moore and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   McHaney, J.

On the 27th day of January, 1925, the appellant filed a petition with the Arkansas Railroad Commission for permission to operate motor busses for the carriage of passengers for hire from Tie Plant, a settlement located about a mile east of the city of North Little Rock, through said city over a designated route to Main and Markham Streets in the city of Little Rock, and over the Main Street Bridge between the two cities. The Broadway-Main Street Bridge District, BenD. Brickhouse as mayor of the city of Little Rock, and the Intercity Terminal Railway Company, intervened and filed a joint response to the petition, protesting against the granting of the permit, setting up four reasons for the protest, one of which in substance is as follows: (3). That petitioner had not obtained a license or franchise from the Broadway-Main Street Bridge District to operate busses over said Main Street bridge, which district, by virtue of the act creating it, had the exclusive authority to grant such a franchise, to regulate the traffic thereon, and to fix the rates and charges therefor; that it would be improper ■for the Railroad Commission to grant the permit to petitioner before she obtained such franchise from the bridge district.

The Railroad Commission, after hearing the evidence, entered an -order denying the petition, and an appeal was taken to the circuit court of Pulaski County, where the case was heard on February 13, 1926, upon the record made before the Railroad Commission, and the court found that it had no jurisdiction of the Broadway-Main Street Bridge District for the purpose of reviewing the action of said district, and that the order of the Railroad Commission denying the petition of plaintiff should be affirmed upon the whole record. From the judgment of the circuit court the petitioner has appealed to this court.

The act creating the Broadway-Main Street Bridge District was passed in 1919 (Sp. Acts 1919, page 74), and by § 22 it is provided: ‘ ‘ The commissioners of said district, so long as they are in charge of said bridges, or the county court after the bridges shall have been turned over to it, may permit the use of said bridges by streetcar lines, interurban lines, and other public utilities, exacting therefor a reasonable compensation.”

Section 23 provides that: ‘ ‘When said bridges have been completely paid for, they shall be turned over to the county of Pulaski, and from thenceforth shall be the property of said county.”

Said act was amended in 1923, page 1648, to read as follows: ‘ ‘ Section 1. When said bridges have been completely paid for, including all bonds, or other evidences of indebtedness issued in payment or maintenance thereof, they shall be turned over to the county of Pulaski and from thenceforth shall be the property of said county. Until said bridges are turned over to the county, as herein provided for, the commissioners shall have the right to prescribe rates for the use of the bridges for private use ■by various public service corporations, and all fees and rentals received shall be used to pay off all outstanding bonds of the district and thereby reduce the tax of the property holders of the district.”

Section 2 of that act provides: “The board of commissioners of the Broadway-Main Street Bridge District is hereby authorized, empowered and directed to charge reasonable fees for the use of said bridges by any and all persons, firms or corporations, where said bridges are used to further their private interests, such as to support gas or water lines, electric light and power lines, telephone lines and cables, telegraph lines and cables, or where the same is used by street cars or motor busses; where passengers are carried for fare, the commissioners may charge a flat annual fee, or any other fee that they may deem wise and expedient. In case of street cars and motor busses for hire, the commission, if it deem best, may charge so much per passenger, and all funds derived from such charges shall be used in retiring the bonds of the district.”

Section 3 of the act provides: “The charges as prescribed by the board of commissioners for the use of the bridges, as hereinabove set forth, shall not be subject to the jurisdiction of the Arkansas Railroad Commission, and 'the decision of the board of commissioners on all rates or charges shall be subject to review by the courts.”

Under these provisions of the statute creating the district, and the act amendatory thereof, we hold that the board of commissioners of the Broadway-Main Street Bridge District had the power to regulate the operation of motor busses and street-car lines over and across said bridges, by providing for the operation of street-car lines over one of said bridges and motor busses over the other, and prohibiting either from interfering with the other by operating over the same bridge. Pursuant to such power, the board has granted a franchise over the Main Street bridge to the Intercity Terminal Railway Company, which company has built its double tracks over said bridge at a cost of $40,000 and is paying the bridge district for its franchise $60,000. The power to permit the operation of motor busses over the Broadway Bridge and to regulate their operation, and to fix a charge for "same, is given by the acts above referred to.

The Arkansas Railroad Commission had no authority over said bridges, neither did it have the authority to grant a permit to said bus line to operate over the streets, either of North Little Rock or of Little Rock. It follows that the judgment of the Pulaski Circuit Court is right, and it is therefore affirmed.


source: Caselaw Access Project

author: McCulloch, C. J. Hart, C. J.

license: Public Domain

text:
    Kirk v. Pulaski Road Improvement District No. 10.
    Opinion delivered December 20, 1926.
    1. Eminent domain — liability for grading part of street. — Where the street in front of plaintiffs’ property was partly ungraded, an improvement district engaged in paving the street was not liable to plaintiffs for reducing to grade the ungraded portion of the street, there being no change in the grade of the street in front of plaintiffs’ property.
    2. Eminent domain — damages from excavation. — Where a road improvement district, in widening a street and extending the grade, excavated part of a high bank in front of the property, the only element of damages recoverable by adjacent property owners was the actual injury to their property by loosening the soil in blasting off the face of the embankment. .
    3. Eminent domain — damages in widening street. — In an action by property owners against an improvement district for damages by loosening the soil on his property caused by blasting in widening the street in front thereof, the measure of damages was the difference in market value of the property before and after the injury, if any, and not the cost of constructing a retaining wall or the depreciation in rental value.
    4. Eminent domain — injury to property — damages.—Every element that can fairly enter into the question of market value and which a prudent business man would consider before purchasing the property should be considered by the jury in determining the difference between the value of property before and after it was damag'ed in constructing a highway.
    5. Eminent domain — damages in widening street. — In an action by a property owner against an improvement district for damages by loosening the soil on plaintiffs’ property by blasting in widening the street, evidence held to warrant recovery of substantial damages by property owners.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      Horace Chamberlin, for appellant.

      Rose, Hemingway, Cantrell <& Loughborough, for appellee.
   McCulloch, C. J.

Appellants are the owners of two lots facing south on West Second Street, between Summit and Schiller avenues, in the city of Little Rock. They have owned these lots for many years, and there are three dwelling- houses on them, built about the year 1900. At that time the street in front of these lots had never been graded or otherwise improved. There was a downward slope from the south front of these lots to the opposite side of the street, and there was no sidewalk, but there was a pathway along in front of the houses, which was used by any one who had occasion to do so. The lots were situated in Plunkett’s Addition to the city, and when this addition was laid out and platted there was a dedication of that portion of West Second Street to a width of sixty feet. In the year 1902 the city graded the street along there to a width of thirty-two feet, which was paved with brick, and a street-car track was laid thereon. There was a curb at the outer edge of the paving, which was ten or eleven feet south of the north line of the street as originally dedicated. In other words, in grading the street there was left ungraded a space of ten or eleven feet on the north side up to the property line. The north rail of the street-car track was within about three feet of the curb line, leaving an insufficient space for the passing of vehicles between the track and the curb. In grading the street there was left, on the north side, in front of the property of appellants, a precipitous slate bank about ten feet high, and, in order to afford access to the dwelling houses, appellants provided steps set into the bank. Along the bank there was, as before stated, a pathway or trail used by pedestrians going along in front of the houses, but there was still no paved sidewalk.

In the creation of Pulaski Road Improvement District No. 10, authority was conferred upon the district to improve West Second Street, and this was done during the years 1923 and 1924. The city council passed an ordinance, just before the work of improving the street was begun, widening West Second Street in front of appellant’s property to a width of forty feet. The ordinance provided that the road improvement district should do the work of widening the street and should make good any damages sustained by property owners. The work was done by the district, and in doing so it was necessary to excavate the high bank in front of appellants’ property. This was done to a width of eight feet, leaving about three feet of the dedicated street, but the top of the slope extended, in places, slightly beyond the property line. The widening of the street was all .done on the north side, and there was a new curb line established within about three feet of the property line. As the bank sloped towards the south, the new excavation of eight feet left the slate bluff slightly higher. Appellants contended that the blasting away of the slate in excavating for the extension of the width of the street loosened the earth and rock to some extent back beyond the property line, thus invading their property, and that this caused the bank to cave or slough off from time to time, and that a retaining wall should be built in order to afford protection from that injury. They demanded that the district construct the retaining wall at its own expense, which was refused by the district, and they allege that the wall would cost about $3,500. They also allege that there was a loss of rental value of the property in the sum of $3,000, and this action was instituted by appellants against the district to recover the above sums, aggregating $6,500. There was a trial of the cause before a jury, which resulted in a verdict in favor of the district.

It is undisputed that the street in front of appellants’ property was dedicated by the original owners to a width of sixty feet, and that the widening of the street by the district in making the new improvement did not extend to the line of appellants’ property. No part of appellants’ property was taken or used in the widening of the street, the only contention being that there was damage done to the property by loosening the bank and extending the top of the slope as a result of blasting away the face of the bluff. Nor was there any change in the grade of the street in front of appellants’ property. That portion of the street which had been previously graded by the city in the year 1902 was left unchanged, and the same grade was extended to a distance of eight feet in widening the street. That part of the street had not theretofore been graded, hence there could be no liability under the statute for changing the grade. Red v. Little Rode Ry. & Elec. Co., 121 Ark. 71, 180 S. W. 220. Of course, there was no obligation on the part of the city or appellee district to build a sidewalk. The only element of recoverable damage, if any, was the actual injury done to the property of appellants in loosening the soil or slate when blasting off the face of the bluff. The issue as to this element of damage was properly submitted to the jury upon conflicting evidence, and the verdict of the jury against appellants is conclusive. The court’s instructions were as follows:

“1. If you find for the plaintiff, you will find for them for the depreciation in the market value of their' property caused by the invasion of their property line, and by the rendering of their properly line less accessible, if you find from the evidence it has been rendered less accessible by the invasion of their property line.
“2. If you find from the evidence in this case that, on account of the excavations made by directions of the defendant, the property of the plaintiff will in the future slide or crumble into the excavations, you would have a right to take that fact into consideration in determining the depreciation in the market value of the property of the plaintiffs.
“3. If you find from a preponderance of the evidence that the defendant, in widening Second Street, has invaded the plaintiffs ’ property line and has made a portion of said property useless to them by virtue thereof, and, if you find from such evidence that it has thereby deprived said properties of reasonably safe or convenient means of ingress and egress, then the court instructs you that such constitute injuries for which the plaintiffs should recover, and this is true, even though you may find that the defendant did the work of widening* 'the street in a skillful manner. ’ ’

Error of the court is assigned in submitting as the measure of damages the difference in market value of the property, if any, instead of the cost of restoration by the construction of a retaining wall, and also in refusing to submit, as a measure of damages, the depreciation of the rental value. We think the court was correct in its instruction. The injury, if any, was a permanent one, for which all the damages could and must have been recovered in one action. The injury was not recurring so as to permit separate actions from time to time as each separate injury occurred, and the difference in market value was therefore the correct measure of damages. Davis v. Dunn, 157 Ark. 125, 247 S. W. 793.

We conclude upon the whole that there was no error in the proceeding — that the issues were correctly submitted to the jury, and that the evidence was sufficient to support the verdict in favor of appellee.

Affirmed.

Opinion on rehearing, delivered February 21, 1927.

Hart, C. J.

Upon further consideration of this case, the majority of the court is of the opinion that the motion for a rehearing should be granted.

This is an action for the assessment of damages for injury to plaintiff’s property in improving a street next to her property, which is also a State highway. It is true, as stated in our former opinion, that the cost of the retaining wall is not the plaintiff’s measure of damages. The record shows that the highway commissioners, in a praiseworthy effort to satisfy the plaintiff, expended about $325 in erecting a retaining wall to protect a shade tree in her yard. The record also shows that it would cost more than $2,000 to erect a retaining* wall which would prevent the embankment of the plaintiff’s property, abutting the improved street, from further caving in. While this proof was competent to show the damage to the plaintiff’s property, it was not the measure of her damages. In cases of this sort, the owner is entitled to recover the difference between the market value of her property before the taking or damage to it and the market value afterwards. St. L. Ark. & Tex. Ry. Co. v. Allen, 41 Ark. 431, and St. L. I. M. & S. Ry. Co. v. Theo. Maxfield Co., 94 Ark. 135.

Every element that can fairly enter into the question of market value and which a business man of ordinary •prudence would .consider before purchasing the property should also be considered by the jury in arriving at the difference between the value of the property before and after the taking or damage to it. L. R. Junction Ry. v. Woodruff, 49 Ark. 381.

Tested by this rule, we think the plaintiff, under the undisputed evidence, was entitled to recover some substantial amount of damages.

Glenn D. Douglas, a civil engineer, was. a witness for the plaintiff. He.made a plat of her property showing the line of the embankment as it existed at the time of the survey. We quote from the abstract of the plaintiff his testimony as follows: “The upper line of .the embankment is over the property line and encroaches thereon. The under line is irregular and is practically outside the line — that is, south of the property line — at least this is practically so. The embankment has caved some more since I made my survey. This soil is slate or shale with an inclination to the north of approximately forty-five degrees. The encroachment on the plaintiffs’ lots by virtue of this excavation presents an irregular line and it extends onto the property from nothing to approximately two feet.

“The surface of lot 7 is from ten to twelve feet above the street level. Lot 7 is higher above the surfacé of the street than lot 6. The street opposite lot 7 between curbs is 40 3/10 feet. The curb is six inches on each side. The north curb of the street is from three to three and a half feet to the embankment-.' 'The north curb line which the district' established is about two and a-lialf feet from the plaintiff’s property line. The plaintiffs’ property can be restored to them by building a retaining wall, and there is no other way whereby they can enjoy the use and benefit of their property which has been cut away. Prom the nature of this soil, and due to the weather, the embankment ‘will gradually slough or slide away.’ ”

His testimony was corroborated by that of Mrs. Maude hi. Kirk. In addition, she stated that the embankment had caved up to the very edge of the terrace. She testified that there is always some sloughing away, which was much more when there was a hard rain.

I). A. McCrea, one of the engineers for the road improvement district, which damaged the property, testified that the caving of the embankment was the result of blasting. According to his testimony, it is almost impossible in digging out rock excavations to control the effect of the powder. The reason is that the powder will follow the seams. The average encroaching upon the plaintiff ’s property occasioned by the excavations is about six inches. It might be in some places as much as a foot and six inches back of the retaining wall, which was afterwards filled in. The retaining wall was the one which the commissioners placed around the shade tree next to the edge of the embankment abutting the street in order to protect it.

Other evidence shows that the embankment would still cave after hard rains. Thus, it will be seen that, according to the undisputed evidence, the plaintiff suffered some substantial amount of damages, and the jury failed to award her any amount.

It is probable that the jury was misled by the instructions of the court which singled out her element of damages. In any event, the testimony above abstracted is not contradicted at all. It is true that the witnesses for the defendant testified that there was no difference between the market value of the property before and after the taking and ’damage. But, as we have already seen, the testimony, which we have copied above,, establishes a state of physical facts which show that the plaintiffs suffered some substantial amount of damages. It follóws that the verdict of the jury was contrary to the evidence, and the judgment must be reversed, and the cause remanded for a new trial.

Justices Wood and Smith dissent.


author: Smith, J.

text:
    Sims v. Fisher.
    Opinion delivered January 24, 1927.
    1. Quieting title — burden of proof.' — Where plaintiff, in a suit to quiet title, claimed as heir of his father, who had received a deed from the owner to the land in question, plaintiff must prove both his heirship and that the alleged deed had been executed and delivered to his father.
    2. Quieting title — sufficiency of proof of heirship. — In a suit to quiet title, where plaintiff claimed through one to whom the land had been conveyed by the original owner, the preponderance of the evidence hetld to show that plaintiff was the son of such grantee.
    3. Quieting title — proof of lost deed. — Evidence held not sufficiently clear and decisive to establish the execution and delivery of a deed alleged to have been lost.
    Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.

      Betts & Betts, for appellant.

      Jordan Sellers and Patterson & Rector, for appellee.
   Smith, J.

Appellant brought this suit to quiet and confirm his title to a forty-acre tract of land in Union County. He alleged that his grandfather, Wade Sims, bought the land in 1902, and in 1910 conveyed it to his son Julius, who was appellant’s father. The defendants in the case are Eliza Sims, the widow of Wade Sims, who was also known as Wade Fisher, and Martha Arnold, who was the only child of Wade, except Julius. Wade Sims died in 1917, and Julius died in 1914. In their answer defendants denied that appellant was the son of Julius, and also denied that Wade Sims had ever executed a deed to Julius. After hearing the testimony of a number of witnesses, the court dismissed the complaint as being without equity, and this appeal is from that decree.

It does not appear whether the case was dismissed because the heirship of appellant was not proved, or because the execution and .delivery of a deed to Julius Sims was not established. It was, of course, essential for appellant to prove both facts, and the failure to prove either would defeat his action.

Appellant was required to show only by a preponderance of the evidence that he was the son of Julius, and we think the testimony met that burden. Nancy Sims was appellant’s mother, and she was also the mother of several other children when appellant was born, and it is claimed that these children were also illegitimate.- Nancy Sims testified, however, that they were children by a former marriage. She also testified that appellant was born August 12, 1912, and that she and Julius were married September 12,1912, and the date of her marriage was clearly established by the date of her marriage license, which was offered in evidence.

The testimony is conflicting as to appellant’s age at the time his mother and Julius were married, and he may have been born earlier than August 12, 1912, but it appears that Nancy had lived with Julius as his cook and housekeeper for about two years before appellant was born, and it also appears that Julius recognized appellant as his son. This being true, appellant was legitimatized.

Section 3474, C. & M. Digest, reads as follows: “If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate. ’ ’

We are of the opinion, however, that the relief prayed was properly denied, for the reason that the execution of the deed was not established.

Nancy Sims testified that Wade Sims agreed to execute a deed to Julius as an inducement for Julius to live on the'farm and to take eare of it and his father, and that, pursuant to this agreement; Julius built a log cabin on the farm, and moved into it in 1910, and that the deed was executed and delivered to Julius the same year; that she did not have the deed recorded, but placed it in her dresser drawer, where it remained until the night Julius died, when some one took it, and that she had not seen it since. She further testified that Eliza Sims admitted having taken the deed out of the drawer, and that Eliza told her the rats destroyed the deed.

The taxes were paid >by Julius in his own name for the years 1910, 1911 and 1912, but the land continued to be assessed in the name of Wade Sims, and this assessment was never changed on the taxbooks. Julius died in March, 1914, which was before the close of the tax-paying time for the year 1913, and the taxes for that year were paid by Wade Sims in his own name.

Wade Sims became insane, and was carried to the State Hospital, where he remained until his death in 1917, but his widow, Eliza Sims, continued to reside on the land, and now occupies it as her homestead.

Nancy Sims left the land in 1914, and has not át any time since resided on it, and does not appear to have claimed at any time that the land belonged to her son (appellant) until shortly prior to the institution of this suit.

A number of witnesses testified in appellant’s behalf, and several of them gave testimony strongly corroborative of the testimony of Nancy Sims. Among these was W. D. Webb, a white man, who brought this suit as next friend for appellant, who is a colored boy. We'bb testified that he went with Nancy to the home of Eliza to inquire about the deed, and Eliza admitted its execution, but stated that the rats had eaten it.

B. Green, who was also a white man, testified that he conducted a small’general store, and that Julius had given him a mortgage, which was never recorded, on the land to secure witness in making advances of supplies, and that, before taking this mortgage, Julius had shown him a deed, which witness did not read, which Julius stated was a deed from his father to him, and that the description of the land in the mortgage was taken from a tax receipt which Julius produced.

C. S. Cranston, who is also a white man, testified that he lived on an adjoining tract of land, and that Julius once showed him a deed, and asked the loan of $18 to pay the taxes on the land, but witness did not make the loan.

E. B. Eipley, another white witness, testified that he lived on adjoining land, and that "Wade Sims had-told him he had deeded the land to his son Julius.

Harb Burton, a colored man, testified that he was at the home of Julius about a week before Julius died, and that Julius told Nancy to look in the dresser drawer and hand him his deed. Nancy obeyed, and Julius looked over the deed, and, after doing so, said: “Well, I am going to die, but I have forty acres of land. I have paid for it, and it is yours.”

It was very clearly shown that Julius never owned any other land.

There was other testimony more or less corroborative of the testimony recited.

Nancy Sims also testified that the deed was signed by Wade Sims and Eliza Sims and a Mr. Brown, who was a justice of the peace. Mr. Brown was-dead at the time of the trial.

On behalf of defendants, Bob Nelson, a colored man, testified that he had known Wade Sims for many years; that they were neighbors and close friends, and that Wade consulted him about his business affairs. He testified that Julius worked on the railroad, and was taken sick and came home to die, and that Wade Sims built the little log house in which Julius resided and later died. That witness helped Wade Sims to get out the boards to cover the house, and bought the nails and the lumber for the floor, but never heard Wade Sims at any time refer to a deed. Julius had nothing to do with building the bouse. Julius did not make a crop in the year he died, but worked on the railroad when he worked at all.

The only witness who claimed to have read any part of the deed was Nancy Sims, and she admitted that she had not read all the deed, and did not know what land it described, nor what consideration was recited, but she testified that the deed was signed by Wade and Eliza Sims and by Mr. Brown.

Eliza Sims testified that she had never heard of this deed until a short time before this suit was commenced, and denied that she had ever signed a deed.

Without further recitation of the testimon3q we announce our conclusion to be that it does not measure up to the standard required by the law to establish a lost deed. Concerning testimony of this character it was said in the case of Wasson v. Walker, 158 Ark. 4, 249 S. W. 29:

“The alleged contract relates to and affects the title to land, it constitutes one of the muniments of title in the 'chain, and a mere preponderance of the testimony is not sufficient to establish it. Its execution and contents must be established by evidence that is clear and decisive (citing cases).”

In the more recent case of Erwin v. Kerrin, 169 Ark. 183, 274 S. W. 2, it is said:

“The rule is well established in this State, as well as b}^ the authorities generally, that the burden is upon one who claims title under the alleged lost instrument to establish the. execution, contents, and loss of such instrument by the clearest, most conclusive, and satisfactory proof (citing cases).”

As the testimony fails to measure up to this standard, the relief prayed was properly denied, and the decree will therefore be affirmed.


author: Wood, J.

text:
    American Insurance Union v. Benson.
    Opinion delivered February 7, 1927.
    1. Insurance — constitution and by-laws as part of contract.— In an action by a beneficiary on a certificate of insurance, defendant benefit society having taken over certificates of members of another society to which assured belonged, the constitution and by-laws of defendant were admissible as part of the contract of insurance, and that the members have notice of, and are bound by, the provisions of same.
    2. Insurance — notice op constitution and by-laws — estoppel.— The beneficiary in a benefit certificate, suing thereon, is estopped to deny that assured had notice of the provisions of the Constitution and by-laws of defendant where assured agreed to and signed an instrument witnessing the merger between the original insurer and defendant society, and acknowledged her contract of insurance with defendant by paying premiums to it, and where plaintiff bases his action on such merger agreement.
    3. Insurance — waiver of forfeiture. — In an action -by the beneficiary on an insurance certificate, where the defense was that the certificate was forfeited for nonpayment of premiums, evidence held sufficient to warrant finding by the jury that the policy was not forfeited.
    4. Insurance — waiver of forfeiture. — Any conduct or declaration by the insurer which leads the insured to believe that forfeiture of the policy will not be incurred estops the company from insisting on a forfeiture.
    Appeal from Calhoun Circuit Court; W. A. Speer, Judge;
    affirmed.

      T. E. Helm, for appellant.

      J. S. McKnight, for appellee.
   Wood, J.

Margaret Ritchie became a member of the Mutual Relief Union of Fort Smith, Arkansas, in September, 1916. As such member she received a certificate insuring her life in the maximum sum of $1,000, in favor of G-. B. Benson. The Relief Union was afterward merged with the Home Protective Association, and the latter association was merged with the American Insurance Union under a contract which required the holders of certificates to pay all premiums and chapter dues on or before the 20th day of each month, without notice. The payments were to be made to the cashier of the Union. The failure to pay caused the policy to lapse, and no cashier or other officer could waive the obligation to pay. The member whose certificate or policy had lapsed could be reinstated at any time within six months by making application on a printed form, attested by the cashier and forwarded to the home office, and by depositing with the cashier the unpaid premium and dues and reinstatement fee of ten cents. The reinstatement had to be approved by the medical director. There was a provision that the receipt by the cashier of the premiums or chapter dues or reinstatement fee would not have the effect of reinstating a lapsed member until his application was approved by a medical director. No provision of the contract could be waived by any of .the officers. There was a provision in the contract to the effect that the Union would not he liable to a beneficiary for more than the proceeds of one assessment of the roll to which said deceased member belonged, unless, at the expiration of the maximum period allowed to the members of said roll, said member elected to pay to the Union the regular rate for carrying said member for the full amount of the certificate. Mrs. Ritchie paid her dues until September, 1923, which was the maximum period for increase in her payments, and, under the contract, she had the right at that time to elect to pay an increased premium of $4.70 per month, which would entitle her beneficiary, at her death, to the full amount of her certificate. Mrs. Ritchie died April 2, 1924. This action was instituted by Gr. B. Benson, beneficiary in the certificate, against the American Insurance Union. He alleged that the defendant was liable for the full amount of the certificate, under the contract of merger by which it took over the certificate of Mrs. Ritchie. In its answer the Insurance Union denied that it was liable under the contract for any amount, but, under no- circumstances, for more than the proceeds of one assessment of the members of the roll to which Mrs. Ritchie belonged.

Benson testified, and introduced the certificate issued to Mrs. Ritchie. Mrs. Ritchie died April 2, 1924. The policy was in force at the time of her dea,th. The secretary of the defendant notified witness when the assessments were due, and they were always paid. The assessment for October, 1923, was paid. $1.43 was the amount to be paid on the policy every month. The witness introduced cards from the defendant which showed that $1.43 was received for September, 1923, and $1.43 over, which was held as a credit to her account “pending choice of options upon reaching the maximum rate in September, 1923.”

On April 24, 1923, the defendant wrote Mrs. Ritchie that her next premium would not be due until October 1, 1923, and that it was returning money order for $1.43. On January 11, 1924, the defendant wrote her that she had several options, designating them, under her contract with the defendant, one of which was a whole life level rate policy, on which the premium at her age would be $4.70, payable monthly, and the first would be due October 1. The letter concluded by stating: “When you make choice of -a policy on which you wish to continue your insurance and pay the stipulated premium thereon and chapter dues, your protection will be worth every dollar agreed upon, and your membership and insurance will be on an equality with all other members of the American Insurance Union.” When witness received this letter, he sent them, on January 16, 1924, $4.80. They held this cheek from that date until April 18, 1924. On March 31, 1924, the defendant wrote Mrs. Ritchie, in which letter she was notified that it would require $30.90 to cover her premiums through the month of April on the standard step rate, and $7.06 to cover her premiums on the maximum rate. In this letter the defendant asked her to advise regarding the option, and send remittance at the earliest possible moment. Two days thereafter witness sent defendant a check for $30.90, the amount defendant asked the assured to send.

On cross-examination the witness identified a letter written to the assured on February 18, 1924, stating “if it is your desire to have this policy placed in good standing on our records, it will be necessary to give this matter your prompt attention.” The witness further stated, in answer to questions, that he had $1.43 in the hands of the defendant; that he sent them $4.80 on January, and $30.90 the day after Mrs. Ritchie was buried. On redirect examination witness stated that the defendant kept his money ninety days' before returning it; that the assured did not receive the pption for the new policy until in January, and later she received a letter stating she owed $30.90, and witness sent that; that he always sent what they requested. The defendant never- wrote anything about reinstatement; after the defendant wrote that the assured was paid up to October 1, and said at the proper time it would give the option to take the policy and would send the papers on October 1, and did not do it, witness wrote defendant two letters about it. On April 18, 1924, the defendant wrote the assured the following letter: “As your application for reinstatement has been rejected by our medical director, we are returning herewith two checks, one under date of January 17 for $4.80, the other dated April 4, for $30.90. These remittances have been held in our pending file awaiting the consideration of the application for reinstatement.” Witness further testified that he notified defendant by letter of the death of Mrs. Ritchie the next day after she was buried, and requested it to send him blanks on which to make proof. Witness’ letter was properly stamped and mailed; witness did not receive any response.

The court refused to permit the defendant to introduce its constitution and by-laws in evidence, to which ruling the defendant duly excepted. The secretary of the defendant testified, among other things, that no proofs of death were made out and filed by the beneficiary. He stated that checks, aggregating $35.70 were mailed to the defendant April 4, 1924, two days after the member’s death, which were returned with the statement that the application'for reinstatement had been rejected by the medical director. The witness testified in September, 1923, Margaret Ritchie reached the maximum assessment, and the level premium basis being $1.43 would purchase $200.84 had she been in good standing when she died. She had failed to make a choice of options in September, 1923, and automatically went upon the level premium basis. »

The cashier of the defendant testified to the same effect. She failed to pay anything after September, 1923, was suspended for nonpayment October 20, 1923,' was never reinstated, and was not a member at the time of her death. Attached to the deposition of the secretary of the defendant and made exhibits thereto were the contracts of merger between the defendant and the Protective Association of Springdale, Arkansas, and also the rider and contract between defendant and Mrs. Ritchie. Under this rider and contract the certificate holders agreed to make their payments, comply with the constitution and by-laws of the defendant, and the defendant agreed to assume the liability under the certificate. Among the exhibits is an application for reinstatement showing that Mrs. Ritchie’s certificate lapsed in the month of October, 1923, and answering all the questions therein in favor of reinstatement, showing that she was in good health, etc., at the time of the application. The application for reinstatement is dated January 17, 1924, signed by Margaret Ritchie, and gives her address as Hampton, Arkansas. At the close of the application for reinstatement is the following certificate: “This is to certify that the above signature was written by the applicant in my presence and that he has deposited with me unpaid premiums and dues, including a reinstatement fee of ten cents, amounting in all to $37.75. I do recommend this applicant for reinstatement.” Signed C. L. Jordan, cashier.

The court instructed the jury, in effect, that, if they believed from the testimony that the policy of Mrs. Ritchie lapsed for the nonpayment of dues October 20, 1923, nevertheless if the defendant, by the acts and conduct of its officers, led Mrs. Ritchie to believe that the policy had not lapsed or forfeited, and that she, acting upon such belief, incurred expenses or trouble on account of the nonpayment of premiums or assessments, then the defendant waived its right to claim a forfeiture in this action; and if the jury so found, their verdict should be in favor of the plaintiff in th'e sum of $1,000. The defendant asked the court, in its prayer for instruction No. 1, to instruct the jury to direct a verdict in its favor, and its prayer for instruction No. 2 told the jury that, if they found that Mrs. Ritchie was suspended for nonpayment of dues on October 20, 1923, and failed to comply with the laws and requirements of the defendant before her death on April 3, 1924, their verdict should be for the defendant. The court modified the defendant’s prayer for instruction No. 2 by adding thereto the following: “provided you further find that the said forfeiture was not waived by the defendant,” and granted the prayer as modified. The court refused appellant’s prayer for a directed verdict. The appellant duly excepted to the rulings of .the court in the giving and refusing prayers for instruction. The jury returned a verdict in favor of the plaintiff in the sum of $1,000, with interest at the rate of six per cent, from June 2, 1924. Judgment was entered in favor of the plaintiff for that sum, from which judgment the defendant duly prosecutes this appeal.

1. Learned counsel for the appellant contends that the court erred in excluding the constitution and by-laws of the appellant from the jury. 'Counsel are correct in this contention. In the merger contract between the appellant and the Home Protective Association, entered into on November 1,1918, by which the appellant assumed liability to the certificate holders of the Home Protective Association, among whom was Mrs. Ritchie, was the following provision: “It is hereby understood and agreed that the members hereby consolidated shall be subject to the constitution and laws of the American Insurance Union now in force, or that may hereafter be in force, except as herein otherwise provided.”

It is alleged in the answer of the appellant that “a rider and contract of consolidation between the Home Protective Association and the appellant was sent to Mrs. Ritchie and duly signed by her, and afterwards sent to the appellant; that, in this receipt, Mrs. Ritchie agrees that the rider and contract shall be attached to and form a part of her certificate and contract of insurance of the appellant “under the terms and conditions set forth in said rider and contract.” While the appellant does not prove the above allegation of its answer, the appellee is not in an attitude to deny that Mrs. Ritchie received and signed the receipt containing the rider and contract of consolidation between the appellant and the Home Protective Association and that such contract was a part of her certificate and contract of insurance with the appellant.

The testimony of the appellee proves conclusively that the rider and contract were received by Mrs. Ritchie and agreed to by her, because she continued, after the merger agreement, as the appellee asserts and as the testimony and correspondence between Mrs. Ritchie and appellant shows, to pay her premiums to the appellant and to thus acknowledge that her contract of insurance was with the appellant. The appellee bottoms his action against the appellant on the ground that, under the merger contract, the appellant had assumed the liability on her policy of insurance. The cause, in this particular, is ruled by the recent case of Knight v. American Insurance Union, ante, p. 303, where we said: ‘ ‘ The conclusion is irresistible that the assured member did receive the rider, for he continued, after the merger contract until his death, to pay the assessments to the appellee. The undisputed testimony therefore justified the trial court in finding that Horace Knight, the assured member, received a copy of the consolidation contract and accepted its provisions. The appellant predicated his cause of action upon such contract, and, having accepted the same, he is bound by its terms.”

This court is committed to the doctrine that the constitution and laws of a fraternal benefit society are a part of the contract of insurance and that the members or certificate holders of such society have notice of and are bound by the provisions of the same. See § 6076, C. & M. Digest; Sov. Camp W. O. W. v. Barnes, 154 Ark. 486, 246 S. W. 55; Sov. Camp. W. O. W. v. Newman, 142 Ark. 132, 219 S. W. 759, 14 A. L. B. 903, and other cases cited in appellant’s brief. To eliminate the error we have stated the contract of insurance upon which the appellee based his right of action as though it were a contráct of insurance with the appellant, embracing the provisions of the latter’s constitution and by-laws, and, in our consideration of the case, have given the appellant the benefit of these provisions. The question then is, was appellee entitled to recover when the contract is so'treated?

2. This brings us to a consideration of appellant’s second contention, “that the certificate had lapsed and all rights thereunder forfeited.” The issue as to whether or not the policy was forfeited because of nonpayment of premiums or dues was submitted to the jury under correct instructions. The material testimony bearing on this issue is set out above. Giving this testimony its strongest probative force in favor of the appellee, it was certainly sufficient to warrant the court in refusing to declare as a matter of law that the policy was forfeited, and was sufficient to warrant the finding by the jury that the policy was not forfeited, and to sustain the verdict in favor of the appellee. The testimony of appellant’s secretary and also of its cashier was to the effect that Mrs. Bitchie defaulted in the payment of her installment dues for the month of October, 1923, in the sum of $1.43, and she was suspended because of such failure on October 20, 1923; that she was never reinstated under the constitution and by-laws of the company and that, if she had been in good standing at the time of her death, the value of her certificate would have been $200.84, under the constitution and laws of the appellant and the rider and merger contract by which she was bound.' The jury might have found that all these contentions were effectually refuted, not only by the testimony of the appellee but likewise by the certificate of appellant’s cashier, C. L. Jordan, which was made an exhibit to appellant’s depositions, introduced in evidence, referred to in appellant’s abstract and found in the record at pages 103 and 104. This document was designated “Application for Reinstatement” of a policy which, it states, lapsed in the month of October, 1923. It is dated January 17, 1924, and is signed by Margaret Ritchie and certified to by appellant’s cashier as follows: “This is to certify that the above signature- was written by the applicant in my presence, and that she has deposited with me unpaid premiums and dues, including a reinstatement fee of ten cents, amounting in all to $37.75. I do recommend this applicant for reinstatement.” There is no testimony in the record to the effect that this amount of money was ever returned to Mrs. Ritchie. If the above certificate stated the truth, then Mrs. Ritchie, at the time of her death, had in the hands of the appellant more than enough money to pay the premiums due on a whole life level-rate policy from October to April, inclusive. Having this money in its hands from January 17, 1924, until after April 2, 1924, when Mrs. Ritchie died, a period of nearly three months, without returning the money and notifying Mrs. Ritchie that the appellant would not reinstate her policy, but would insist on a forfeiture thereof, appellant, by such conduct, must be held to have waived the forfeiture, and is estopped from claiming non-liability on the policy.

There were conflicts in the testimony, which it was the province of the jury alone to reconcile. The undisputed testimony shows that, when the appellant declared the forfeiture of the policy, October 20/1923, it had in its hands sufficient money to pay the premiums due at that time, and its own correspondence tends strongly to prove. that it did not intend to insist upon a forfeiture of the' policy, but, on the contrary, was urging Mrs. Ritchie to exercise her option as to which form of insurance she would finally accept. This was the situation at the time of her death. Appellee’s testimony tends to prove that he complied with every request of the appellant to remit premiums, sending in the entire amount that appellant advised him was due, and that Mrs. Ritchie had paid, and was willing to pay at any time, a sufficient amount to prevent a forfeiture of the policy, if appellant had indicated that such was its intention. Appellant delayed making known its purpose to insist upon a forfeiture of the policy until after the death of the assured. Under the facts as the jury might have found them from the testimony in this record, the appellant must be held.to have waived the forfeiture. The facts bring the case within the general doctrine announced in many of our cases as follows: “Forfeitures are not favored in law, and courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conform-ity on his part, will estop, and ought to estop, the company from insisting, on a forfeiture, though it might be claimed under the express letter of the contract. * * * As is said in 14 R. C. L. 1181, § 357, ‘waiver of a forfeiture, though in the nature of an estoppel, may be created by acts, conduct, or declarations insufficient to create a technical estoppel, and the courts, not favoring forfeitures, are inclined to grasp any circumstances which indicate an election to waive a forfeiture’.” American Life Assn. v. Vaden, 164 Ark. 75, at page 88, and cases there cited.

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


text:
    Nelson v. Missouri Pacific Railroad Company.
    Opinion delivered February 14, 1927.
    1. Appeal and error — test of sufficiency of evidence. — In testing the legal sufficiency of evidence to support a verdict, the Supreme Court gives to the testimony which tends to support it its highest probative value.
    2. Evidence — weight of party’s testimony. — The positive testimony of an interested party will not be treated as undisputed. ,
    3. Appeal and error — conclusiveness of verdict. — The verdict of a jury upon conflicting testimony is conclusive.
    4. Railroads — killing of dog — instruction.—In an action for damages for killing a dog by a railroad train, refusal of an instruction that, if the dog was killed by the train, it is immaterial what part of the train killed it, was proper where it was an issue of fact whether the dog was struck /by a train or had run under the train.
    5. Railroads — killing of dog — instruction.—In an action for damages for killing of a dog by a railroad train, an instruction that, if the dog ran under the train after the engine had passed, the railroad company would not liable, held proper.
    Appeal from Jackson Circuit Court; Dene H. Cole-, man, Judge;
    affirmed.

      E. F. Duncan, for appellant.
    • Thos. B. Pryor and PL. L. Ponder, for appellee.
   Smith, J.

This is an action to recover damages on account of the alleged negligent killing of a dog, the property of appellant, plaintiff below. There was a verdict and judgment in favor of- the defendant railroad company, and this appeal is prosecuted to reverse that judgment. This is the second appearance of the case in this court, the opinion on the former appeal being found in 160 Ark. at page 568, 255 S. W. 10.

At the trial from which the first appeal came the court had given, over the plaintiff’s objection', the following instruction: “The burden of proof is upon the plaintiff to show that the employees of the defendant, in charge of the engine pulling the train which killed a dog, carelessly, negligently or willfully ran over the dog, before you would be authorized to find for the plaintiff.” The court had refused to give, at plaintiff’s request, an instruction to the effect that proof that the dog was killed by the running of the train made a prima facie case of negligence and imposed upon the railroad company the burden of showing that it had not negligently killed the dog. It was held on the former appeal that the refused instruction should have been given, and that the instruction given was erroneous. >

Upon the remand of the cause, instructions were given which conformed to the opinion on the first appeal, and the only question presented on the appeal now before us is whether the testimony on the part of the defendant was sufficient to overcome the statutory presumption of negligence.

Charles Nelson, a witness for the plaintiff, testified that he was picking cotton on the railroad right-of-way about ten yards from the track. That the train whistled for the crossing, but did not whistle for the dog. Witness saw the dog going towards the track, and in some .weeds near the track, just before the train passed, but did not see the train strike the dog. Witness looked for the dog after the train passed, and, not seeing it, went down the track, and found that the dog had been decapitated, and that its body was on one side of a rail and its head on the other.

Plaintiff, testifying in his own behalf, stated that the dog was in front of the train, and, when he saw that the dog was about to be struck, he turned his head to avoid seeing it killed. The train which killed the dog was identified by plaintiff as a long through freight train, known as the “Red Ball,” and the engineer and fireman in charge of this train on the day the dog was killed both testified that they did not strike a dog on that trip. It is true,, they admitted they had no independent recollection of what happened that day, except as their recollection was refreshed by the trip report which they were required to make and had made. They had examined their reports and found that they had not reported the killing of a dog, but they testified that they would have reported the killing of a dog- had they been aware of that fact.

The engineer was positive that the engine had not struck a dog, as he had kept a constant lookout, although he could not say whether some other part of the train had done so. The Red Ball train carried forty-five to fifty cars, and one of the rear cars could have struck the dog without witness knowing it. The fireman was equally as positive that the engine had not struck a dog.

In testing the legal sufficiency of the evidence to support the verdict, we give the testimony which tends to support it its highest probative value, and, when this is done, we are unable to say that the jury was not warranted in finding that the railroad company was not guilty of negligence. It is true, plaintiff himself testified that he saw the dog in front of the train, but the jury evidently did not credit this testimony. As this witness was party plaintiff, it cannot be said that his evidence must be treated as undisputed. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. 52, 12 Ann. Cas. 243. Moreover, plaintiff’s testimony is contradicted by that of the engineer, who stated that he was keeping a lookout, and did not see the dog. The jury has passed upon this conflict, and the verdict is decisive of the question.

Plaintiff requested the court to give an instruction reading as follows:

“You are further instructed that, if you find from a preponderance of the evidence in this case that the plaintiff’s dog was killed by the defendant company’s train, it is immaterial as to what part of'the train killed the dog. ’ ’

This instruction was refused, and the court charged the jury, on the contrary, that, if the dog ran under the train after the engine had passed it, the railroad company would not be liable.

No error was committed in giving one and refusing the other of these instructions. They must be read in the light of the facts to which they were applied. The issue of fact was whether the dog was struck by the engine or had run under the train. If the engineer told the truth, he was keeping a lookout, and did not see the dog, possibly because it was in the weeds where the witness Charles Nelson last saw. it alive when the engine passed it, and there was no liability. Under these circumstances it would not do to say that it was immaterial that cars following the engine killed it, for no lookout, however constant or effective, could have prevented the dog from running under the train. To hold otherwise would render a railroad company liable for any animal killed, regardless of the circumstances under which it was killed, and the law has never been so declared.

As no error appears, the judgment must be affirmed, and it is so ordered.*


author: McCulloch, C. J.

text:
    Connell v. Pioneer Cooperage Company.
    Opinion delivered February 7, 1927.
    Taxation — landowner paying taxes on timber separately owned.— Where, at the time of assessments of taxes, the owner of land also owned the standing timber, the land and timber were properly-assessed jointly, and a subsequent purchaser of the land, apart from the timber, who voluntarily paid the taxes on both land and timber, cannot recover the proportionate amount of the taxes on the timber from the purchaser thereof, either under or independently of Crawford & Moses’ Dig., §§ 9940-1, which authorize separate assessments of land and timber only where timber rights are held by another than the landowner.
    Appeal from Conway Chancery Court; John E. Martineau, special Chan'cellor;
    affirmed.

      Strait & Strait, for appellant.

      Edward Gordon, for appellee.
   McCulloch, C. J.

Appellant is the owner of certain lands situated in Conway County (exclusive of the standing timber thereon), and appellee, Pioneer Cooperage Company, is the owner of the timber, both having purchased from the same grantor, who was the owner of the unseparated land and timber. Each of the parties purchased from Morgan, the owner, after the taxes for 1924 had been duly assessed and extended on the tax-books for payment of State and county taxes and road improvement taxes, but before same became payable, on the first Monday of January, 1925. There was no separate assessment of the timber for that year, and the taxes on the land, including the timber, were paid as assessed by appellant, who instituted this action in the chancery court of Conway County against said appellee, alleging that the timber is far more valuable than the land, and praying for an accounting of the proportionate amount of taxes on the timber, and that decree be rendered against appellee in favor of appellant for recovery of the amount of such proportionate part of the taxes. The court sustained a demurrer to the cbmplaint, and, upon dismissal of the complaint, appellant has duly prosecuted this appeal.

This action is predicated upon the statute which provides for separate assessment of land and timber when owned by different persons. The statute reads as follows:

‘ ‘ Section 9940. When the timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, firm or corporation, and the fee simple in the land by one or more persons, firm or corporation, it shall be the duty of the assessor, when advised of the fact, either by personal notice or by recording of the deeds in the office of the recorder of the county, to assess the timber rights in said lands separate from, the soil and to the owner of said timber right, and said soil shall be assessed to the owner thereof. And in such ease a sale of the timber rights for nonpayment of taxes shall not affect the title to the soil itself, nor shall a sale of the latter for nonpayment of taxes affect the title to the timber rights.
“Section 9941. It shall be the duty of the assessor to assess said timber rights with a description of the land on the real estate taxbooks; and said assessment shall be marked ‘timber,’ and, upon the nonpayment of taxes so assessed against said timber, the same shall be advertised with a description of the land as ‘timber,’ giving the character or kind of such timber, in some newspaper, as now provided by law for nonpayment of taxes on land, and said timber shall be sold as now provided by law for the sale of delinquent lands.” Crawford & Moses’ Digest.

We are of the opinion that the court was correct in sustaining the demurrer, for the remedy sought by appellant is one purely of statutory creation, if it exists at all, and we do not find that the statutes referred to provide for recovery under circumstances set forth in the complaint. In other words, the statute does not authorize separate assessment of standing timber and collection of taxes thereon except in cases where “the timber rights in any land shall, by conveyance or otherwise, be held by one or more persons, firm or corporation and the fee simple in the land by one or more persons, firm or corporation * *

According to the allegations of the complaint, the joint assessment against the land and timber was correct, for there had not been a separation of the timber rights from the ownership of the soil. The situation did not come within the operation of the statute, and appellant is without remedy to recover taxes which he voluntarily paid on the land and timber. The appellant would have no remedy independent of the statute, and, since we find his case does not fall within the statute, he is without remedy.

Affirmed.


author: Smith, J. Smith, J.

text:
    Chicago Mill & Lumber Company v. Drainage District No. 17.
    Opinion delivered February 14, 1927.
    1. Drains — cost of improvement — interest.—The Legislature may provide that interest shall not be taken into account in determining whether the cost of a proposed improvement will exceed the betterments.
    2. Drains — increase of levy rate. — Under Acts Extra Sess. 1920, No. 305, amending Acts 1917, p. 485, organizing Drainage District No. 17 of Mississippi County, and authorizing the commissioners to levy such rate as is deemed necessary to construct and pay for the improvement, the commissioners had power to increase the percentum of betterments to be collected in any one year.
    3. Mandamus — compelling court to make levy. — Under act No. 305 of Extra Sess. of 1920, amending Acts 1917, p. 485, making the commissioners of the drainage district fiscal agents of such district, it is their duty to ascertain the requirements of the district in the way of taxation, in order to meet the obligations of the district, and to call on the county court to make the necessary levy, and such court may, by mandamus, be compelled to make the levy.
    4. Drains — excessive levy. — An anticipated surplus of $3,115 from a tax levy in a drainage district held not excessive, in view of the magnitude of the district and the large requirements to meet its obligations.
    5. Drains — levy based on estimated delinquencies. — An estimated requirement based on anticipated delinquencies was not speculative or unreasonable where the estimate was based on actual delinquencies for the previous year.
    6. Drains — reasonableness of levy. — The levy of a proposed increased rate against a drainage district, based on anticipated delinquencies, held not to result in imposing a greater burden on landowners who pay such rate than on the delinquent lands, since the revenues eventually to be obtained from the delinquent lands will be available for payment of the district’s obligations.
    Appeal from Mississippi Circuit Court, Chickasawba District'; G. E. Keck, Judge;
    affirmed.

      W. B. Satterfield and Little, Buck & Lasley, for appellant.

      Chas. Ü. Frierson, for appellee.
   Smith, J.

Drainage District No. 17 of Mississippi County was organized by special statute (Acts 1917, volume 1, page 486), and. embraced, a large part of both the Chickasawba and Osceola districts of that county. Pursuant to the authority conferred by this act, serial bonds running from the year 1919 to 1942, inclusive, were issued by the district, aggregating $1,682,500. The betterments to the real property in the district were assessed at $4,190,868.41, and taxes thereon were levied in twenty-four installments for the years 1919 to 1942, inclusive. The first four installments were fixed at 2.3 per cent, of the assessed betterments, and for the remaining nineteen years the annual installments were fixed at 3.6 per cent, of the benefits. These annual installments aggregated 81.2 per cent, of the benefits. The levy of the taxes against the benefits was sufficient to take care of the principal and interest of the bond issue, the interest amounting to $1,394,649.20.

This special act was amended at the extra session of the General Assembly of 1920 by act No. 305, approved February 23, 1920. The amendatory act enlarged the district and cured all defects in the proceedings leading up to the organization of the district, confirmed all judgments, assessments and contracts, and removed the limitation on the cost of the improvement, and made all betterments bear interest at the rate of six per cent., and provided that interest on the bonds should not be considered as a part of the cost of the improvement, and should be collected in addition to the benefits.

Pursuant to the authority conferred by the amendatory act, plans were prepared to afford drainage to what is known as the Big Lake area, and certain other changes in the plans were made and benefits were reassessed. Bonds dated August 2,1920, aggregating $2,300,000, were issued in addition to those previously issued. Taxes were levied on the changed and corrected benefits to take care of the principal and interest on both issues of bonds maturing after that date.

The taxes were then levied in twenty-two annual-installments for the years 1921 to 1942, both inclusive. The installments for the years 1921 and 1922 were fixed at 5 per cent.; for the years 1923 and 1924 at 6 per cent.; for the year 1925 at 6.6 per cent.; and for the years 1926 to 1942, both inclusive, at 7% per cent. The tax rate for 1921 was reduced from 5 to 4 per cent., and for the years 1923 and 1924 it was increased from 6 to 7 per cent.

The district filed a petition in the county court, praying an increase in the rate for the year 1925 to 7.7 per cent., and alleged that it was necessary to increase the tax rate because of a large delinquency of the lands in the district. At the time this petition was filed no default had occurred in the payment of principal or interest on either bond issue.

The appellant, Chicago Mill & Lumber Company, which owns a large body of land in the district, intervened, and was made a party defendant, and filed an answer denying the authority of the court to make an order increasing the tax rate previously fixed. At the hearing in the county court the order prayed was granted, and the intervener duly prosecuted an appeal to the circuit court. Upon the hearing of this appeal the order of the county court was affirmed, and this appeal is from that judgment.

Proof was ottered showing that the annual increase in delinquencies had in 1924 reached $71,738.69, the principal part of which was in the Big Lake area. It was shown that a total of 14,000 acres of land had been returned as delinquent, of which 8,000 acres had been sold to the district in proceedings to enforce payment of the drainage tax. The showing was made that the taxes for the year 1924 were on a 7 per cent, basis and produced revenues of $339,724.04, and it was further shown that, if the rate were increased to 7.7 per cent., as prayed, a total revenue of $363,990 would be produced if all taxes were paid, but it was estimated by the commissioners of the district that a delinquency total of 20 per cent, would likely occur. It was also shown that during the year 1925 bonds and interest thereon totaling $310,875 would mature, and, if the anticipated delinquencies occurred, there would be an excess of revenues over requirements of only $3,115.

The court made no finding of fact, for the reason stated that the facts were undisputed, 'but did make the following declaration of law: “Under the facts in this case, the drainage district is entitled to increase the tax rate as petitioned for herein. The county court had authority to order said increase under the acts of the General Assembly under which said district was created, and the order of the county court is affirmed. ’ ’

The appellant lumber company requested the following declarations of law, all of which were refused, to which ruling of the court exceptions were duly saved:

“No. 1. The drainage district has not shown that the original levy of taxes is insufficient to meet the costs of the improvement, and, until it does do so, the county court has no authority to increase the tax rate.
“No. 2. Under the law creating the district, each tract of land must bear its just proportion of the costs of making the improvements in said district; that the order of the county court made herein in which this appeal is taken is based upon an anticipated insufficiency of the revenue arising from the levying of taxes to meet the maturity of principal and interest of bonds, and that, if said order stood, it would result in the lands which have been paid upon each year bearing a greater burden than other lands in the district permitted to go delinquent.
“No. 3. Drainage district has not shown, under the proof herein, that it was entitled to the relief prayed for, and that the county court was without authority to make an order increasing the tax rate. ’ ’

We think the declarations of law requested by counsel for appellant are all answered adversely to its contention in the cases of Oliver v. Whitaker, 122 Ark. 291, 183 S. W. 201; Pfeiffer v. Bertig, 141 Ark. 531, 217 S. W. 791; Skillern v. White River Levee District, 139 Ark. 4, 212 S. W. 90; Massey v. Ark. & Mo. Highway District, 163 Ark. 63, 259 S. W. 387; Griffin v. Little Red River Levee District, 157 Ark. 590, 249 S. W. 16; and Faulkner Lake Drainage District v. Williams, 169 Ark. 592, 276 S. W. 604.

The effect of these cases, as applied to the facts of the instant case, is that the Legislature may provide that interest shall not be taken into account in determining whether the cost of a proposed improvement will exceed the betterments, and if it be true, as contended by counsel for appellant, that the original act did not so provide, the amendatory act very clearly did, and, as has been frequently decided, this is a matter wholly within the control of the General Assembly.

Upon the question of the power of the board of commissioners to increase the rate per centum of the betterments to be collected in any one year, it may be said that both acts confer power and impose the duty upon the commissioners to levy such rate as is deemed necessary to construct the improvement and pay for it, the only limitation in this respect being that not more than ten per cent, of the betterments shall be collected in any one year if any landowner objects thereto.

Under the act creating appellee district, as under the act construed in the case of North Arkansas Highway Improvement District No. 2 v. Rowland, 170 Ark. 1168, 282 S. W. 990, the commissioners are made the fiscal agents of the district. It is their duty to ascertain what the requirements of the district in the way of taxation are to meet the obligations of the district, and to call upon the county court to make the necessary levy, and the court might, by mandamus, háve been compelled to make the levy. The case last cited so expressly decided.

It was said in that case that:

“We do not mean to hold that, if it were shown in a proper proceeding that the commissioners of the district were levying taxes unnecessarily, the taxpayers would be without remedy to prevent this from being done.”

But we think no abuse of discretion was shown here. It was a proper matter for the exercise of the discretion vested in the commissioners to ascertain and declare the probable requirements of the district to meet its obligations as they matured. In view of the magnitude of this district and the large requirements to meet its obligations, the anticipated surplus of $3,115 cannot be regarded as excessive or unnecessary. It is true this estimated requirement is based upon anticipated delinquencies, but that estimate is based upon the actual delinquency for the previous year, and cannot therefore be said to be either speculative or unreasonable.

We conclude therefore that the court ibelow was wholly warranted in refusing appellant’s declaration of law that the district had not shown that the original levy of taxes was insufficient to meet the cost of the improvement.

The contention of appellant, expressed in its second request, that the levy of the proposed rate would result in requiring it and other landowners who had paid and who continued to pay their taxes to bear a greater proportionate burden than that imposed upon the lands which were allowed to go delinquent, is answered in the Rowland case, supra, and in that of Arkansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355. It was pointed out in those cases that the lien of the district continued until the taxes were paid or until the lands themselves were acquired by the district through sales for the nonpayment of the taxes, and that, when the delinquent taxes were paid, they became available and should be used in paying the obligations of the district, and further, that, if the lands were sold to the district and not redeemed, then the entire value of the lands to be realized by a sale thereof would be available for this purpose. So that, while a delay would be entailed in obtaining and applying revenues from the delinquent lands, these revenues would finally be obtained and applied, and thus no unequal burden would be imposed. Upon this feature of the question the case of Turley v. St. Francis Rd. Imp. Dist. No. 4, 171 Ark. 939, may be cited.

We think it sufficiently appears, from what has been said, that the district was entitled to the relief prayed, and that the county court had the authority to make the order increasing the tax rate, and the judgment of the circuit court to that effect is accordingly affirmed.

REHEARING OPINION.

Smith, J.

In the brief filed by counsel for appellant in support of its petition for rehearing certain questions are discussed which we think are concluded by the original opinion in the case.

It is insisted that we did not discuss the question of the priority of the first bond issue over the second issue of bonds, and that a condition may arise through delinquency of payment of taxes when this question will be of paramount importance.

We purposely refrained from discussing this question, as we do not think it properly arises on this appeal. The bondholders are not before the court, and appellant is being required to pay only a per cent, of the betterments against its lands which is authorized by law. The limitation of taxation to the amount of its betterments is its protection, as this cannot be exceeded in any event. The principle of uniformity is fully preserved, as is shown in the original opinion.

The petition for rehearing is therefore overruled.


author: Humphreys, J.

text:
    Farmers’ & Merchants’ Bank v. Hammond.
    Opinion delivered February 21, 1927.
    1. Wills — estate in fee. — Where a will expressed a desire to divide the real estate of the testatrix equally between her son and her granddaughter and provided that the latter should take the land devised to her “to her sole and separate use, benefit and enjoyment, free from all debts, contracts and liabilities of any husband that she may have,” held that the granddaughter took a fee simple.
    2. Wills — construction—vesting of estates. — In construing wills, courts favor the early vesting of estates and carrying out the intention of testators, if not at variance with recognized rules of law.
    3. Wills — defeasible fee simple. — Where a will devised a fee simple to the granddaughter of the testatrix, but provided that, if she should die leaving no child surviving, the property should go to certain remaindermen, held, that the granddaughter took a defeasible fee simple.

      4. Estoppel — by deed. — Where a will devised land in fee to a granddaughter, but provided that, if she should die, leaving no child surviving, the land should go to certain remaindermen, the latter, by executing deeds to the granddaughter, are estopped from defeating the title upon the remote contingency of the death of such granddaughter leaving no children, where improvements were made upon the faith of such deeds.
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      E. L. Westbroohe, Jr., E. L. Westbroohe, Maim & McCulloch, for appellant.

      Daggett & Daggett, for appellee.

      Compare Combs v. Combs, post, p. 1073 (Reporter).

   Humphreys, J.

This is a suit by appellants, owners of separate notes evidencing the balance of the purchase money for the Battle Ax Plantation in Lee County, Arkansas, to foreclose a mortgage lien given to secure said notes by B. F. Hammond, Sr., C. T. Chandler and R. D. Jarrett to C. E. Daggett, trustee for Logan, Ward & Company, a Kentucky corporation, which had conveyed the plantation to Hammond, Chandler and Jarrett in September, 1919.

Appellees., C. T. Chandler and R. D. Jarrett, filed an answer and cross-complaint, alleging that Logan, Ward & Company had only a life estate in said plantation, it holding through mesne conveyances dating back to June 19, 1878, on which date Grizelle T. .McKinney, by will, a copy of which they filed, gave to her granddaughter, Courtney McKinney Mitchell (now DeSaussure) a life estate in the plantation, with remainder over to others; that the covenant of warranty in the deed from Logan, Ward & Company to Hammond, Chandler and Jarrett had been broken, resulting in damage to them in the sum they had paid on the purchase price.

The canse was submitted to the court upon the pleadings and testimony, which resulted in a finding that Courtney McKinney Mitchell (now DeSaussure) acquired a life interest only under the will of her grandmother, Grizelle T. McKinney, and that, by reason of this fact, there had been a failure or breach of the covenant of warranty in the deed of Logan, "Ward & Company to appellees, Hammond, Chandler and Jarrett, and that Chandler and Jarrett, the cross-complainants, were entitled to a judgment against J. W. Ward, a stockholder in the corporation of Logan, Ward & Company, for a breach of covenant of warranty by said corporation; that appellants, J. T. Robertson and P. B. Benham, who were intervening plaintiffs below, had not purchased their notes in due course for value without knowledge of the defense interposed by Chandler and Jarrett; that all of the appellants, except the interveners, were entitled to a decree against the life estate of Hammond, Chandler and Jarrett in the plantation for the amount of their respective purchase money notes. A decree was rendered in accordance with the findings of the trial court, from which all the parties have prosecuted an appeal to this court.

We have confined ourselves to a very brief as well as general statement of the case, because learned counsel for appellees have agreed, in order to simplify the issues, that, if said appellees acquired, through mesne conveyances dating back to and including the will of G-rizelle T. McKinney, a fee simple title to the plantation, then the decree of. the chancery court is erroneous, and appellants are entitled to a judgment for the full amount claimed and to a decree foreclosing the entire estate in the plantation to pay same. The sole question presented therefore for determination on this appeal is whether, under Mrs. McKinney’s will, Mrs. DeSaussure acquired a life estate or a fee simple title to the plantation. Omitting formal parts, and provisions for the burial of her body and the payment of her debts, and some special bequests, tbe will is as follows:

“4. It is my will and desire that all the rest and residue of my estate, both real and personal, shall be equally divided between my beloved son, Alexander Finley McKinney, and my little granddaughter, Courtney McKinney Mitchell, daughter of W. Z. Mitchell, of Memphis, Tennessee, to be held and enjoyed by them as hereafter provided, and to this end I hereby devise to my said son, Alexander F'inley McKinney, the homestead and plantation near Germantown, Shelby County, Tennessee, upon which he and I reside, containing about 1,480 acres of land, together with all the improvements and appurtenances thereto belonging, to have and to hold the same to him and his heirs in fee simple.
“In order to avoid the trouble and expense of partitions between devisees, as far as practicable, I value the tract of land at the sum of $22,000, and charge my son with that amount for it in the division.
“5. For the purpose mentioned in the last item I further give and devise to my said granddaughter, Courtney McKinney Mitchell, my plantation in Lee County, Arkansas, known as the McKinney Place, cultivated this year by Messrs. Wormley and Goodman, containing about 1,720 acres of land, together with improvements and appurtenances thereto belonging. This plantation I value at the sum of $17,000, and with this amount I charge my said granddaughter for it in the division. This and all other real estate devised under this will to the said Courtney McKinney Mitchell to be taken and held by her upon the conditions and limitations following, viz: To her sole and separate use, benefit and enjoyment, free from all debts, contracts and liabilities of any husband that she may have, and in the event that she shall die leaving no child or children surviving her before the death of my said son, Alexander Finley McKinley, then all of said property and estate shall go to and become the absolute property and estate of my said son, and in the event she shall die without child or children surviving her after the death of my said son, then all of said property shall become the property of Alexander McKinney Rafter, J. M. Carter and C. M. Carter, to whom in that contingency, or to such of them as may be then living, I devise said property.
“6. I hereby constitute and appoint my beloved son, Alexander Finley McKinney, the testamentary guardian of the property and estate bequeathed and devised under the will to my said granddaughter, Courtney McKinney Mitchell, to be held and cultivated by him as such guardian during the minority of said granddaughter for her support, maintenance and education, etc.
“7. My Memphis real estate and such other as I may die seized and possessed of shall be equally divided between my said son and granddaughter by commissioners appointed by the court having jurisdiction of the person and subject-matter, but in the partition of such real estate my said son shall be charged with the sum of $5,000, the excess of the value that I placed upon the Shelby County plantation over the value of the Arkansas plantation, as heretofore provided. If, by reason of the depreciation in value of property or by any other contingency, the property to be then partitioned shall not be sufficient value to equalize the shares of my two devisees, then in that event the said Alexander Finley McKinney shall be debtor to my said granddaughter in the amount of any such deficit, and the property herein devised to him is charged with said deficit and the same shall be a lien thereon. ’ ’

The testatrix, G-rizelle T. McKinney, died December 30, 1888. Alexander Finley McKinney and Courtney McKinney Mitchell (now DeSaussure), the devisees in the will, acquired deeds to all interest under the aforesaid will of Alexander Finley Rafter, J. M. Carter and C. M. Carter to said plantation in 1894, and on March 14, 1900, conveyed it by warranty deed to William L. Bailey, under whom, through mesne conveyances, it was acquired by Hammond, Chandler and Jarrett, who have since remained in the undisturbed possession thereof. Alexander Finley McKinney died September 17, 1918, without issue. Courtney McKinney Mitchell (now DeSaussure) is the only living heir of her grandmother, the testatrix. She is living with her husband, Louis M. DeSaussure, at Collierville, Shelby County, Tennessee. She was born August 3, 1871, was fifty-one years of age when the suit was brought, and has four children, whose names and ages are as follows: Louis M. DeSaussure, Jr., 29 years; Margaret DeSaussure, 27 years; Charles Albert DeSaussure, 24 years, and Ellen Chessnutt DeSaussure, 18 years.

Appellants’ contention is that Courtney McKinney Mitchell (now DeSaussure) took a qualified fee in the plantation under the will of her grandmother; that, having survived her uncle and testamentary guardian, the first condition imposed in the fifth paragraph of the will was eliminated, and, on the birth of her first child, the second condition therein expressed was eliminated, and her title to the plantation became a title in fee simple, thereby defeating the remaindermen who were to take under said paragraph.

Appellees’ contention is that, under the common law, the language used in the will created an estate tail by construction, and this, by operation of § 1499 of Crawford & Moses’ Digest, vested the life estate only to the plantation in Courtney McKinney Mitchell (now DeSaussure), with the remainder to her children.

It will be observed that the first and last declarations of the testatrix relative to a division of her estate, both real and personal, between her son and only granddaughter, are that they shall share it equally. In the first part of paragraph 4 she said: “It is my will and desire that all the rest and residue of my estate, both real and personal, shall be equally divided between by beloved son, Alexander Finley McKinney, and my little granddaughter, Courtney McKinney Mitchell * * In the first part of paragraph 7 she said: “My Memphis real estate and such other as I may die seized and possessed of shall be equally divided between my said son and granddaughter * * *.” In order to prevent trouble and expense of partitioning her estate equally, she valued the 1,480-acre plantation in Tennessee, which she devised to her son in fee simple, at $22,000, and the one in Arkansas she devised to her granddaughter at the sum of $17,000. In paragraph 7 of the will she reiterated the inequality in value between the plantations she had already devised to her son and granddaughter, and in the division of the Memphis real estate and such other as she might own when she died, her son’s share therein was specifically charged with the sum of $5,000, the excess of the value that she had placed upon the Shelby County plantation over the value of the Arkansas plantation. In a last effort to effect an equal division of her entire estate between her son and granddaughter she said, in the latter part of paragraph 7: “If, by reason in the depreciation in value of property or by any other contingency, the property to be then partitioned shall not be sufficient value to equalize the shares of my two devisees, then in that event the said Alexander Finley McKinney shall be debtor to my said granddaughter in the amount of any such deficit, and the property herein devised to him is charged with said deficit, and the same shall be a lien thereon. ’ ’ In valuing the plantations she placed a value upon the lands themselves according to her idea of what each was worth, and charged each devisee for the amount fixed for the land which each received in the division. It is evident she did not value a fee simple title in one plantation and a life estate in another. It would have been next to impossible to have equalized a division of the estate on the basis of a fee simple title in one plantation and a life estate only in another. It would seem that a declared intention of a testator, in both the opening and closing paragraphs of his will, to divide his estate' equally between the beneficiaries, when connected with an effort ^ to accomplish that purpose by fixing the values of the properties devised to each and charging each with the value of the property devised to him, should not be thwarted by intervening language of doubtful meaning. By reference to the intervening language it will he observed there are no words in the will indicating that a limitation over to the heirs of the ¡body of Courtney McKinney Mitchell (now DeSaussure) was intended by the testatrix. No reference was made in the will either to a life estate or to a remainder estate. The language d'oes not restrict the use of the property by the devisee nor limit a remainder to her issue or the heirs of her body. On the contrary, we find language to the effect that it was devised to her for “her sole and separate use, benefit and enjoyment, free from all debts, contracts and liabilities of any husband she may have.” The absence of such restrictions and limitations and the use of the language just quoted indicate that the testatrix intended to devise a fee simple estate in the plantation in question to her granddaughter. In construing wills, courts favor the early vesting of estates, and in carrying out the intention of testators, if not at variance with recognized rules of law. A majority of the court has concluded that the instant ease is ruled by Wiggins v. Hill, 145 Ark. 152, 223 S. W. 394. It was decided in that case that the devisee took a defeasible fee simple title to the property devised. By so holding in the instant case, effect and meaning-will be given to every clause of the will. We cannot concur with learned counsel for appellees that this construction of the will will necessarily affirm the case because of the remote possibility that all of Mrs. DeSaussure's children may predecease her.

The first contingency upon which her defeasible fee simple title might be defeated was eliminated upon the death of her uncle, Alexander Finley McKinney. The other contingent remaindermen executed deeds for . all their interest in said plantation to Alexander Finley McKinney and Courtney McKinney Mitchell (now DeSaussure) in 1894, and they in turn conveyed the land to William L. Bailey in fee simple, through whom Hammond, Chandler and Jarrett acquired title through mesne ' conveyances purporting to convey the fee simple title. The taxes have been paid and improvements made on the faith of deeds executed by these contingent remainder-men, and certainly they have estopped themselves from defeating the title upon the remote contingency of Mrs. DeSaussure surviving all of her children.

On account of the error indicated the decree is reversed, and the cause is remanded with directions to enter judgments in. favor of appellants for their respective claims and to decree a foreclosure and sale of said plantation to satisfy the judgments.

Chief Justice Hart and Judge Wo on dissent.