text:
    Conway Oil & Ice Company v. Gibson Oil Company.
    Opinion delivered December 19, 1927.
    1. Railroads — use op spur-track. — Under Const., art. 17, § 1, providing that all railroads shall be common carriers, a railroad company owning and controlling a spur must permit the public to use it if needed, as the term “railroad” includes all sidetracks or spurs convenient for transacting the railroad company’s business.
    2. Railroads — ownership op spur-track. — Where, by contract, a spur was constructed by a,railroad for the use of an oil and ice company, but with the ownership and control remaining in the railroad, held that the spur becanfe a part of the railroad system, so as to preclude the oil company from charging a third person for use thereof.
    Appeal from Faulkner Circuit Court; W.J. Wag-goner, Judge;
    affirmed.

      JR. W. Botins, for appellant.

      George F. JELartje, for appellee.
   Mehaeey, J.

The appellee, Gibson Oil Company, brought suit against the appellant for $294.80' for merchandise and oil sold and delivered to the appellant.

Appellant answered, admitting the purchase of the merchandise and oil as set forth in plaintiff’s itemized statement, but -appellant -alleged that it had paid on said account the sum of $180, being the amount due from the appellee to the appellant on a running account for track rent or unloading charges for the cars unloaded by appellee on appellant’s spur-track, under -an agreement by which appellee was to pay the appellant $3 for each car so unloaded. Appellant offered to confess judgment for $114.80, the difference between appellee’s claim and appellant’s account against appellee.

In 18-92 the folio-wing contract was entered into between the St. Louis, Iron Mountain & Southern Railway Company and the Conway Oil & Gin Company of Conway, Faulkner County, Arkansas:

“Contract for siding or spur-track. These articles of agreement, made and entered into thi-s 4th day of June, A. D. 1892, by and between St. Louis, Iron Mountain & Southern Railway Company, party of the first part, and Conway Oil & Gin Company of Conway, Faulkner 'County, -State of Arkansas, p-arty of second part.
“Witnesseth: That for and in consideration of the sum of one dollar in hand paid to the party of the first part, by the party of the second part, receipt of which is hereby acknowledged, and stipulation and agreements herein contained to be kept and performed by the said party of the second part, the said railway company hereby agrees on their part that they mil lay, at or near Conway station, on the L. R. & F. 'S. Ry. or near 375 mile-post, the -said track to be- laid 593 feet in length, on the following terms and conditions, for the purpose of shipping cotton seed and oil.
‘ ‘ Company to furnish materials. (1) The said railway company hereby agrees to furnish, at their own cost, the necessary track materials, including rails, switch fixtures, fastenings, etc., and all labor necessary to lay said siding or spur-track in accordance with the map or plat hereto attached, showing the actual location of the same.
“Grade for siding, how done. (2) The said second party hereby agrees, on their part, to do all the necessary grading required for said siding or spur-track, in such manner as may be directed by the superintendent or engineer of the said railway company, and also to prepare the said grade to a proper surface for laying the track thereon.
“Right-of-way, how furnished. (3) The said second party hereby further agrees to furnish all the land necessary for the right-of-way for the said sidetrack, outside of the right-of-way or lands of the railway company, the said additional land to be furnished free of cost to the said railway company, and the said second party hereby further agrees to furnish, at their own cost, all the crossties and switch ties of suitable size required for the said siding or spur-track.
“Rails, etc., to be railway property. (4) It is hereby mutually agreed that all of the said rails, switch fixtures, fastenings, etc., furnished by said railway company, shall, during the existence of this agreement, and all times hereafter, be the property of the said railway company, and it is further agreed that the said second party shall have no right, title, or ownership in the said spur or sidetrack, nor in the rails or other materials with which the said track is laid, excepting crossties and switch ties which are furnished by them, which crossties, etc., they hereby agree to take up and remove from the railway right-of-way whenever the use of the track is abandoned or taken up as herein provided.
“Right to use track for other business. (5) It is hereby further mutually agreed that the sidetrack, when completed, is to be used by the said second party for the purpose of loading, unloading and shipping cottonseed and oil, with the reservation, to-wit: That the said railway company shall have the right to use the said track for their own business, or for the business of any other persons or shippers, provided that the business of the said other shippers can, in the judgment of the superintendent of said railway company, be done on the said track without serious detriment or inconvenience to the business of the said second party.”

The Missouri Pacific Bailroad Company is the successor of the St. Louis, Iron Mountain & Southern Bail-way Company, and the Conway Oil & Ice Company is the successor of the Conway Oil & Gin Company.

Appellant contends that, under the above contract, it had a right to charge appellee $3 a car for the use of the sidetrack for loading and unloading purposes. Appellant does not dispute any of the items in appellee’s account, but contends that it is entitled to a credit of $180 for the use of the spur-track by the Gibson Oil Company.

Our Constitution, among other things, provides: “All railroads, canals and turnpikes shall be public highways, and all railways and canal companies shall be common carriers.” 'Section 1, art. 17, Constitution of Arkansas.

It has been many times held that the term “railroad” includes all sidetracks necessary or convenient for the transaction of the company’s business. This was a sidetrack or spur connected with the main line of the railroad, and, while it was constructed under the contract above set out, it became a part of the system.

Section 4 of the contract provides that all of the rails, switch fixtures, fastenings, etc., shall, during the existence of the contract and at all times hereafter, be the property of the railway company, and that the second party shall have no right, title or ownership in the said spur or sidetrack nor in the rails or other materials with which the said track is laid, excepting crossties and switch-ties, which are furnished by them, which crossties, etc., they hereby agree to take up and remove from the railway right-of-way whenever the use o.f the track is abandoned or taken up, as herein provided. It will therefore be seen that the contract itself provides that the spur-track is a part of the property of the railroad company.. It has control over it.

Section 5 of the contract also provides that the railway company shall have the right to use the said track for their own business or for the business of any other persons or shippers, provided that the business of the said other shippers can, in the judgment of the superintendent of said railway company, be done on the sidetrack without serious detriment or inconvenience to the said second party.

The railroad company, in making’ the contract, evidently had in mind its duty to the public, that it was a common carrier, and that it was bound to furnish facilities to all shippers impartially. 'But, if there had been no such provision in the contract, it would have been the duty of the railroad company, whenever the public necessity required it, to permit persons other than appellant to use the track.

“The term ‘railroad’ includes all sidetracks necessary or convenient for the transaction of the company’s business, and if a railroad company controls and operates a switch or sidetrack as a part of its system, although primarily for the benefit of a particular shipper, it may be compelled to transport freight for others at points along the line where such persons have a right to ship or receive it. But, whére a switch is constructed for the benefit of a particular shipper on his land, and subsequently, under rights expressly reserved in the contract, the railroad company cancels its agreement and sells the switch to the landowner, he has the exclusive right to the use of the switch, and the railroad company cannot be required to receive the freight of others on or along such private switch of which it has not the management or control.” 33 Cyc. 637.

It will be observed from reading the above quotation that, where the spur is built for a shipper and the shipper becomes the owner outright, its ownership of that property is like the ownership of any other property. It does not belong to the railroad then and it is not a part of its system, but in all cases where the railroad company itself owns the switch or spur, and controls it, it is bound to permit the public to use it if such use is needed by the public.

It has been said: “Ordinarily a contract by a railroad company to build a sidetrack or spur-track from its main line to a private enterprise is valid, as the interest of the public cannot in any way be seriously affected by the construction of such track. But the contract will not be enforced when the public interest demands a discontinuance of the switch or spur.” 22 R. C. L. 836.

In a case in the Court of Appeals of Kentucky, involving a spur-track and the right to use the same, the court said:

“The railroad switch involved in this litigation was built by the White Stone Quarry Company, and in so doing they entered into a contract with the Louisville & Nashville Railroad Company by which it leased or hired all of the materials which went into i(t, from the railroad company, upon a stipulated rent, to be equal to 6 per cent, per annum on the value of the material furnished ; the quarry company to keep the roadway in good condition, either by doing the work itself or paying the railroad company for what it might do in this regard. Afterwards, on the 23d day o.f May, 1893, the property having passed into the ownership of the Bowling’ Green Stone Company, a new contract was made between it and the railroad company, in which all of the terms and conditions of the original contract concerning material furnished by the railroad company, and the rental therefor due from the quarry company, were recited, and further that, ‘whereas, said Bowling Green Stone Company wishes to increase its business, and has represented to said Louisville & Nashville Railroad Company that, if it should be relieved from the payment of said rent and for said repairs, it would result in an increase of traffic for said Louisville & Nashville Railroad Company: Now therefore, in consideration of the premises, the said Louisville & Nashville Railroad Company, from and after this date, releases the said Bowling Green Stone Company from the payment of rent on said material, and also agrees to keep said track in repair during the continuation-of this contract, without cost to said Bowling Green
Stone Company, reserving the right, however, to discontinue doing so, and the right to cancel this contract on 60 days’ notice in writing to said Bowling- Green Stone Company, whenever and at any time, in the opinion of the management of said Louisville & Nashville Railroad Company, the shipments from said quarries to points on and reached via said Louisville & Nashville Railroad Company’s lines are not sufficient to justify the maintenance of the track by said Louisville & Nashville Rail-' road Company. * * * .So far as this record shows, it exercises the same control and dominion over this line that it does over any other part of its system; and we think, by the terms of the contract in question, the switch, during the continuance of the contract, at least, becomes a-párt of the general system of the Louisville & Nashvillé Railroad Company. This being so, it cannot lawfully refuse to receive and transport freight belonging to appellees to and from such reasonable points along the line at which they may lawfully ship or receive it. * # * Railroad companies are g^tasLpublic corporations, created for the purpose of exercising the functions and performing the duties of common carriers. These duties are defined by law, and, in accepting- their charters, they necessarily take with them all the duties and liabilities annexed; and they are required to supply, to the extent of their resources, adequate facilities for the transaction of all business offered, and to deal fairly and impartially with their patrons. * * * And they have no right to contract with a corporation or individual to give exclusive rights to transfer any commodity over any part of their line.” Bedford-Bowling Green Stone Co. et al v. Oman et al., 115 Ky. 369, 73 S. W. 1038.

In discussing a similar question, the Supreme Court of Nebraska said:

“The facts, we think, warrant the inference that the respondent constructed the sidetrack across the intervener’s premises under at least an implied grant of a right-of-way from the intervener’s privies in estate, the then owners of the premises, and that such track now constitutes a part and parcel of the respondent’s railroad system, open alike to all requiring service thereon.” The court then quotes the section of the Constitution of Nebraska, which is substantially the same as ours, declaring railroad companies public highways, etc., and then proceeds:
“The term ‘railroad’ includes all sidetracks necessary or convenient for the transaction of the company’s business. # * * The sidetrack in question is connected with the respondent’s main line. In the absence of evidence to the contrary, taking into account the fact that it crosses the property of third parties and occupies a portion of the public streets of the city under a grant from the city, the presumption would be that it is a part of the respondent’s railroad system, and a public highway within the meaning of the constitutional provision above quoted.” Roby v. State ex rel. Farmers’ Grain & Live Stock Co., 76 Neb. 450, 107 N. W. 766.

In the contract in this case it is provided that this spur-track shall belong to the railroad company, shall be under its supervision and control. The railroad company reserves the right not only to use this spur-track itself, but reserves the right to use it for other shippers, and, as we have said before, if it did not reserve this right, the fact that it owns and controls this spur-track and is a common carrier, owing a duty to the public, if there is any public necessity, it is required to receive and transport freight for all persons who may offer it. ■

The judgment of the circuit court is correct, and is therefore affirmed.

Smith and MoHaney, JJ., dissent.


source: Caselaw Access Project

author: MoHaney, J.

license: Public Domain

text:
    McLaughlin v. Missouri Pacific Railroad Company.
    Opinion delivered December 19, 1927.
    1. Railroads — right to lay tracks on streets. — Under an ordinance granting to a railroad company a right to lay tracks and switches on certain streets of a city, the right was exhausted on’ construction by the railroad of its tracks, and it was not authorized to build additional tracks 27 years after passage of the ordinance.
    2. Railroads — right to lay additional tracks in streets. — An injunction against the city preventing it from interfering with a railroad laying additional tracks over a right-of-way through the city will not be dissolved, though the railroad did not apply to the city council for authority to lay such tracks, where the building of such additional tracks is a public necessity, and where the railroad owns all the right-of-way over which it proposes to lay such tracks, except across one street, and the city council would be under the duty of granting the right to lay such tracks.
    Appeal from Garland Chancery Court; W. B. Duffie, Chancellor;
    affirmed.

      A. T. Davies and Murphy <& Wood, for appellant.

      E. B. Kinsworthy, for appellee.
   MoHaney, J.

Appellants are the city attorney, municipal judge, chief of police and mayor of the city of Hot Springs. Appellee is the successor to the St'. Louis, I. M. & S. B. Co., which was the successor to the Little Bock, Hot 'Springs & Western Bailway Co., and it in turn was the successor to the Little Bock, Hot Springs & Texas Bailway Co., and is now the owner and is operating a line of railroad between the cities of Little Bock and Hot Springs. On April 2, 1894, the city council of Hot Springs passed an ordinance, the title of which and the parts thereof pertinent to this controversy being as follows:

“An ordinance granting to the Little Bock, Hot Springs and Texas Bailway a right-of-way and other rights and privileges on, through and over certain lots and blocks and streets and avenues in the city of Hot Spring’s, including the right and privilege to build, construct, establish, maintain and operate thereon and thereto such track or tracks, sidetracks, turnouts, turntables, depots, water stations and such other structures and improvements as said railway company may from time to time deem necessary.
“■Section 1. Be it ordained by the city ooun'cil of the city of Hot Springs: That a right-of-way and' all other rights and privileges hereinafter mentioned he and it and they are hereby granted to the Little Rock, Hot Springs and Texas Railway, a corporation created and existing under the laws of the State of Arkansas, on, through and over certain lots and blocks and streets and avenues of the city of Hot Springs, which lots and blocks and streets and avenues are hereinafter more specifically mentioned.
“Section 2. That the right-of-way hereby granted may be located at such place or places as said railway company may select, on, over and through that portion of said city of Hot Springs described as follows, to-wit.”

Then follows a description of the route of the right-of-way through the city, from the corporate limits down to the intersection of Elm and Valley Streets, where the depot is located, and then says: “That, in addition to the rights and privileges hereinbefore mentioned and granted, said railway company is also granted the right and privilege to occupy and use all of said block fifty, and all that portion of said blocks fifty-four and fifty-eight lying east of a line drawn parallel with the east line of Elm Street, distance one hundred and ten feet easterly, at right angles with the Elm Street front of said blocks fifty-four land fifty-eight, for the purpose and use of erecting, constructing, maintaining, using and operating thereon such track, or tracks, switches, turnouts, turntables, freight depots, passenger depot and such other structures and improvements as may be necessary and incident thereto, and for such other purpose and uses as said railway company may deem necessary; said railway company is also hereby granted the right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, sidings, switches and yard tracks on that portion of Orange and Olive Streets between Elm and Valley Streets as said railway company may, deem proper. ’ ’

On July 2, 1899, the city council of Hot Springs passed an ordinance granting the Little Rock, Hot Springs and Western Railway Company a right-of-way and certain rights and privileges as successor to- the Little Rock, Hot Springs & Texas Railway Company, in which all the rights, privileges and right-of-way granted in the first ordinance were extended and granted to the Little Rock, Hot Springs & Western Railway Co., its successors and assigns. In § 2, after describing the same general route as in the first ordinance, this further grant is made:

“That, in addition to the rights and privileges hereinbefore mentioned and granted, said railroad company is also granted the right and privilege to occupy and use any part of said blocks fifty, fifty-four and fifty-eight for the purpose of erecting, constructing, - maintaining, using and operating thereon such track or tracks, switches, turnouts, and turntables, freight depot, passenger depot and such other structures and improvement as may be necessary and incident thereto, and for such other purposes and uses as said railroad company may deem necessary; said railroad company is also hereby granted the right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, switches and- sidetracks, on that portion of Orange and Olive Streets, between Elm and Valley Streets, as said railroad company may deem proper.”

Section 3 defines the conditions on which the rights are granted, among’ them the following:

“That said railroad company shall have said railroad completed and be operating within three years from the date of the passage of this ordinance, otherwise the grants herein are null and void. ’ ’

The company constructed its railroad within the time limited, and it and its successors and assigns have continuously operated same since that time. During this period of time, Hot Springs has grown from a mere village to a large and thriving city, and is the world’s most famous health resort. The facilities built by the railroad company,„both for its own convenience and that of the general public, became inadequate, and necessity demanded the construction of additional tracks to its depot, to facilitate the handling- of the enormously increased traffic and the great number of trains coming into its station. Therefore, to meet this necessity, appellee decided to spend more than $200,000 in improving its terminals in Hot Springs, and, as a part of this program, began the construction of four additional tracks parallel with the main tr a'ek and immediately west thereof, through blocks 50, 54 and 58,- and to its depot in block 58, which stands at the intersection of Elm and Valley Streets. It owned all the land on which these tracks were to be laid, except Orange Street, which extends west from the railroad, but has no outlet to the east. In fact, appellee owns all of block 50, all of 54 east of the alley, and all of 58. In order to build these tracks it was absolutely necessary to cross the “dead end” of Orange Street. When Orange Street was reached in the laying of tracks, appellants prohibited it from crossing Orange Street, arrested its employees under a claim that it had no right to cross said street, and thereby was preventing the completion of said work. Appellee thereupon brought this suit to enjoin appellants from interfering in any way with such work. A temporary restraining order was issued, and the case set down for final hearing. If any pleadings were filed by appellants, they are not abstracted, and none is mentioned in the decree. The case .was, quoting from the decree, “submitted to the court on the complaint of plaintiff with exhibits thereto, the copies of two separate ordinances of the city council of the city of Hot Springs, Arkansas, which are attached to the plaintiff’s complaint, the admissions of the defendants that said ordinances were duly and regularly passed by the city council of Hot Springs, Arkansas, and the further admission by the defendants that all the allegations of fact in plaintiff’s complaint are true, a map showing the location of the railroad tracks which plaintiff intends to build, and the testimony of E. M. Cohen to the effect that plaintiff owns all real property abutting on Orange Street, which plaintiff intends to cross same with its tracks, and that plaintiff owns all real property lying east of the alley which runs through the middle of hloclc fifty-four of United States Hot Springs Reservation from Orange Street to Olive Street,” from which the court found that appellee had the right, under the law and ordinances, to construct said tracks across Orange Street, and made the temporary order, restraining appellants from interfering therewith in any way, permanent, but provided such tracks should be so constructed as not materially to interfere with traffic on said street or the use thereof by the public. Acting under the injunction granted it, appellee has completed the construction of said tracks across Orange Street to its depot, and they are now being operated and used for the benefit of it and the public. By this appeal we are asked to reverse this case, and direct the chancery court to require appellee to remove the tracks so placed on Orange Street.

Appellant’s principal contention for a.reversal of the case, and the only.one we deem necessary to discuss, in view of the disposition we make of it, is that the ordinances in question only gave appellee and its predecessors the right to build such tracks across Orange Street as were contemplated at the time; that the grant was not a prospective and continuing one, giving the grantee the right to lay additional tracks whenever it deemed necessary or proper to do so. In other words, that, having constructed its railroad and tracks under the ordinance, all its rights were exhausted, and.it cannot now, after a lapse of 27 years, proceed to build new tracks under this authority, but would have to go to the city council for additional authority. To sustain this contention counsel have cited two of our own cases, Board of Directors of St. Francis Levee Dist. v. Bowen, 80 Ark. 80, 95 S. W. 993, and St. L. I. M. & S. R. Co. v. Stevenson, 125 Ark. 357, 188 S. W. 832.

The first of such eases “was an action to recover damages on account of the construction of. a levee by the defendant across the farm of plaintiff and the taking of land for a right-of-way therefor, ’ ’ and this court said:

“The main defense set np by the defendant seems to have been that the right-of-way to construct the levee had already been granted by a deed duly executed by plaintiff. This deed purports to convey ‘the right-of-way’ over the land in question ‘for the purpose of -constructing and maintaining any and all levees that may be built thereupon as a protection against overflows.’ This deed was made out on a printed form for a deed prepared by the levee board, and recited a nominal consideration of $1. We are of the opinion that the deed gave only one right-of-way across the land; and, when a right-of-way across the land was selected and occupied by the construction of a levee, the defendant could not construct another levee across the land on a different line without securing another right-of-way. We think that the circuit court correctly held that only one right-of-way could be taken under it, and that, after that had been selected and occupied, the power of the deed was exhausted, and no other right-of-way could be taken under it. ”

In the other case above cited, the substance of the decision is stated in the syllabus, and is as follows:

“One B granted the appellant railroad company a right-of-way over certain lands owned by him, without specifying the width of the right-of-way granted. The railroad company occupied a right-of-way about thirty feet in width, and some time thereafter sought to extend its right-of-way to the statutory limit. Kirby’s Digest, 2939-2940. Held, the railroad company could not extend the limits of its right-of-way beyond the territory already occupied by it without a new grant from the owner of the land.”

In the last mentioned case this court cited with approval the case of Vicksburg & M. R. R. Co. v. Barrett, 67 Miss. 579, 7 So. 549, in which the landowner had conveyed to the railroad company by deed a right-of-way “not to exceed in width one hundred feet” across certain lands. The full width of the strip was not actually occupied in building the road. Many years afterwards, when the original grantors had conveyed the lands to others, the railroad company sought to take the remainder of the one hundred-foot strip described in the deed for its uses and purposes. The Supreme Court of Mississippi denied the railroad company this right, and in disposing of the case the court said:

“The conveyance from Cohea did not grant a right-of-way to the company one hundred feet wide. The right granted was of a way ‘not to exceed in width one hum dred feet,’ within which limit the officers of the company were to ‘use so much land as they may deem necessary. ’ The way granted was not fixed by the deed as to place, quantity, or direction.' It was, until located, a floating right, exercisable over any portion of the land within the limit of width specified. Action was required by the company to indicate and fix the way granted, and though it may be true, as contended by counsel for the company, that ordinarily or universally the road-bed of railroads is laid along the center of the right-of-way, such custom cannot control where the conduct of the parties touching the particular right claimed is shown to -have been otherwise. * * * The claim here is to extend a grant, the limits of which have been fixed by the partiés, so as to include lands which might have been, but were not, deemed ‘necessary’ by the officers of the company when it located its way under the grant. We find nothing in the conveyance by which authority to locate the way might be exercised more than once, and by the location then fixed the company must be concluded.”

Based upon-these and other cases cited by counsel for appellants, it is the opinion of the majority of this court that appellee’s rights, granted under the ordinance in question, were exhausted when its. predecessor, the Little Bock, Hot Springs & Western Eailway Co., constructed its terminals in Hot Springs many years ago,- and that the “right and privilege to lay, construct, maintain, operate and use such track or tracks, turnouts, siding, switches and yard-tracks on that portion of Orange and Olive Streets between Elm and Valley Streets as said railway company may deem proper,” which was given appellee’s said predecessor by the city of Hot Springs in said ordinance, was not a prospective grant, giving the appellee the right to do so at this time, after the lapse of so many years, but was a grant which must have been exercised presently. But it does not-necessarily follow from this view of the majority that this case must be reversed. All the facts alleged in the complaint were conceded by appellants to be true. It is conceded that the building of such additional tracks by appellee is a public necessity, that it owns all the right-of-way over which it proposes to lay such tracks, except where they cross Orange Street, and that, being a public necessity, wherein the interests of both the city of Hot Springs, the public generally and appellee will be promoted, the city council of Hot Springs would be under the duty of granting appellee the right and privilege to lay said tracks across Orange Street in order to reach its depot therewith. And while the proper course to pursue would have been to apply to the city council for such authority, and, on its refusal to grant same, to have applied to the courts for relief, yet, since said tracks have already been constructed and are in use and operation under the authority of the injunction granted by the court against appellants, and since said right would necessarily have been granted by the city council, this court will not set aide the action in granting said injunction.

It is the opinion of the minority, in which Mr. Justice Smith, Mr. Justice Humphreys and the writer of this opinion agree, that said ordinance grants to appellee a continuing right to lay the tracks in question across Orange Street, between Elm and Valley Streets, at any time when the public necessity demanded it, and that there was no necessity of going to the city council on an application for a new grant for such purpose. We are of the opinion that the ordinance in question, when properly and fairly construed, shows on its face that it was in contemplation of both parties, at the time of the grant, that additional facilities might and would be required with the growth of the city and the increased demands of the public, and that it was the intention of the council to give appellee the right to construct such additional facilities between Valley and Elm Streets, and across blocks 50, 54 and 58, and necessarily across "Orange and Olive Streets, from time to time, as necessity demanded, and, having completed its line within the three years limited in the ordinance, the grant ripened into a contract, giving the vested right to appellee thereafter, from time to time, to build such additional facilities as necessity required. We state these views generally, without going. into an analysis of the ordinance to demonstrate the correctness of our opinion. We adhere to the views expressed in the former decisions of this court in the cases cited.

It follows that the majority and minority have both reached the same result, and that the case must be affirmed. Costs will be adjudged against appellee.


author: McHaney, J.

text:
    Wellston Radio Corporation v. Culberson.
    Opinion delivered December 19,1927.
    Fraudulent conveyances — bulk sales law. — Where the owner of an electrical business, which did repair work, sold the business, and an action was brought charging that he had made a bulk sale in violation of the Bulk Sales Law (Crawford & Moses’ Dig., §§ 4870-4872, as amended by Acts 1923, p. 340), evidence held to sustain a finding ithat the business was not a merchandise business, within the meaning of the Bulk Sales Law.
    Appeal from Washington Chancery Court; Lee Seamster, Chancellor

    affirmed.

      C. D. Atkinson; J. W. Grabiel, Combs & Johnson and J. S. Jameson, for appellant.

      Walker & Walker, for appellee.
   McHaney, J.

Appellant, a foreign corporation, brought this action in the Washington Chancery Court against H. I. Culberson and Claudine Benton, doing business as the Fayetteville Electric Company, and V. McDaniels, charging that Culberson & Benton were indebted to it in the sum of $102.42 for certain radio material and supplies, and that, while so indebted to it, they had made a sale in bulk of the business.known as the Fayetteville Electric Company to McDaniels, not in the regular-course of trade, and without 'conforming with §§ 4870, 4871 and 4872, C. & M. Digest, as amended 'by act 374 of the Acts of 1923, commonly known as the Bulk Sales Law. It thereafter filed an amendment to the complaint, making the Mcllroy Banking Company a party defendant, and alleging that, prior to said sale by Culberson & Benton to McDaniels in bulk, said Fayetteville Ele'ctric Company had executed and delivered to said bank a chattel mortgage on certain stock and fixtures belonging to the electric company, without complying with the Bulk Sales Law. The mortgage thus given covered a number of light fixtures, a showcase, a counter, a lamp case, tools, truck, wiring material, and radios. Thereafter the Fayetteville Lumber & Cement Company, ’Southwest Power Company, Empire Electric Company and American Electric Company intervened in said action and filed their separate complaints, each alleging- that it had sold and delivered to the Fayetteville Electric Company, composed of Culberson & Benton, merchandise in the respective sums of $79.20, $360.73, $208.76, and $101.35, for which payment had not been made, and that the business of the Fayetteville Electric Company had been sold by Culberson &. Benton to McDaniels without complying with the Bulk Sales Law, and in like manner raising the question of the validity of the chattel mortgage executed to the Mcllroy Banking Company.

McDaniels answered, denying, that he was indebted to any of the parties in any sum, and admitted that he had purchased the business of the Fayetteville Electric Com- ' pany, but that, in doing so, the Bulk Sales Law of Arkansas was in no wise violated; that the business purchased by him was an electric repair shop, in which all kinds of electrical repairs were made, and in which various accessories were kept for the business of making repairs, and that the Bulk Sales Law of Arkansas had no application to such a business. The banking company filed substantially the same kind of answer, and claimed that the Bulk Sales Law had no application to the business conducted by the Fayetteville Electric Company. Culberson & Benton did not answer, although service was had upon them upon the original complaint of appellant, Wellston Radio Corporation, but no service was had upon them by any of the interveners. Only two witnesses testified for appellant and interveners who pretended to know anything about the icharacter of the business 'conducted by the Fayetteville Electric Company.

R. E. Estes testified that the business, at the time it was owned by'Culberson, was retailing electric appliances and doing electric job work, the same as his company, the Southwest Power Company; that they kept lamps, lighting fixtures, washing machines, ice boxes, radios and other electrical accessories in stock.

Harry B. Curtis testified that, to the best, of his knowledge, the Fayetteville Electric Company was engaged in the retail business, and also did job and repair work, but primarily a retail establishment, carrying such articles as heretofore enumerated by Estes, and including vacuum cleaners, electric wares, curling irons, waffle irons, heating pads, grills, bath heaters, and all small appliances. He was also a witness for the intervener, Southwest Power Company, which was a competitor of the Fayetteville Electric Company.

On the other hand, Mr. McDaniels testified that he bought the contracting, wiring and repair business that Culberson & Benton then had on hand for $4,250, in which he assumed payment of certain debts listed in the bill of sale in the sum of $1,439.51, and assumed the mortgage to the Mcllroy Banking Company; that he had paid and was paying the accounts he assumed. He did not assume any of the accounts in question, nor agree to pay same. None of the material and supplies on which their accounts were based were in the stock at the time he bought, except one Westinghouse range, which was still on hand, which had been purchased from the Southwest Power Company. This was the only item in the stock at the time he bought that belonged to either the appellant or any of the intervening appellants. He further testified that eighty per cent, of his business is for contract work and repairs, and that the stock kept on hand is for his own convenience in fulfilling contracts and in doing repair work. He stated that he would not estimate that over ten per cent, of his business was for sales of accessories and stock carried away by the customer at the time of the sale.

O. W. McDaniels, son of Y. McDaniels, corroborated his father in every respect. He also testified that he worked for Mr. Culberson before his father purchased the business, and that Culberson carried on his 'business substantially as they did, but could not say what percentage of Culberson’s business was for 'contract and repair work, and what percentage of counter sales in the. store.

After hearing the testimony, the chancellor found “that the business of the Fayetteville Electric Company is not a merchandise business within the meaning of that term as used in the Bulk Sales Law, and therefore finds for thé-defendant, V. McDaniels. The court further finds that the mortgage held'by the Mcllroy Banking Company in no way conflicts with the rights of the plaintiff or intervener herein,” and he thereupon entered a decree dismissing the complaint and interventions for want of equity, from which comes this appeal.

The only question involved in-this controversy therefore is the applicability of the Bulk Sales Law to this particular business. In the recent case of D. C. Goff Co. v. First State Bank of DeQueen, ante p. 158, we said:

“It will be noticed from the language of the act that it pertains only to the business of merchandising — the business of a merchant or trader in merchandise — and the prohibition is leveled against the sale or mortgage in bulk of a ‘part of or the whole of a stock of merchandise, or merchandise and fixtures’ of a merchant. Clearly, we think, a keeper of a restaurant, whose business it is to serve food and drink to the public, is not engaged in the mercantile or merchandising business, nor is he a merchant, within the meaning of the Bulk Sales Law. Even though he may keep some merchandise which is used or useful in his business, including cigars and cold drinks, still we are of the opinion that this does not change the character of the business, but is only incidental thereto. ’ ’

In the case of Fisk Rubber Co., Inc., v. Hinson Auto Co., 168 Ark. 418, 270 S. W. 605, this court said:

“Here there was a sale of the entire business, but the question is whether there was a stock of merchandise within the meaning of the statute. A stock of merchandise might, of course, consist -solely or largely of automobile parts and accessories, but we have concluded that the finding of the court below that there was no sale of a stock of merchandise is not clearly against the preponderance of the evidence. The business sold was primarily and essentially a repair shop, including an agency for the sale of cars, but it is not contended that any automobiles were included in the sale. To carry on this business it was essential that various parts be kept in stock, but. such parts were kept ordinarily for use in repairing cars, and the articles were usually adjusted to the cars of the purchaser.”

In the case of Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 252 S. W. 20, this court held that the Bulk Sales Law “has no application to a manufacturing plant which sells its products merely as an incident to the business ”; and in Fisk Rubber Co. v. Hayes, 131 Ark. 248, 199 S. W. 96, an automobile agency and accessory business was held not to be within the Bulk Sales Law, for the reason that the part of the stock sold was inconsequential in comparison with the value of the entire stock.

We think this case is controlled by these cases, and that the decision of the chancery court is supported by the preponderance of the evidence; at least we cannot say that it is against the preponderance of the evidence.

Affirmed.


author: Hart, C. J.,

text:
    Allred v. Griffith.
    Opinion delivered January 9, 1928.
    1. Appearance — effect of voluntary appearance. — Where the circuit court has jurisdiction of the subject-matter of a cause of action, it acquires jurisdiction of persons by their entering a voluntary appearance.
    2. Courts — stock law election contest — jurisdiction.—In a proceeding to contest a stock law election, where a demurrer to the jurisdiction was sustained in the county court, and an appeal was prosecuted to the circuit court, which overruled the demurrer, held that the circuit court could only acquire such jurisdiction by appeal as was possessed by the county court, and if the county court was without jurisdiction to try the contest the circuit court could acquire none on appeal.
    3. Appeal and error — waiver of jurisdiction. — In a stock law election contest brought in the county court, where a demurrer to the petition was sustained and the petition dismissed for want of jurisdiction, and on appeal to the circuit court the demurrer was overruled, to which exception was duly taken, the fact that both parties thereafter waived formalities and tried the case on its merits did not confer jurisdiction on the circuit court, the waiver being merely intended to facilitate a trial.
    Appeal from Carroll Circuit Court; J. 8. Maples, Judge;
    reversed.
    STATEMENT OF FACTS.
    Appellees commenced this proceeding in the county court against appellant to contest a stock law election of Liberty T'ownhip, Carroll County, Arkansas, held October 5, 1926, and the prayer of the petition is that the court declare that said stock law was adopted by a majority of the qualified electors voting at the election, and that the county clerk be instructed to so certify. Appellants filed a demurrer to the jurisdiction of the court, and the petition of appellees was dismissed for want of jurisdiction of the court. Appellees duly prosecuted an appeal to the circuit court. In the circuit court appellants again presented their demurrer to the petition of appellees, on the ground that the county court had no .jurisdiction of the cause of action, and the circuit court acquired none on appeal. The court overruled the demurrer, and appellants duly excepted to the ruling of the court, and their exceptions were duly noted of record. We copy from the transcript the following:
    “This court, after overruling-the contestee’s demurrer, assumed jurisdiction of the cause to try it upon its merits, both parties waived formalities, and the cause was submitted to the court upon an agreed statement of facts as to all voters contested by the contestants and eontestees, except Carl Burkett, who voted against the stock law, and was contested as’being a legal voter of the said township by the contestants, and Mrs. T. A. Griffith, Mrs. H. J. Griffith, Mrs. Henry Griffith and Mrs. Ula Griffith, who voted for the adoption of the stock law, and who were contested by the eontestees as not being legal voters in said township.”
    The circuit court then proceeded to try the case on the testimony and agreed statement of the parties introduced before it, and found in favor of appellees. It was the judgment of the circuit court that the stock law had been adopted for said Liberty Township at the general election held in October, 1926, and it was adjudged that the same was in force from and after the fifth day of April, 1927. It was further ordered that the. clerk certify the judgment of the circuit court to the county court, to the end that the adoption of the stock law might be declared by the county court, as the law.directs. To reverse that judgment the appellants have duly prosecuted an appeal to this court.

      J. E. Simpson, for appellant.

      Festus 0. Butt,lor appellee.
   Hart, C. J.,

(after stating the facts). It is conceded by counsel for appellees that the county court had no jurisdiction to try the contest for the adoption of the stock law, and that the circuit court was the proper forum in which to commence such contest. It is insisted by counsel for appellees, however, that, inasmuch as the circuit court had jurisdiction of the subject-matter or cause of action, it could acquire jurisdiction of the persons of appellants by their entering a voluntary appearance to the action in the circuit court. Undoubtedly this is true, and we would have no hesitation in adopting the reasoning of counsel for appellees if it could be said that appellants entered their voluntary appearance to the action in the circuit court and consented to a trial there. In making his contention to that effect, counsel for appellees relies upon the part of the record which we have copied in our statement of facts, and which we need not repeat here. It is claimed by counsel for appellees that that part of the record which shows that, after the court assumed jurisdiction of the case to try it upon its merits, both parties waived formalities, and that the cause was submitted to the court upon an agreed statement of facts showed their voluntary submission to a trial in the circuit court. We do not think so. Appellants excepted to the action of the circuit court in overruling their demurrer to the jurisdiction, and had their exceptions entered of record. We think that all that was meant by the recitation referred to was that, since the court had overruled their demurrer and had assumed jurisdiction to try the case upon the merits, they would waive all formalities and would try the case upon an agreed statement of facts and such other informal evidence as might be agreed between the parties. This was evidently done for the purpose of facilitating the progress of the trial and not for the purpose of entering their appearance to the action.

It is well settled that the circuit court can only acquire such .jurisdiction upon appeal as that possessed by the county court; if the county court was without jurisdiction to try the contest, the circuit court, acquired no jurisdiction on appeal. Price v. Madison County Bank, 90 Ark. 195, 118 S. W. 706.

Therefore it is ordered that the judgment be reversed, and that the cause be dismissed without prejudice as to bringing another action.


author: Hart, O. J.,

text:
    Causey v. Eiland.
    Opinion delivered January 9, 1928.
    1. Banks and banking — certification of check. — A certified check is the equivalent of acceptance, and by it the funds' of the drawer are, in legal contemplation, withdrawn from his credit and appropriated to the payment of the check, and the bank becomes the debtor to the holder, and is absolutely liable to pay the cheek when presented.
    2. Bills and notes — bona-fide holder of certified check. — Where the fraudulent seller of a stoek of merchandise received a certified check therefor, and deposited it indorsed in blank in another bank having no knowledge of the fraud, with directions' to credit part of the amount on a note due to a third party and deposit the remainder to the seller’s account, the latter bank became the absolute owner of the cheek as a bona fide holder, and a subsequent garnishment against the seller could not affect the rights of the bank to enforce the check.
    3. Banks and banking — nature of cashier’s check. — A cashier’s check is a bill of exchange drawn by the bank on itself, and accepted by the act of issuance, and there is no right -of countermand.
    Appeal from Searcy Cliancery Court; Sam Williams, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    O. C. Eiland brought this suit in equity against 0. Gr. Nichols to foreclose a mortgage on a stock of drugs and fixtures to secure the payment of three notes of $1,000 each and the accrued interest, all of which were overdue. Writs of garnishment were also sued out against the Bank of Swifton at Swifton, Arkansas, and the American Exchange Bank of Leslie, Arkansas. The Bank of Swifton answered the writ of garnishment, and asked directions as to whom it should pay the amount of a certified check issued by it to 0. Gr. Nichols in the aum of $3,500. The American Exchange Bank of Leslie filed its answer to the writ of garnishment, and admitted that the certified check in question had been indorsed to it by O. Gr. Nichols and that it had credited the amount of said check partly to Nichols and partly to William Ashley.

      The material facts raising the issues involved in this appeal may be briefly stated as follows: .On February 22, 1926, 0. Gr. Nichols entered into a contract with Gr. A. Causey and others for the sale of a stock of drugs owned by him in the town of Swifton, Arkansas, for the sum of $2,527.47. On the 26th day of February, 1926, Gr. A. Causey gave his check to 0. Gr. Nichols for $2,527.47 in payment of the purchase price of said stock of drugs. On the same day the Bank of Swifton issued to 0. Gr. Nichols its cashier’s check for $3,500, which included the purchase price of said stock of drugs. Nichols did not tell the purchasers of the stock of drugs that he was indebted to O. C. Eiland for the purchase price of the same, or that he owed any other debts, except a few small bills.
    On the first day of March, 1926, 0. Gr. Nichols deposited cashier’s check in the American Exchange Bank of Leslie, indorsed in blank by him. According to the testimony of Roy Hudspeth, cashier of the bank, Nichols and William Ashley came into the bank with a cashier’s check on the Bank of Swifton for $3,500. Nichols directed that $500 of this amount should be credited to him and that the sum of $3,000 should be deposited to the credit of William Ashley. Ashley had been a former employee of the bank, and went back to a box in the bank and got out a note owed him by Nichols and credited the sum of $3,000 on it. The cashier thinks he gave a deposit slip to William Ashley and also gave Nichols a deposit slip for $500.
    According to the testimony of William Ashley, Nichols told him; that he wanted to pay him $3,000 on a note for $4,500, which had been given to him by Nichols for money borrowed from him by Nichols. Nichols indorsed the cashier’s check in his favor on the Bank of Swifton for $3,500 and gave it to the cashier of the American Exchange Bank. Pursuant to the directions of Nichols, $3,000 of this amount was credited on the $4,500 note of Nichols to Ashley, and $500 was credited to the individual account of Nichols. The testimony of Ashley was corroborated by O. Gr. Nichols.

      The cashier’s check and the indorsements thereon are as follows:
    “Bank of Swifton, No. 3796.
    “Swifton, Arkansas, 2-26-26.
    “Pay to the order of Mr. O. G. Nichols, $3,500, exactly thirty-five hundred dollars ($3,500).
    Signed “W. D. Morgan, Cashier.”
    “(Cashier’s check).
    Indorsements: “O. G. Nichols. Pay to order any hank or hanker or trust company, March 1,1926. Signed American Exchange Bank, Leslie, Arkansas.
    “Pay to order of any bank, banker or trust company, March 3, 1926. Grand Avenue National Bank, St. Louis, Missouri.
    “Pay to order of Little Bock Clearing House, prior indorsements guaranteed. Signed Federal Trust Company, Little Bock, Arkansas, March 4, 1926.
    “Pay to order any bank, banker, or trust company. Little Bock Clearing House.”
    Other facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of the garnishees, and dismissed the garnishments against them. To reverse the decree in this respect G. A. Causey and others have duly prosecuted an appeal to this court.

      Ira J Mack and Boyce & Slayton, for appellant.

      D. T. Cotton, for appellee.
   Hart, O. J.,

(after stating the facts). The decree of the chancellor was correct. The rule governing the liability of a bank on a certified check has been clearly stated by the Supreme Court of Alabama as follows:

“A certified check has a distinctive character as a species of commercial paper, the certification constituting a new contract between the holder and the certifying bank; the funds of the drawer are, in legal contemplation, withdrawn from his credit and appropriated to the payment of the check, and the bank becomes the debtor of the holder as for money paid and received.” National Bank v. Miller, 77 Ala. 168, 54 Am. Rep. 50.

This view of the effect of a cashier’s check has been adopted by this court in Merchants’ & Planters’ Bank of Camden v. New First National Bank of Columbus, Ohio, 116 Ark. 1, 170 S. W. 852, Ann. Cas. 1917A 944. In that case the court quoted from an opinion of the Supreme Court of the United States in Merchants’ Bank v. State Bank, 10 Wall. (U. S.) 604, 19 L. ed. 1008, the following.

“By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until, in the course of business, it goes back to the bank for redemption and is extinguished by payment. ’ ’

So it will be seen that when the Bank of Swifton issued the certified check to Nichols there was an absolute liability on its part to pay the check when received. This brings us to the question of the effect of the indorsement of the certified check by Nichols to the American Exchange Bank of Leslie. This indorsement was made by Nichols on March 1, 1926. This was before the issue of the writs of garnishment in this case. At that time it may be stated that the facts would have justified a finding that Nichols acted, fraudulently in making the sale of his stock of drugs to G-. A. Causey and his associates. The record, however, does not show that the American Exchange Bank of Leslie had any knowledge of that fact. According to the evidence in the case, when Nichols indorsed the cashier’s check of the Bank of Swifton for $3,500, he directed the cashier of the American Exchange Bank of Leslie to credit $500 of this amount to his personal account and to credit a note which he owed William Ashley with the sum of $3,000. This was done. The account of Ashley was on that day credited with the sum of $3,000 and the account of Nichols was credited with $500. These facts bring the case squarely within the principles of law announced in Merchants’ & Planters’ Bank of Camden v. New First National Bank of Columbus, Ohio, 116 Ark. 1, 170 S. W. 852, Ann. Cas. 1917A, 944. In that case it was held that a bank which has received a certified check for deposit and has credited the deposit with the amount of it, was a bona fide holder, and might enforce payment of it as against the drawee bank.

The record does not show that the American Exchange Bank of Leslie received the certified check for collection. Nichols indorsed the check in blank to the bank. The bank received such certified check, and credited the account of Nichols with $500 of the amount of the certified check. The remaining $3,000 was, under the direction of the bank, credited on a note of $4,500 owed by Nichols to William Ashley. At the time this was done the American Exchange Bank did not have notice of any facts that would lead it to believe that Nichols had acted fraudulently in the sale of his stock of drugs and had thereby secured money with which to purchase the certified check from the Bank of Swifton. The American Exchange Bank of Leslie became the absolute owner of the -certified check when Nichols indorsed it in blank to the bank, and the -bank credited Nichols with $500 of this amount and allowed $3,000 of it to be used as a credit upon a note due by Nichols to Ashley, and no subsequent garnishment of the funds could .affect the rights of the bank. The -certified check became its absolute property when the transaction was closed..

As we have already seen, a cashier’s check is of an' entirely different nature to an ordinary check. It is a. bill of exchange drawn by a bank upon itself, and is accepted by the act of issuance. Hence there is no right of countermand, and the check would pass in the same manner as a bank bill, and, as above stated, become the absolute property of the bank at Leslie when it was indorsed by Nichols and the amount of it credited to his account and on a note owed by him to Ashley. This made the Bank at Leslie absolutely liable to Ashley for the' $3,000.

It follows that the.decree of the chancery court must be affirmed.


text:
    Drainage District No. 7 of Poinsett County v. Exchange Trust Company.
    Opinion delivered January 9, 1928.
    1. Public lands; — effect of certificate of entry. — When a certificate of entry is issued to a purchaser of government land, he acquires the equitable title to the land, and the legal title alone remains in the United States. '
    2. Estoppel — inclusion of lands in drainage district. — Where persons purchasing land from the United States petitioned for the lands to be annexed to a drainage district, and, after they acquired the equitable title thereto, the lands were annexed to the district, the benefits were reassessed, and the formation of the district and improvements substantially changed, held that the purchasers were estopped from attacking the validity of annexation proceedings and the assessment of benefits against their land.
    3. Evidence — judicial notice. — The court will take judicial notice of the length, width and depth of the Mississippi River and the encroachment of the river upon lands adjacent to it in times of flood.
    4. Evidence — judicial notice. — A court will take judicial notice of the vast area of territory of the United States which is drained into the Mississippi River, and the result of the action of the river in flood times upon its bank and levees along the bank.
    5. Levees and flood controls — assessment of united states land. —Lands of United States included within a levee district were not subject to special assessment for levee purposes, so long as they belonged to the United States; but when the final certificate was issued to purchasers, the naked legal title only remained in the United States, and the lands became thereafter subject to the annual assessment of levee taxes.
    Appeal from Poinsett Chancery Court; J. M. Futrell, Chancellor,
    reversed.
    STATEMENT OX FACTS.
    Appellee brought this suit in equity against appellants to enjoin them from levying and collecting drainage taxes and levee taxes upon his land.
    Drainage District No. 7 of Poinsett County, Arkansas, was organized under a special act passed by the Legislature of 1917. The act organized a drainage and levee district in Poinsett County, Arkansas, consisting - of certain lands, which are described in the act. The district was organized for the purpose of draining the lands described in its boundaries by a system of drainage ditches and levees and to enable said district to borrow money for the construction of said drainage ditches and levees. Acts of 1917, p. 1053. The district as originally formed consisted of lands west of the St. Francis Eiver, in Poinsett County.
    Eoy Eice and others owned lands in Poinsett County east of the St. Francis Eiver, comprising, in the aggregate, 3,290 acres. Their lands were flooded by the waters of a drainage district organized in Mississippi County, and, in. order to secure protection against the flood waters from the Mississippi County District and also to secure better drainage to their own lands, the landowners above mentioned in Poinsett County' east of St. Francis Eiver petitioned the county court to allow them to be added to Drainage District No. 7 of Poinsett County. On March 15, 1918, the petition for the annexation of the territory east of St. Francis Eiver in Poinsett County was acted upon by the county court, and the order of annexation was made. The order provides that there be levied against the lands annexed taxes in accordance with the benefits which said lands shall receive for the cost of draining, reclaiming and protecting the same. The board of directors of the drainage district consented in open court to the annexation of the territory to the district. On May 24, 1919, the drainage district altered its plans so as to provide for the drainage of the territory of the original district. This judgment recites the annexation of said lands and the confirmation of such annexation by act 35 of the General Assembly of Arkansas of 1919. See Special Acts of 1919, page 52.
    On June 28, 1919, the county court entered a judgment making a modification of the assessments because of the change of plans. The judgment recites that the estimated cost of the entire improvement has been increased to $3,392,000. On June 23, 1919, the county court confirmed the assessment made upon the lands annexed as well as the assessment upon all the other lands in the district. Nearly all the lands owned in the annexation to the district, including the land of appellee, belonged to the United States at the time the original district was organized in 1917. Practically all of the landowners in the annexation to the district had received their final certificates of entry prior to the 23d day of June, 1919, and all of them received their final certificates of entry or their patents during the year 1919.
    On April 5,1922, the board of directors filed a report in the county court that the assessment of benefits had become unequal, and offered a complete reassessment of benefits upon all the lands in the district, including the annexed lands. On May 31,1922, the county court entered an order establishing a readjustment of the assessment of benefits.
    ■St. -Francis Levee District was organized under an act of the Legislature of 1893. The act, as originally passed, was for the purpose of establishing that part of the St. Francis River basin lying within the State of Arkansas into a levee district. Acts of 1893, p. 24. The powers of the St. Francis Levee District are contained in that act and in the .subsequent acts of the Legislature ■supplementary xnd amendatory thereto. All the land in controversy was situated within the boundaries of the St. Francis Levee District as fixed by the original act creating it. -Other facts will be stated or referred to in the opinion.
    The chancellor found the issues in favor of appellee, and it was decreed that the Drainage District No. 7, Poinsett County, Arkansas, and. the St. Francis Levee District be enjoined from attempting to make an assessment of benefits or from the enforcement of any assessment of benefits on the lands of appellee within such drainage district and levee district. To- reverse that decree an appeal has been duly prosecuted to this court.

      Chas. D. Frierson and Maim & McCulloch, for appellant.

      Cooley, Adams S Fuhr, D. F. Taylor and J. A. Tellier, amici curiae, on behalf of appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancellor was based upon a holding that the facts in the case at bar bring it within the principles of law decided in Lee v. Osceola & Little River Road Improvement District No. 1 of Mississippi County, Arkansas, 268 U. S. 647, 45 S. Ct. 620, 69 L. ed. 1133, in which it was held that a State cannot impose special taxes on-lands acquired by private owners from the United States on account of benefits resulting from a road improvement made before the United States parted with its title.

It is earnestly insisted by counsel for appellants that appellee is estopped by his conduct from questioning the validity of the annexation proceedings under which his property was placed in Drainage District No. 7 of Poinsett County and an assessment of benefits made against It. On the other hand it is -claimed that, under the principles laid down by the Supreme Court of the United States in the Lee case, the doctrine of estoppel can have. no application, because the land of appellee belonged to the United States at the time the petition for the annexation proceedings was signed by appellee and other landowners similarly situated.

We do not think that the Lee case is decisive of this question. In that case the road improvement district was formed under the general statutes of the State providing for the establishment of road improvement districts, and the’ lands were what are known as lake lands or sunk lands, .just as the lands involved in the present appeal are known. These lands, however, were included in the organization of the district, and benefits were assessed against them as land of riparian owners. Subsequently the land was adjudged to belong to the United States, and the title passed from the United States to private landowners. The improvement was completed at the time the title to the land was in the United States, and the United States did not grant the improvement district any authority to assess benefits against lands owned by the United States. Neither did the claimants of the land do anything that could be said to have been a participation in the formation of the district or the construction of the improvement. Hence there was no element of estoppel in that case.

In Wight v. Davidson, 181 U. S. 371, 21 S. Ct. 616, 45 L. ed. 900, it was held that a constitutional right against unjust taxation is given for the protection - of private property, but that it may be waived by those affected who consent to such action to their property as would otherwise be invalid. This principle was recognized by the Supreme Court of the United States in the Lee case, but the effect of the opinion is that there was no element of estoppel under the facts of that case.

The ease of Nevada National Bank v. Poso Irrigation District, 140 Cal. 344-347, 73 P. 1056, is cited in support of the holding* of the United States Supreme Court. In the California case it was said that, if the grantee of the United States must take the land burdened with the liability of an irrigation district made to include it, without the consent of the government or the purchaser, it attaches a condition to the disposal of the property by the government without its acceptance or consent, and .which must in such case interfere with its disposal.

"We think the Lee case, then, expressly recognizes that the doctrine of estoppel may be invoked in a proper case like the one under consideration; but it could not be applied under tbe facts of that case, because there had been no assent to the imposition of the taxes by the United States or by its grantee.

It is not claimed that the United States assented to the imposition of the special taxes in the present case, but it is claimed that, after appellee became the beneficial owner of the land, he was guilty of such acts and conduct as would estop him from attacking the validity of the annexation proceedings and the subsequent assessment of his lands thereunder. It is true that appellee and others filed a petition in 1918 for the annexation of their lands to the drainage district, but the change of plans was not made and the assessment of benefits was not made until June, 1919, at which time appellee and the other landowners who petitioned for the annexation had received final certificates of entry from the United States. When the certificate of entry was issued to appellee, he acquired the equitable title to the land, and the legal title alone remained in the United States. The land, in effect, thus no longer belonged to the United States but to the purchaser. Witherspoon v. Duncan, 21 Ark. 240, affirmed in 4 Wall. (U. S.) 210, 18 L. ed. 339. In affirming the case, Mr. Justice Davis, speaking for the court, said:

“According to the well-known mode of proceeding at the land offices (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser, who has the equitable title.”

Continuing, the learned Justice said:

“That Congress has the entire control of the public lands, can dispose of them for money, or donate them to individuals or classes of persons, cannot be questioned. If tbe law on the subject is complied with, and the entry conforms to it, it is difficult to see why the right to tax does not attach as well to the donation as to the cash entry. In either case, when the entry is made and certificate given, the particular land is segregated from the mass of public lands and becomes private property. In the one case the entry is complete when the money is paid; in the other when the required proofs are furnished. In neither can the patent be withheld if the original entry was lawful.
“The power to tax exists as soon as the ownership is changed, and this is effected when the entry is made on the terms and in the modes allowed by law. If this were not so, those who, through the bounty of Congress, get a title to the soil, without money, would enjoy higher privileges and be placed on a better footing than the great body of persons who, by the invitation of the government, purchase lands with money. Such a discrimination could never have been contemplated by Congress.”

To the same effect see Wisconsin Railroad Co. v. Price County, 133 U. S. 496, 505, 10 S. Ct. 341, 33 L. ed. 687; and Bothwell v. Bingham County, 237 U. S. 642, 35 S. Ct. 702, 59 L. ed. 1157.

Pursuant to the annexation petition, the land of appellee and the land of others, comprising at least 3,290 acres, were annexed to the original drainage district and brought under the operation of the act creating it. The landowners voluntarily asked for the privilege of becoming subject to all its provisions. In effect they asked for the assessment of benefits on their land and that they should become subject to the provisions of the act just as the land contained in the original district. The commissioners of the drainage district assented to their request, and the county court acted upon it and changed the formation of the district and the improvements to be made thereunder in a substantial way. In the very nature of things the added district imposed a very much, larger expense- upon the property owners of the whole district in order to afford protection to the lands of appellee and others who desired to be brought undeir the provisions of the act creating the drainage district and to participate in the benefits to be derived therefrom. It.was necessary to- issue a very much larger bonded indebtedness in order to accomplish this purpose. The property owners in the original district assumed the larger additional indebtedness, relying upon the acts and conduct of the petitioners. By petitioning for the annexation of their lands to the district, appellee and others declared that they would submit themselves to all the responsibilities and burdens imposed by the original act. They purposely caused the authorities to believe this as a matter of fact. Belying upon their acts and conduct, the commissioners largely increased the bond issue and expended money in the construction of the improvements in the amended district so as to reclaim and protect the lands of appellee and the other petitioners for the annexation from the floods. They permitted their lands to be assessed in June, 1919, after they had become the beneficial owners of them. In 1922 the commissioners, under the belief that the old assessments had become unequal, made a complete reassessment of the benefits against all the lands of the district, including those who had petitioned for the assessment. They proceeded with the work under the amended plans, and appellee and other landowners similarly situated enjoyed the benefits. To now permit them to deny the assurance given by their own acts and conduct, which was continued during the progress of the work, would work a fraud upon the drainage district and the landowners situated within its original boundaries, and this -cannot receive the sanction of law. The drainage district and the commissioners thereof had no reason to believe that the petitioners for the annexation would allege any invalidity in the law which they were asking to have extended for the protection of their land. The drainage district and all interested under the original act have been'misled by the affirmative acts and conduct of appellee and others petitioning for the annexation of their lands to the district.

Hence we are of the opinion that appellee and those similarly situated are estopped from attacking the validity of the annexation proceedings' and the assessment of benefits against their land authorized for the construction of the drainage ■ district and levees contemplated under the act. Having expressly consented to the taxation of their land after they had become the beneficial owners thereof, and the drainage district having acted thereon and made large expenditures in reliance upon their consent, such consent cannot be withdrawn.

There is, however, no element of estoppel in the case against the St. Francis Levee District; for appellee, neither by his declaration nor conduct, did anything to induce the board of directors of the St. Francis Levee District to act in relation to the inclusion of his land within such district and to make an assessment of benefits thereon. If his land and the lands of others similarly situated are in the district and have become subject to an assessment of benefits for levee purposes, this results from the operation of law and not from any act or conduct of appellee and other landowners similarly situated.

It is not claimed that there is an act of Congress allowing* the lands in controversy to be assessed for levee purposes as are the other lands in the district. The St. Francis Levee District was created by the Legislature of 1893, and the powers of the board of levee directors are contained in that act and the acts supplementary and amendatory thereto. Section one of the original act provides that that part of the area of the St. Francis basin within the State of Arkansas is the territory included in the district. Acts of 1893, p. 24. The act contemplates an annual assessment of all the lands in the district subject to special assessment for levee purposes. The record shows that the action of the Mississippi River, which is on the eastern boundary line of the district, continually causes changes to be made in the improvement district. The channel of the river is continually shifting, and, in flood time, large portions of the levee are frequently destroyed and have to he replaced. The banks of the river itself are continually changing, and every overflow causes unexpected changes in the channel of the river, in the banks, and in the levee.

The record shows, that the plans for constructing the levees are of necessity constantly being revised to meet the changed conditions, and that the levee has not been constructed up to the standard prescribed by the United States.' In short, the changed situations caused by the flood waters make necessary a revision of construction plans so that no part could be completed according to the standard prescribed by the United States before it again became necessary to revise the plans. Indeed, the court will take judicial notice of the length, width and depth of the Mississippi River and the encroachment of the river upon the lands adjacent to it in times of flood. The court will also take judicial notice of the vast area of territory of the United States which is drained into the Mississippi River, and- the result of the action of the river in flood times upon its banks and the levees along the banks. When all the matters are considered, it is perfectly evident that the levee in question has never become a complete improvement within the meaning of the Lee case. To so hold would place a too limited or restricted meaning upon the word “complete.” The expression “completed improvement” is a relative term, and its meaning depends upon the connection in which it is used when read in the light of the object to which it refers. It was intended by the framers of the St. Francis Levee a'et and the acts amendatory thereto that all lands within the boundaries of the district should fall under the provisions of the act as soon as they come to be privately owned. There has been no act of Congress allowing the lands of the United States upon which no final certificate has been issued to become subject to special assessments for levee taxes, as was the case in Pierce v. Drainage District No. 17, 155 Ark. 89, 244 S. W. 342. Hence as long as the lands now owned by appellee belonged to the United States they were not subject to special assessment f'or levee purposes under the doctrine of the Lee case. When the final certificate was issued, however, the naked legal title only remained in the United States and the equitable title was in the grantee. The lands fell, by operation of law, within the provisions of the act creating the St. Francis Levee District,- and were subject thereafter to the annual assessments of levee taxes just as were all the other privately owned lands in the district.

The flood waters of the. Mississippi River come down with resistless force, and the consequent changes in its channel and the resultant encroachment on its levees make their construction and maintenance a continuing project, which, in the very nature of things, can nevetr be completed.

The result of our views is that the decree of the chancery court will be reversed, and the cause will be remanded with directions to dismiss the complaint for want of equity. It is so ordered.