text:
    Eddy v. State.
    Opinion delivered June 30, 1924.
    1. Intoxicating liquors — unlawful sale — sufficiency of evidence. — Evidence held to sustain a conviction of selling intoxicating liquors in violation of the laws of the State.
    2. Criminal law — conclusiveness of verdict. — The verdict of a jury in a criminal case will not be disturbed where the evidence is legally sufficient to support it.
    3. Continuances — discretion of trial court.— Continuances in criminal as well as in civil cases are in the sound discretion of the court, and a refusal to grant a continuance is never ground for a new trial unless it clearly appears to have been an abuse of such discretion and manifestly operates as a denial of justice.
    4. Continuances — -abuse of discretion — burden of proof. — Where accused did not ask for postponement of -the case for absence of a witness, but asked for a continuance for the term, and made no showing as to any probability of securing his attendance at any time in the future, no abuse of discretion in denying the continuance was shown.
    5. Intoxicating liquors — unlawful sale — instructions.—In a prosecution for unlawfully selling intoxicating liquors, there was no conflict between an instruction that the allegation in the indictment as to the time of the sale was immaterial if the sale was made within three years, and another that the State was required to prove that the sale was made on a certain occasion relied upon by the State.
    6. Criminal law — corroboration op accomplice. — As the purchaser of liquor is not an accomplice of the seller, it is not necessary that his testimony be corroborated.
    Appeal from Conway Circuit Court; J. T. Bullock, Judge;
    affirmed.

      Eades <& Eddy, for appellant.

      J. 8. Utley, Attorney General, and JoJvií L. Garter, Assistant, for appellee.
   Hart, J.

J. D. Eddy prosecutes this appeal to reverse a judgment and sentence of conviction against him for the offense of selling intoxicating' liquors, in violation of the laws ofdhe State.

J. A. Patterson was the principal witness for the State. According to his testimony, some time in the summer of 1923 he purchased a half of a gallon of moonshine whiskey from Dr. J. D. Eddy at his office in Blackville, Conway County, Arkansas, and paid him $6 for it. He bought the whiskey to be drunk by himself and two companions named Lake Lewis and Biump Overby. Overby furnished the money with which Patterson purchased the whiskey. Patterson said1 that he was in no sense the agent of Dr. Eddy, and bought the whiskey for himself and his two companions. He never bought any whiskey from Dr. Eddy at any other time and place.

Dr. J. D. Eddy was a witness for himself. According to his testimony, he never sold any whiskey at any time or place to J. A. Patterson.

Other witnesses for the defendant testified that he was not in Blackville on the occasion Patterson claims to have bought the whiskey from him.

The evidence for the State was sufficient to warrant the jury in finding a verdict of guilty. Under the settled rules of this court we cannot disturb the verdict of a jury where the evidence is legally sufficient to warrant it.

It is earnestly insisted, however, by counsel for the defendant that the court erred in not granting the motion of the defendant for a continuance. In his motion for a continuance the defendant states that Clyde Donald would testify, if present in court, that he was with J. A. Patterson on the occasion on which he testified that he bought the whiskey from the defendant, and would swear that they .got the whiskey from some unknown person outside, of the town of Blaekville, and that they did not buy any whiskey from the defendant on the occasion in question.

The court heard testimony on the motion. It appears from the record that the indictment was returned into court on the 4th day of March, 1924, and the motion for a continuance was filed on the 10th day of March, 1924.

The sheriff of Conway County was not able to find Clyde Donald and to serve a subpoena on him.

According to the testimony of Dr. J. D. Eddy, Clyde Donald was in the county about three weeks before this, looking for work. He was a single man, and had' no fixed place of abode. The defendant did not know where he was at this time.

The general rule is that continuances in criminal as well as in civil cases are in the sound discretion of the court, and that a refusal to grant a continuance is never ground for a new trial unless it clearly appears to have been an abuse of such discretion and manifestly operates as a denial' of justice. Allison v. State, 74 Ark. 444, and Wood v. State, 159 Ark. 671.

It will be noted that the defendant did not ask for a postponement of the case, but asked for a continuance for the term. The absent witness had no fixed place of abode, and it is not shown that there was any probability of securing his attendance at any time in the future. The burden was upon the defendant to show an abuse of discretion of the trial court in refusing to grant him a continuance, and this he failed to do. It follows that this assignment of error is not well taken.

The next assignment of error is that the court erred in not excusing for cause juror Guinn. The juror on his voir dire stated that he could go into the jury-box and try the defendant according to the law and the evidence, just as he could try him for any other crime. He had said previously that he had a prejudice against the crime of whiskey selling, but none whatever against the defendant. He testified in positive terms that he could give the defendant a fair trial, according to the law and1 the evidence, and that he had no feeling against him personally because he was charged with the crime of selling whiskey in violation of the statute.

Under the uniform decisions of the court, the circuit court was right in holding that the juror was qualified.

The next assignment of error is that the court erred in giving conflicting instructions to the jury. The instructions complained of are Nos. 10 and 11. These instructions are as follows: “10. Gentlemen of the jury, the indictment in this case charges that the sale was made on the 10th day of June, 1923. The court instructs you that that allegation as to the particular date is immaterial, and if you believe from the evidence that the sale was made at any time by Dr. J. D. Eddy to the witness, J. A. Patterson, at any time within three years before the finding of this indictment, you will find the defendant guilty by your verdict.”

“11. Gentlemen of the jury, you are further instructed that the State in this particular case relies upon a sale by Dr. J. D. Eddy to the witness, J. A. Patterson, on the occasion when Bump Overby of Cabin Creek and1 Lake Lends of Atkins were with him at Black-ville, and, unless you find him to have made a sale on an occasion when they were with him at Blackville, your verdict should be for the defendant. If you find that he did make a sale on such occasion, your verdict would be for the State, finding him guilty.”

There is no conflict whatever in the instructions. The prosecuting witness had testified that he bought the whiskey from the defendant some time in the summef of Í923. The indictment was returned in March, 1924. The object of instruction No. 10 was to tell the jury that the date of the commission of the crime was immaterial, provided that it was committed at any time within three years before the finding of the indictment. The object of instruction No. 11 was to advise the jury that the State relied upon only one sale, and that was the occasion testified to by the prosecuting witness in the summer of 1923. This instruction was favorable to the defendant in narrowing the consideration of the jury to the one occasion in question. When the two instructions are read together, they are rather explanatory than contradictory of each other. The court, in substance, and effect, told the jury that it must confine its consideration to the one occasion testified to by the prosecuting witness, but that the date when it occurred was immaterial, provided it was within the period of limitations prescribed by the statute. ;•

The next assignment of error is that the court erred in refusing to give instruction No. 10 asked by the defendant. The instruction reads as follows: ‘ ‘ Testimony has been offered1 in this case tending to show, if believed by you, that the prosecuting witness bought whiskey or liquor from the defendant (if you should find beyond a reasonable doubt that he did so buy), that he was a go-between, who took the liquor and gave it to other wit-, nesses who testified in this case, andfto other persons along the highway, in this county; if you should find from the testimony offered in this case that J. A. Patterson Avas such a go-between to take liquor from the defendant and1 peddle it out to others, then he would be what is knoAAm in law as an accomplice, and you could not convict the defendant upon his uncorroborated testimony. In other words, the law mil not allow you to convict a man upon the uncorroborated testimony of a person who is directly or indirectly interested in the perpetration of the offense, unless corroborated by other testimony tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows that an offense was committed and1 the circumstances thereof. There must be other evidence tending to connect the defendant with the commission of. the offense.”

There was no error in refusing to give this instruction. This court has held that the penalty of the statute is directed against the seller and not the purchaser, and that one who assists the purchaser in procuring the liquor is not an accomplice of the seller, and that therefore it is not necessary that his testimony should be corroborated. Wilson v. State, 124 Ark. 477.

According to the testimony of the defendant and his witnesses, he did not sell any liquor at any time or place to the prosecuting witness. According to the testimony of the prosecuting witness, he was in no sense interested in the sale of the liquor, but acted solely as the purchaser. Therefore there was no testimony upon which to predicate an instruction upon the alleged fact that the prosecuting witness acted as a go-between in the matter.

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


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Houston v. State.
    Opinion delivered June 30, 1924.
    1. Homicide — sufficiency of evidence. — In a prosecution for murder, evidence held to sustain a conviction of murder in the second degree.
    2. Homicide — admissibility of evidence. — Where defendant admitted the hiring hut claimed that the hilling was accidentally done on th" highway while riding in a car, testimony tending to contradict defendant’s testimony by showing that blood was found on the floor of deceased’s home and on the ground, and bullet holes in the wall, and the prints of automobile tires near a pool of blood, was competent as evidence trom which an inference might be drawn as to the manner in which deceased came to his death.
    3. . Homicide — relevancy of proof of bullet-holes. — Evidence that bullet-holes were found in the wall of deceased’s home a week after the killing, and that they were not there before the killing, was not too remote.
    4. Criminal law — evidence of test. — Where defendant testified that he accidentally shot deceased with a 32-caliber pistol while both were riding in an automobile, evidence as to a test of a pistol of the same caliber being shot at the same distance into deceased’s coat and making a much smaller hole was admissible as tending to prove that the deceased was not killed .y some one using a pistol of that caliber.
    .Appeal from Lawrence Circuit Court, Eastern District; Dene II. Colemcm, Judge;
    affirmed.
    Cr. M. Gibson, W. P. Smith, II. L. Ponder', for appellant.

      J. S. TJtley, Attorney General, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was tried under an indictment charging him with the crime of murder in the first degree, committed by killing Claude Anderson, and the trial resulted in appellant’s conviction of the crime of murder in the second degree.

Appellant admitted, before and during the trial, that Claude Anderson came to his death as result of the discharge from a pistol in the hands of appellant, who claimed that the killing was accidental. The principal contention here is that the evidence is not sufficient to sustain the verdict.

Appellant and Anderson were young men, near the same age, and both resided in the town of Walnut Ridge. Anderson was married, and he and his wife occupied a residence, consisting of five rooms, in Walnut Ridge. The killing occurred on the night of 'Sunday, September 16, 1923. Appellant claimed, and so testified in the trial, that, on the night in question, he and Anderson and three other young men, who lived in or about Walnut Ridge, took a ride in a Ford car, driving out on a macadamized road towards Jonesboro, and that, as they were on the return trip, the pistol was accidentally discharged while in appellant’s hand, the bullet taking effect in Anderson’s back. Appellant and his companions testified that Anderson’s death occurred in that manner. They testified that Anderson was occupying the front seat with the driver; that appellant was sitting on the rear seat, immediately behind Anderson; that appellant had the pistol in his hand, and was snapping it to see whether or not it would fire, when one of his companions remonstrated with him, suggesting that the pistol might go off and hurt somebody; that appellant replied that there was not a shell in the pistol, and at once attempted to put the pistol in his pocket, when it fired, and the bullet struck. Anderson. Witnesses testified that Anderson died immediately, and that appellant went to a house near by, the home of one Corcoran, and telephoned to a deputy sheriff at Walnut Ridge, informing the latter that Anderson had been accidentally shot and killed. This was between one and two. o’clock in the morning, and Corcoran testified about appellant coming to his house to use the telephone, and he stated in his testimony that appellant was intoxicated at the time. Officers" came out from Walnut Ridge, and the body was taken charge of by the coroner and carried to an undertaking establishment, where an inquest was later held.

Appellant admitted ait all times that he had fired the shot that killed Anderson, or, rather, that the pistol was in his hand at the time the shot was accidentally fired. Witnesses introduced by the State testified to numerous contradictory statements made by appellant as to the manner in which the killing occurred. Witnesses also testified that they examined the seat of the car on which Anderson’s body was found, and that there was no blood on the seat, and also that there were no powder burns on Anderson’s coat.

The proof shows that the bullet entered Anderson’s body in the back, several inches below the left shoulder-blade, and made its exit in front, on the right side, at about the same.level as the point of entrance. There was testimony of other witnesses besides Corcoran tending to show that appellant was intoxicated at the time the killing was reported.

Early on the Sunday morning in question Anderson took his wife to the country to visit her parents. He procured a man by the name of Williams to drive them out to the country in a car. According to the testimony of Mrs. Anderson, wife of the deceased, she and her husband put the house in order early that morning, closed and locked the doors, and started to the country with Williams, and that, after reaching the home of her parents, she got out of the car and remained there, and Williams and her husband started back to town. Mrs. Anderson remained at the home of her parents until the next morning, when- she was informed at an early hour that her husband had been killed during the night, and she then came back home.

The testimony shows that, during the day (Sunday), appellant and these young men with whom he was associated that night, and perhaps other young men, were riding about in a service ear, owned and operated by one of the young men — the same car in which they took the ride that night. Between nine and ten o’clock that night appellant, Anderson, and two or three others went to a restaurant to obtain something to eat, and, as they were leaving the place, appellant handed the young lady in charge of the restaurant an automatic pistol and asked her to keep it for him. The young lady testified that, in about fifteen minutes, appellant came back and asked for the pistol, and that she gave it to him, and that appellant at the time said, “The boys won’t let me go with them if I don’t take my gun.” Appellant testified that he had purchased the pistol, which was an automatic, the day before, and he admitted the conversation with the young lady at the restaurant. Appellant and his associates testified that they left town for a ride about eleven o ’clock, or a little later. Witnesses testified that, during the day in question, deceased had a watch on his person, and also twenty-five or thirty dollars in money., There is no showing in the record as -to what became of the watch and the money.

Mrs. Anderson testified that, when she returned home, early Monday morning, she found the front and back doors open, and the bed in the living room disarranged, as if some one had been lying on the bed. She testified positively that, before she left home Sunday morning, she made up the bed, and that the doors were locked when she and her husband left home. Mrs. Anderson’s father testified that, a little earlier than the arrival of Mrs. Anderson, he went to the house and found the front door closed but unlocked, and that the back door was open. Other witnesses who examined the premises Monday morning testified that they found a small pool of blood on the floor in the kitchen at Anderson’s home, and also found blood on the. back steps, and also a much larger pool of blood under the edge of the front porch. They testified that there was no fence around the yard, and that, near the edge of the front porch, there was the print of the wheels of a car — wheels of narrow tread.

The theory of the State, in introducing testimony to establish these facts, was that Anderson was not killed in the car, as claimed by appellant and his associates, but that he was killed in his own home, and afterwards his body was put in the car and taken out' on the highway. One of the witnesses introduced by the State testified that, about a week after the killing, he examined the rooms in Anderson’s house and found three bullet-holes in the wall, that the bullets appeared to have been fired from a 32-ealiber pistol. Other witnesses testified that, about two weeks before the trial, which was perhaps five months after the killing, they also examined the house, and found and examined the three bullet-holes. Mrs. Anderson testified that, up to the time she and her husband left home on the Sunday morning in ouestion, the bullet-holes were not in the wall. She testified that she went back to the house about a month before the trial, and was shown the bullet-holes, and that they were not there at the time she and her husband left the house on the Sunday morning in question. Another witness, who lived about two blocks from Anderson’s home, testified that, on the night of the killing, he heard three shots in the direction of the Anderson home, shortly after eleven o’clock, and that the shots sounded like they were fired from a revolver or a pump-gun.

"We are of the opinion that the evidence was sufficient to sustain the verdict. The statute provides that, when the killing is proved, “the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” Crawford & Moses’ Digest, § 2342.

Appellant admitted that Anderson came to his death by a pistol shot fired from appellant’s own hand, therefore this statute was applicable. Appellant attempted to meet this burden by showing that the shot was accidental, but the jury has, by the verdict, rejected the explanation of appellant and his associates and found that the killing did not occur in that manner. The evidence justified the jury in reaching that conclusion. The jury could have found from the evidence that the explanation was unreasonable, in that the killing could not reasonably have occurred in the manner claimed. There are three facts established by the State’s evidence which are inconsistent with the explanation of appellant and his associates, or .could reasonably be so treated. One is that there were no powder burns on the coat of deceased, showing that the pistol was not fired at as close range as claimed; another, that there was no blood found on the seat of the car; and another, that the location and range of the wound are such as to show that the pistol was not fired while in appellant’s hands as he sat on the rear seat of the car. We do not mean to say that the testimony-shows indisputably that the killing could not have occurred in the way claimed by appellant, but we do say these facts warranted the jury in .drawing the inference that the killing did not occur in that manner — in other words, that the deceased was not accidentally shot while in the car, as claimed by appellant. Appellant’s contradictory statements are also of some force in testing the truth of his explanation of the killing.

The testimony adduced by the Sta;fce showing the condition of the house and premises of deceased immediately after the-night of the killing with respect to having been used,'blood being on the floor and on the ground, and the bullet-holes in the wall, and the prints of automobile tires near the pool of blood under the edge of the porch, was sufficient to warrant the inference that an act of violence had been committed at the house that night, and, it being the home of the deceased, the inference was warranted that deceased came to his death at that place, and not elsewhere. Appellant objected to the introduction of all that testimony on the ground that he was not shown to have been at the house, or in any other way connected with any occurrence that might have transpired at the house. The testimony was competent, for, after the killing was admitted or proved as the act of appellant, it was competent for the State to introduce proof of any fact or circumstance from which an inference might be drawn as to the manner in which deceased came to his death.. These facts and the inference to be drawn therefrom tended to contradict appellant and his associates in their claim that Anderson was killed in the oar and that his death resulted from an accident. The proof in regard to the missing money and watch which deceased had in his possession immediately prior to the killing was competent to establish a motive for the killing, so as to enable the jury to determine whether or not the killing was accidental or wilful.

It is contended that the proof in regard to the presence of bullet-holes in the wall of Anderson’s house was incompetent for the reason that the finding of the bullet-holes was too remote in point of time from the killing. The testimony, as before stated, shows- positively that the bullet-holes were not in the wall on Sunday morning when Anderson and his wife left there, and that the holes were in the wall and found there by witnesses about a week later. Appellant relies upon the decision of this court in the case of Darden v. State, 73 Ark. 315, where we held, in a homicide case, that proof of a hole resembling a bullet-hole in the hub of a wagon, found about four or' five days after the commission of the homicide,’ was not competent. In that case the proof was not definite as to its being a bullet-hole in the hub of the wagon, and, there being no account given of where the wagon had been during the intervening time, the decision of'-the court in that case is not applicable here. The question,-' of course, in determining the competency of the evidence is whether or not it is shown with reasonable certaiii-ty, or whether the jury may infer with certainty, that 'the conditions were the same as at the time or' immediately after the occurrence of the homicide. In Abston v. State, 154 Ark. 59, we decided that proof of the finding of dynamite in a stump near the scene of an attempted act of violence committed by conspirators, the finding of,; the dynamite being about two weeks after -the unlawful occur-, ren.ee, was competent on the ground that the circumstances were such that the jury might reasonably have inferred that the dynamite was put -there about the time of the commission of the unlawful act. We are of the opinion that, in the present case, the finding of the bullet-holes was not too remote in point of time to make the testimony incompetent. The proof as to the holes being made by bullets was definite, and the fact that three bullet-holes were found in the wall was such an unusual circumstance as might be taken into consideration by the jury in determining whether or not they were put there on the night of the killing, when shots were heard in thé direction of the house, no proof being made as to any being fired thereafter. We are of the opinion that the court did not err in allowing the witnesses to testify concerning the presence of the bullet-holes in the wall.

During the progress of the trial the clothing removed from the body of deceased was introduced in evidence, and a hole in the coat, corresponding with the place in the back of deceased where the bullet entered his body, appeared to be a large, jagged hole. Witnesses for the State took the coat outside and placed it around a tree, and fired shots into it from the pistol which appellant admits was used when deceased came to his death; and these witnesses then testified, and exhibited the coat with the new holes in it to demonstrate that the original hole in the coat could not have been made by a bullet fired from a pistol- — that it was too large a hole to have been made by a bullet. This testimony was -objected to. The ground of objection is that the conditions were different from those under which the -original shot was fired; that is to say, that there might be a difference between the effects of a bullet fired1 through the coat while it was on the body of a man and while wrapped around a rigid substance like -a tree. The authorities are unanimous in holding that the result -of tests, in order to be -competent as evidence, must be made under substantially identical conditions, not absolutely identical but substantially identical. St. L. I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101. The conditions under which the different shots were fired were not so widely different as to render the tests incompetent. The jury, of course, had the right to, and presumably did, take into consideration slight differences in the conditions under which the shots were fired and the difference in'the effect of the shots, if any. The witnesses described to the jury the manner in which the tests w'ere -made, and the jury doubtless drew their own conclusions as to whether or not the test constituted a fair demonstration of the effect of a bullet fired from that pistol through the coat. We think there was no error in admitting this testimony, nor is there any other error in the record, so far as we are able to discover.

The judgment is therefore affirmed.

Wood and Humphreys, JJ., dissent.


author: Hart, J.

text:
    Clear Creek Oil & Gas Company v. Bushmaier.
    Opinion delivered July 7, 1924.
    1. Evidence — parol evidence to explain writing. — While parol evidence is not competent- to contradict or vary the terms of a ' written contract to show what is intended, it is admissible to ■explain the surrounding circumstances and situation and relation of the parties at the time of the execution of the contract, . in order to explain all terms and phrases which are used in a technical, special or local sense.
    2. Oil and gas — public service company — operation op wells. — A public service company, operating gas wells on a royalty basis and being required to keep on hand a reserve supply of gas, is not required to operate all its wells at full capacity at all times, •but has a right to operate them in such manner that each one shall furnish its proportionate part of the gas used by the consumers.
    3. Oil and gas — market price at well. — Under an agreement of a public service company to pay a royalty of one-eighth on the basis of the market price at the well, where there was no market price at the well, and the price paid at the nearest market was ten cents per 1,000 feet, the company was liable on that -basis, deducting -the cost of transporting and distributing the gas to the consumers.
    Appeal from - 'Crawford Chancery Court; J. V. Bowrlcmd, Chancellor;
    reversed.

      E. L. Mattock and Pryor & Miles, for appellant.
    Where there is no adequate market, the value of personal property may be fixed by proof of the value at the nearest available market, with proper additions or •deductions for cost and risk of transportation. 53 Ark. 27; 92 Ark. Ill; 121 Ark. 150. The acceptance of the checks for the royalties from month to month estops appellees. Clear Creek Oil & Gas Co. v. Bnshmaier, 161 Ark. 26; Clear Creek Oil & Gas Co. v. Brnmk, 160 Ark. 574.

      Chew <& Ford, for appellee.
   Hart, J.

The Clear Creek Oil & Gas Company prosecutes this appeal to reverse a decree against it in favor of W. S. Bushmaier and wife for an accounting under a gas lease.

It appears from the record that the Clear Creek Oil & Gas Company is a public service corporation furnishing natural gas mainly to industrial consumers in the cities of Van Burén and Fort Smith, Arkansas. W. S. Bushmaier and his wife own a tract of land containing 106 acres in Crawford County, Arkansas. In February, 1919, by á contract in writing, they leased said tract of land to the Clear Creek Oil & Gas Company to be explored for oil and gas for the period of time designated in the lease. The lessee drilled two wells on the premises, and brought in two high-pressure gas wells. The Clear Creek Oil & Gas Company operated twenty-five wells in the gas field during the year 1921. Six of these wells are operated under contracts similar to the one in question. The lease from W. S. Bushmaier and wife to the Clear Creek Oil & Gas Company, with reference to the payment of royalty, contains the following:

“That if the said second party (appellant) shall market any gas from any well producing gas only, then the party of the first part shall receive therefor at the rate of one-eighth of all gas marketed from such wells, payable monthly on the 20th of such succeeding month.”

“It is agreed that the market price of royalty gas at the well at the time shall be the basis upon which royalty shall 'be paid.” * * *

“And it is also agreed that a failure to operate any well or wells, mine or mines, on the within described premises, when the same must be done at a loss to said second party, shall not work a forfeiture of this lease.”

Some of the wells operated by the Clear Creek Oil & Gas Company in 1921, and used by it in supplying its industrial consumers, were low-pressure wells, and could not be operated in- cold weather. For this reason, during the summer months the two wells in question in this case were shut off and the gas was taken from the low-pressure wells. The Clear Creek Oil & Gas Company operated all its gas wells in this field in such a manner as to give each one the proportionate amount of gas which it would furnish. Meters were placed at each well so that the flow of gas could be measured there, and each well was given its proportionate amount of the gas furnished by the Clear Creek Oil & Gas Company to its consumers'. Other owners of gas wells in that field were paid 2y2 cents per 1,000 cubic feet as royalty. This was the price that other producing companies were paying for gas in that field. Industrial consumers in Fort Smith and Yan Burén paid the Clear Creek Oil & Gas Company 10 cents per 1,000 cubic feet for gas, and it cost the company 3y2 cents per 1,000 cubic feet to transport and distribute the gas.

It was the opinion of the court below that the lessor should receive royalty on the basis of 10 cents per 1,000 cubic- feet, and that no deduction should be made for transportation and distributing charges.

The chancellor was also of the opinion that the Clear Creek Oil & Gas Company had no right to shut down the gas wells during the summer months, and divide the amount of gas which it furnished industrial consumers proportionately with the owners of the gas wells operated by it.

A decree was entered in accordance with the finding of the chancellor.

It may be stated at the outset that the question of any loss or damage suffered by the landowners by gas being drawn from their wells by reason of wells on adjoining lands does not arise under the facts of this case.

We are of the opinion that the decree of the chancellor was wrong.. The lease provides that a failure to operate any well on the premises when the same must be done at a loss to the lessee shall not work a forfeiture of the lease. While parol evidence is not competent to contradict or vary the terms of a written contract to show what is intended, we are of the opinion that it is admissible to explain the -surrounding circumstances, and the situation and relation of the parties, at the time of the execution of the contract, -in order to explain all terms and phrases which are used in a technical, special, or local sense. This aids the court in determining what the contract means when its language, either in its literal sense or as applied to the facts, is obscure. Brown & Hackney v. Daubs, 139 Ark. 53, and cases cited; and Stoops v. Bank of Brinkley, 146 Ark. 127.

Now, according to the evidence for appellant, which is undisputed, it was a public service . corporation engaged in furnishing natural gas to manufacturing plants and other industrial consumers in the cities of Van Burén and Fort Smith. The amount of gas used at different seasons of the year varied, and, in order to supply its consumers, it was necessary to drill or lease wells producing more gas than was actually necessary to supply such consumers. In other words, it was necessary for the public service corporation, in order to properly supply consumers using natural gas furnished by it, to keep on hand at all times a reserve supply of gas. In order to do this, it drilled wells on the lands of various owners in the gas fields, and paid them either a flat rate or a royalty.

Thus it will be seen that, if the public service corporation should- pay the owners of gas wells for gas which it never furnished its consumers, it would have to raise the price of gas to its consumers. It will be remembered that the public service corporation is only entitled to a fair equivalent for the service performed by it. It would be only entitled to charge the consumers a fair price for the gas furnished them.

When all these facts and circumstances are taken into consideration, we are of the opinion that the language of the lease referred to a practical operation of the gas wells, and that the company would not he required to operate all its wells at full capacity at all times, but that it might operate them in such a manner as to furnish gas to all its consumers and to keep a sufficient reserve supply on hand to meet future demands or emergencies; It is evident that it could not do this if all the wells were operated at full capacity. The result of such a policy would be disastrous to manufacturers and other industrial plants using natural gas supplied by it.

Therefore we are of the opinion that the company had a right to operate all'its wells in such a manner that each one should furnish its proportionate part of the gas used by the industrial consumers. In this view of the matter, the Clear Creek Oil & Gas Company had a right to shut down the two wells.drilled on the land of Bushmaier for such length of time as might-be necessary in order to give the owners of its other wells their proportionate part of the gas furnished to industrial consumers.

It is next contended on the part of the Clear Creek Oil & Gas Company that, under the lease Contract, it was only required to pay Bushmaier' 2% cents per thousand cubic feet for the gas taken from his wells. This, it contends, is the price paid by other producing -companies to owners of gas wells in the same field.

We do not agree with counsel in this contention. It will be noted that the contract provides that the market price of royalty gas at the wells shall be paid. The tes-' timony shows that there was no market for gas at the wells. The Clear Creek Oil & Gas Company furnished gas from its wells to industrial plants in the cities of Van Burén and Fort Smith, which were several -miles distant. Its industrial consumers paid it the sum of 10 cents per 1,000 cubic feet for gas. It cost the company Sy2 cents per 1,000 cubic feet to transport and distribute the gas at these industrial plants. This left a net price of 6y2 cents per 1,000 cubic feet, which wfe find to be the market price of the gas. ’

The general rule is that, where a party contracts to deliver goods or other products' at a particular time and •place, and no payment has been made, the true measure of damages is 'the difference between the contract price and that of like goods or products at the time and place where they should have been delivered.

On the other hand, if there be no market value at the place' of delivery, the value of the goods or other product should be determined at the nearest place where they have a market value, deducting the extra expense of delivering them there. The prices prevailing at the nearest place where the product can be sold, less transportation and distributing charges, show the value of such product at the place of delivery as nearly as it is possible to show such value. Jones v. Railway, 53 Ark. 27; St. L. S. W. Ry. Co. v. Kilberry, 83 Ark. 87; Kirchman v. Tuffli Bros. P. I. & C. Co., 92 Ark. 111; K. C. Sou. Ry. Co. v. Mabry, 112 Ark. 110; and Allen v. Northern, 121 Ark. 150.

From the views we have expressed it necessarily results that the chancellor proceeded upon the wrong basis in fixing the amount due under the lease by the Clear Creek Oil & Gas Company to W. S. Bushmaier, and, for this error, the decree must be reversed.

Upon the remand of the case the chancery court will be directed to ascertain what amount, if any, is due by the lessee to the lessor for gas furnished under the rule laid down in this opinion, and for further proceedings in accordance with the principles of equity.


author: Smith, J.

text:
    Adams v. State.
    Opinion delivered July 7, 1924.
    1. Homicide — sufficiency of evidence. — Evidence held to sustain a conviction of murder in the second degree.
    2. Criminal law — argument of prosecuting attorney. — It is not reversible error for the prosecuting attorney to make an argument based upon a misunderstanding' of the testimony of a witness.
    3. Criminal law — argument of prosecuting attorney. — Where the prosecuting attorney stated that there were more killings in the county than in England, and that if the juries did not take • to convicting somebody there would be still more, the prejudice, if any, was removed where the court told counsel to confine his argument to the evidence.
    Appeal from Union Circuit Court; L. S. Britt, Judge;
    affirmed!

      Pat McNalley, for appellant.
    J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was indicted and convicted for killing Jess Jiles on the 7th of October, 1923. Mrs. Jiles had formerly been the wife of appellant, and three children had been born of their union. According to the testimony of appellant, he had been visiting and contributing to the support of these children after being divorced from their mother, and, on the day of the killing, he sought to see the oldest child, a daughter, to ascertain from her what books she would require in school. He testified that Jiles objected to his visiting at the Jiles home to see the children, and his practice was to walk or drive by the house until some one of the children saw him, when the other children would be notified of his presence, and they would come out into the road to see him and receive such gifts as he had brought them. That, on the day of the killing, he desired to see his daughter, and for that purpose drove by Jiles’ house. Not seeing any of the children, he drove by the house for a short distance, when he turned his car in the road and returned. He drove back by the house without seeing the children, but saw Jiles in the yard, and, after driving about sixty yards beyond the house, he stopped his car and looked back to see if any of the children were in sight. None of them were, but Jiles saw him stop, and came to the car and began to curse and abuse him, and he drove away. Still desiring to see the children, he returned and stopped his car near Jiles’ home, and Jiles stepped from behind a tree and commenced firing at him with a double-barreled shotgun, and fired two shots, one of which broke the windshield of his car and knocked him. out of the car, and, believing he was about to be killed by Jiles, he fired at Jiles, and killed him.

Appellant admitted doing his share of the cursing, and that he had his gun in the car during the time he was driving, but said he had borrowed the gun to go hunting oil the following day, in accordance with an appointment which he had made the preceding day.

It is the theory of the State that bad blood existed between the men, and both were willing to shoot it ont, and that appellant had armed himself for the purpose of shooting Jiles.

A neighbor named Smith testified that he saw appellant stop at Jiles’ house, and that he had heard loud and angry talking, and heard Jiles tell appellant to leave, and heard appellant say he would leave when he was “damn ready.” Jiles went to the home of Smith and sought to borrow a gun, and, failing to secure one there, he procured one elsewhere, and, when Jiles left home, appellant drove to Smith’s house, where he turned his car around. Smith observed the gun in appellant’s car, and saw appellant change its position, and he testified that appellant was “fooling with the gun.” Smith thought appellant had mistaken him for Jiles, so he stood up, and, when he did so, appellant put the gun down in the car, but it was near the steering-wheel, and the barrel extended out of the car.

According to Smith’s testimony, only a few minutes elapsed between the different trips appellant made by Jiles’ home, and, on the third of these trips, appellant stoppéd his car and commenced cursing the occupants of the house, and announced that if any of them stuck a head out he would shoot it off. Just then Jiles came out of the woods on the other side of the road and stepped behind a tree, and ordered appellant to leave, and, when appellant failed to do so, Jiles commenced firing. Appellant got out of his car, or fell out of it, and lay down behind the ear. Jiles went into his house, and, in five or ten minutes, came out of his front door, when appellant, who had by that time got back into his car, fired at Jiles, and killed him.

A number of witnesses gave testimony tending to contradict and to support the respective theories of the case; but we think the testimony set out above is legally sufficient to support the verdict of the jury, finding appellant guilty of murder in the second degree.

What we have just said disposes of the assignment of error that the verdict is not supported by sufficient testimony.

Special counsel argued that Smith had testified that appellant was fooling with his gun at Jiles’ house, whereupon appellant’s counsel objected to the argument, and asked the court to reprimand counsel for making it, and to tell the jury that the argument was unsupported by the testimony. The court declined to state what the testimony of the witness had been, but did tell the jury to consider only the testimony of the witness.

It is not reversible error for the prosecuting attorney to make an argument based upon a misapprehension of the testimony of a witness. A different question would be presented had he argued as a fact some proposition about which there was no testimony. But the jury heard the witness testify, and it was their province to determine what the witness’ testimony had been. The witness did testify that appellant was fooling with the gun, but he did this at witness’ house, instead of at Jiles’ house. Still this was a proper circumstance for the prosecuting attorney to argue. The houses were not far apart, and it was fair to argue that appellant, in “fooling with his gun,” was getting it ready for convenient and immediate use, although the “fooling” occurred at Smith’s house, instead of Jiles’.

During the progress of the argument, counsel for the State said there were more killings in Union County, where the killing in question occurred, than there were in England, and that, if the juries did not take to convicting somebody, there would be still more. Objection was made to this argument, and the court stated to counsel who had made the argument that he should stay within the record, and the court stated to the jury that they would consider only the evidence in the case. It is insisted that this argument was improper and prejudicial, and that the remarks of the court were not sufficient to remove the prejudice.

It is difficult to say just to what extent prosecuting attorneys may go in appealing to juries to enforce the law, and much must be left to the discretion of the trial judge. A prosecuting attorney would, of course, have no right to appeal to a jury to convict a man, whether he was guilty or not, for any purpose; but such does not appear to have been the purport of the argument here.

It is legitimate argument for the prosecuting attorney to state that a failure to enforce the law begets lawlessness, and this evidently was the interpretation the court placed upon the argument. In any event, the court told counsel to confine his argument to the evidence, and told the jury to consider only the evidence in the case, and we must presume, in view of this admonition, that the jury, as sensible men, knew they could not convict appellant unless the testimony in the case required that this should be done. Blackshare v. State, 94 Ark. 548.

No error appears, and the judgment is affirmed.


text:
    France v. Butcher.
    Opinion delivered July 7, 1924.
    1. Quieting title — plaintiff’s title. — In an action to quiet title plaintiff must recover, if at all, upon the strength of his own title and not upon the weakness of his adversary’s title.
    2. Quieting title — burden of proof. — In an action to quiet title where the plaintiff relies upon title by adverse possession, the burden of proof is on him to establish the facts which constitute adverse possession.
    3. Adverse possession — payment of taxes — payment by grantor.— While Crawford & Moses’ Dig., § 6943, gives the benefit of the act to a party where “he and those under whom he claims shall have paid such taxes for at least seven years in succession,” the persons “under whom he claims” can only be construed to mean persons in the line of title who made payments while they were claiming title, and payments made by a grantor after he had parted with the title do not inure to the benefit of his grantee.

      Appeal from Arkansas Chancery Court; John M. EUiott, Chancellor;
    affirmed.

      B. D. Bascoe, Geo. W. Hays and William F. Kirby, for appellant.
    1. Appellant and his grantors have been in possession and paying taxes under color of title for 32 years, i. e., since the State deed to Henry in 1875. There is no defect appearing on the face of this deed, and the presumptions are all in its favor. It is prima fade valid, and constitutes color of title, as does each of the succeeding deeds. C. & M. Digest, § 6666-6669; 131 Ark. 273; 139 Ark. 211; 48 Ark. 185.
    2. Appellant’s possession was' adverse. Payment of taxes cured all defects and perfected appellant’s title. C. & M. Dig. § 6943; 109 Ark. 281; 131 Ark. 22; 131 Ark. 83; 157 Ark.. 97; 124 Ark. 379.'
    3. The State’s deed to .appellee Butcher is void on its face and does not constitute color of title. 140 Ark. 367; 131 Ark. 273; 135 Ark. 592. A tax sale en masse for a lump sum is invalid, and a tax deed which shows on its face that separate lots in an incorporated town were so sold is void. 83 Ark. 74; 138 Ark. 194; 224 S. W. 619; 148 Ark. 653, Appellee holds as a trespasser. 131 Ark. 273. The two-year statute of limitation was not put into ■ operation by such void deed. 93 Ark. 176; Í52 Ark. 368; 152 Ark. 315.
    4. Appellee was not entitled to recover taxes paid under the void deed, nor the value of improvements. 140 Ark. 367; 131 Ark. 273; 143 Ark. 92; 120 Ark. 620. Having made improvements within two years from the date of his purchase, appellee is not entitled to recover under the provisions of C. & M. Digest, § 10120, and, not having purchased at a tax sale and not having a clerk’s deed therefor, he cannot recover under § 10117, Id.

      C. E. Pettit and W. A. Leaeh, for appellee.
    1. On the issue of adverse possession, the burden is always on the party who asserts it. 117 Ark. 579; 110 Ark. 572; 61 Ark. 464. And where payment of taxes is made an element of title by adverse possession under the statute, the burden of proof is on the party setting up adverse possession to show such payment. 1 Cyc. 1144; 82 Ark. 51; 76 Ark. 426.- In a controversy between the true owner and an adverse claimant, where the proof shows payment of taxes by the true owner for a number of years prior and subsequent to a particular year, but is . silent as to that year, the presumption is that the true owner paid the taxes for that year. 37 Cyc. 1167. Here the appellant is not shown to have been the owner at the time the payment of the taxes of 1898 was made; and payment for that year by the appellant was necessary -to complete his title. If the taxes for that year were paid by any of appellant’s predecessors, they were paid by Leslie, and the proof falls far short of showing payment by him. Had the trial court found that he paid the taxes for that year, it could not, under the holding in Reynolds v. Snyder, 121 Ark. 33, be upheld.
    2. If the appellant had been in actual possession and had been dispossessed by appellee, the rule he seeks to invoke would apply; but there is no contention by appellant that appellee ousted or dispossessed him when the latter took possession, and the rule as to trespassers does not apply. Constructive possession always follows the legal title, but not so actual possession. 110 Ark. 534; 39 Ark. 712. Where no legal title is shown in either party, the party showing prior possession in himself or those under whom he claims will be held to have the better right. 15 Cyc. 30.
    , 3. The cases cited in support of appellant’s contention that appellee is not entitled to recover for taxes paid and improvements made are not in point. In cases where the deed is void for uncertainty of description, the purchaser at the tax sale may recover for taxes paid and improvements made, if he can show or identify the lands mentioned in his deed as the lands on which the taxes were paid and improvements made. 50 Ark. 484. See also C. & M. Digest, §§ 3703, 3708, 10117.
   McCulloch, C. J.

This litigation involves the title to, and right of possession of, lots in the town of Gillett, described as lots 1, 2, 3, 4, 5, and 6, of block 18. Both parties claim under a tax title. Appellant’s claim originated with a tax sale in the year 1872, whilst appellee’s claim originated in a forfeiture to the State in the year 1908 for the taxes of 1907, and a conveyance by the State Land Commissioner to appellee May 19, 1911. Appellee also claims title by adverse possession on account of the payment of taxes continuously for seven years. The action was instituted in the chancery court of Arkansas County by appellant against appellee to cancel appellee’s tax title and recover possession of the land. . •

It is alleged in the complaint that the tax sale in 1908, under which appellee claims, was void by reason .of the fact that the six lots were sold en masse. Appellee answered, denying that the tax sale was void, and alleging that the sale under which appellant claims is void on the same ground as the charge in the attack upon the tax sale under which appellee holds. In other words, each charge of invalidity with respect to the tax sales is based on the same ground, and it is conceded now that each of the sales was void.

■ Appellee, in his answer, denied that appellant paid taxes for seven years in succession. Appellee took actual possession of the lots immediately after he received the deed from the State Land Commissioner on May 19, 1911, and fenced the lots and remained in possession up to the commencement of this suit, which was less than two years, however, as the action was commenced in April, 1913. Appellee pleaded the statute of limitations, but it is obvious that the plea is not sustained, for the reason that he did not actually occupy the property as long as two years before the commencement of the action.

Appellee has raised no question below as to the jurisdiction of the chancery court. Appellant being out of possession, his proper remedy was to sue to recover possession, but,-if objection had been made below, the action could have been transferred to the law court, and, as no such motion was made, we must treat the question as waived.

We come then to the question whether appellant has shown title by adverse possession on account of payment of taxes for seven years. There is a stipulation in the record, the effect of which is to establish the fact that the lots in controversy were “unimpfoved” and “uninclosed” within the meaning of the statute (Crawford & Moses’ Digest, § 6943), which provides that such land “shall be deemed and held to be in possession of the person who pays the taxes thereon, if he have color of title thereto, but no person shall be entitled to invoke the benefit of this act unless h.e and those under whom he claims shall have paid such taxes for at least seven years in succession, and not less than three of such payments must be made subsequent to the passage of this act.” Act March 18, 1899. The lots were sold, as we have already seen, for the taxes of 1907, and appellee paid the taxes subsequent to the acquisition of his tax title,’ hence appellant’s adverse possession must have ripened into title, if at all, prior to the year for the taxes of which the sale was made. In other words, there must have been the requisite payment of taxes to constitute adverse possession prior to the year 1907.

The tax sale of these lots in 1872 was to the State. The lots were sold by description as acreage property,being included in a certain subdivision according to the government survey. J. P. Henry purchased that subdivision from the State on June 24, 1875, and that title comes on down to appellant by deeds from Henry to T. H. Leslie January 23, 1879, and Thomas PI. Leslie to PI. Gr. Leslie, September 15, 1882; sheriff’s deed to Robert Poage under execution sale under judgment against H. Gr. Leslie, September '25, 1900, and from Robert Poage to appellant April 5, 1913. Appellant also presents a chain of title beginning with a deed from H. Gr. Leslie to John Wisdom on June 6, 1904; deed of Wisdom to Wil.liam Montgomery Brown, Episcopal Bishop, June 30, 1904, and deed from James R. Winchester, Episcopal Bishop, to appellant, dated December 4,1912. Appellant also shows a deed from Wisdom to himself, dated June 24, 1912.

It is apparent from the above recital that the claim under the tax title passed to H. Gk Leslie and then to Poage, under the execution sale in 1900.

We are of the opinion that the payment of taxes by appellant’s grantors was not sufficient to constitute an investiture of title by adverse possession, for two reasons. No claim of a' payment prior to the year 1898 can be included as a part of the requisite number of payments to constitute adverse possession, as the proof does not show who paid the taxes for the year 1898 or the year 1905. Records were introduced to show that the taxes were paid for those years, but not the individual who made the payments.

The plaintiff must recover, if at all, upon the strength of his own title, and not upon the weakness of the title of his adversary, and the burden of proof is therefore on him to establish the facts which constitute adverse possession. Gaither v. Gage, 82 Ark. 51; Newman v. Peay, 117 Ark. 579; Cotton v. White, 131 Ark. 273. There is no presumption that any one paid the taxes other than the true owner, even though payments for prior and subsequent years were established.

' Another?1 reason why the payment of taxes is not available to appellant as an investiture of title-is that, if all the payments for seven years were in fact made by H. Gr.' Leslie, as claimed by appellant, the payments did not inure to the benefit of appellant, for the reason that Leslie was not privy to the chain of title under which appellant claims at the time all of the respective payments were made.' Leslie’s title was divested by the execution sale in the year 1900, and that title passed under the deed of Poage. Leslie undertook to convey to Wisdom in the year 1904, and whatever interest he had to convey at that time, if' any, passed to appellant under mesne conveyances. Now, the most of the payments made by Leslie which appellant could claim the benefit of would be the payments prior to 1904, for, after that time, Leslie was not privy to the chain of title under • which appellant holds. The evidence shows that the taxes were paid by Leslie for the years 1900 to 1904, inclusive, and, if we could indulge the presumption that Leslie paid also for the years 1905 and 1906, these payments would not be available to appellant, for the reason above stated, that Leslie was not privy to the chain of title after his last conveyance under which appellant holds. It is true that the statute gives the benefit of tax payments made not only by himself, but also for payments made by “those under whom he claims,” but this can only be construed to mean persons in the line of title who made payments while they were claiming title. After parting with the title, a grantor is a stranger to the title, -and payments made by him do not inure to the benefit of grantees under his deed. After parting with title, such a person has no color of title, and therefore his payments avail nothing by way of establishing title by adverse possession.

The decree of the chancery court was correct, and the same is therefore affirmed.


text:
    Bayou Meto Drainage District v. Ingram.
    Opinion delivered July 7, 1924.
    1. Drains — district lying in two counties.- — Under Acts 1921, p. 388, amending Crawford & Moses’ Dig., § 3607, the circuit court is given jurisdiction in cases where a drainage district embraces lands in more than one county.
    2. Drains — extension op boundaries. — Crawford & Moses’ Dig., §§ 3625, 3628, and 3630, authorize a change of the plans of a drainage district and an extension of the boundaries to include benefited land's at any time before the completion of the improvement as originally planned; and the improvement is not “completed” until the main channel of the ditch reaches the outlet, so as to carry, off the water.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed!

      Chas. A. Walls, for appellant.
    1. The alternative system of drainage districts as provided for in Crawford & Moses’ Digest, §§ 3607-3654, authorizes the district to extend its boundaries so as to include the lands lying in Arkansas and Prairie counties. Section 3614 was complied with in every respect, and that section, together with sections 3625, 3628, 3629 and 3630, Id., taken together, authorize the procedure contended for here. See also, with reference to the power of the circuit court to act, C. & M. Digest, § 3607, and act 353, Acts 1921, p. 390, amendatory thereof. The proceeding authorized by this statute, does not relate solely to original proceedings. A careful consideration of the act will show' conclusively that it was the intention of the Legislature to make such provision applicable at any stage in the proceedings. 11 Ark. 144. See also Acts 1913, p. 738; 103 Ark. 452; 85 Ark. 228; 89 Ark. 598; 117 Ark. 30; 121 Ark. 13; 145 Ark. 505; 130 Ark. 507; 142 Ark. 510; 115 Ark. 437; 86 Ark. 346; 147 Ark. 635.
    2. Circuit courts of the State are the repository for all unassigned jurisdiction; and where a procedure is authorized, and no court given special jurisdiction, circuit courts have jurisdiction in such matters. This being true, even if the special statute did not authorize it, the circuit court would have inherent jurisdiction, under the provisions of the 'Constitution, to act the same as though the authority was expressly conferred. Ill Ark. 144; 96 Ark. .410; 104 Ark. 425; 161 Ark. 334.

      Pettit & Leach and John L. Ingram, for appellee.
    Reading- sections 3607, 3613 and 3615, C. & M. Digest, in connection with 3614, it is clear that the latter section covers one of the preliminary steps in the formation of a district; that it has no application after final order confirming assessments has been made and entered; that it authorizes the assessment of only, such lands as might have been included in the original petition and order; that it authorizes the assessment of such benefits as accrue only by reason of the improvement as set forth in the original petition and order, and that it requires this assessment to be made and filed, together with the assessment of lands included in the original petition and order, before the final order confirming assessments of benefits is made. 103 Ark'. 452. Neither that section (3614) nor section 3628 has any application to this proceeding. If it be conceded that section 3625 is applicable to the facts in this case, it can not be invoked in this proceeding because it has in no respect been complied with. 154 Ark. 335.- But if this section had been fully complied with, it is not applicable to this proceeding. Its operation applies to lands lying only within the’ boundaries of the district. Under section 3629, relied on by appellant, if it was found necessary, the appellant could cut a ditch or drain across lands lying outside of the district, and could exercise the right of eminent domain to that end, but the cost of construction of such ditch or drain must be borne by the district,- and not by lands across which such ditch or drain is constructed. Section 3630, relied on by appellant, presupposes a -district fully formed, with its drainage system completed. Its object is to provide ways and means to preserve this completed system, and, to that end, it provides a procedure complete in itself. There is nothing in this statute having reference to lands other than the lands embraced in the district; nothing authorizing the extension of boundaries, and no language that could be so construed. The word “additional” in the phrase “levying of additional taxes,” necessarily implies the existence of something to which something (in this instance, taxes) may be added. 53 Miss. 626. None of the cases cited by appellant support the contention that the district, the county-court or the circuit court is authorized to extend the boundaries of the district in this proceeding. Two of the cases, 142 Ark. 510,' and 155 Ark. 176, discuss the authority to extend the boundaries of a district, but neither of them had under consideration this act, and they are therefore not in point.
   McCulloch, C. J.

The drainage district which is the appellant in this action is one formed in Lonoke County under the general statutes of the State providing for what is commonly termed the alternative system of drainage districts. Crawford & Moses’ Digest, §§ 3607 et seq. The organization included a large area in Lonoke County for drainage purposes, and provided for the construction of a main ditch or canal running in a south-, easterly direction and emptying into the stream called Bayou Meto near the southeastern boundary of the county. Bayou Meto was to be the outlet for the flow of water from the end of the canal. Numerous lateral ditches were also provided for in the plans. The district was formed of lands lying entirely within the county of Lonoke, and the proceedings were had in the county court of that county. Plans were formed and approved, and assessment of benefits was made, a contract for the improvement was let, and bonds were issued. The work in accordance with the plans progressed nearly to completion. The main canal, had been dug within a short distance of the southern termini, and all of the laterals were completed except two. It was then determined that, on account oí the circuitous course of Bayou Meto below the end of the main ditch, and the lands on each side of it being low and swampy, the bayou was insufficient as an outlet from that point, and that it was necessary to extend the main ditch or canal a distance of about four and a-half miles, to reach another point on Bayou Meto where the banks were high, and that this would shorten the outlet from about thirteen miles, through which the water would have to flow by going around through the bayou, to four and a-half miles at the point to which the extended main ditch or canal would empty the water into the bayou. Plans were then formed 'by the commissioners for the extension of the main canal as an outlet, and also for an extension of the boundaries of the district so as to include the additional lands which would necessarily be benefited by the extension of the main ditch. The report of the commissioners showing the altered plans and the assessment of benefits on the additional property to be added, which was about 8,000 acres in Prairie and 4,000 acres in Arkansas County, was filed with the circuit clerk of Lonoke County, and notice was given in accordance with the statute. After maturity of the notice, appellees, who are residents and owners of property in Prairie and Arkansas counties, appeared and filed their protest against the proceedings. On hearing the matter before the circuit court, it was decided that the court was without authority to make an order extending the bounds of the district and assessing the benefits to the lands in the other two counties. The court decided, however, that the district was entitled, under the statute, to condemn an outlet beyond the bounds of the districts as originally formed, and an appeal has been prosecuted in behalf of the district to this court.

The principal question to be decided in the case is whether or not there is authority in the statute for the change of plans and the extension of boundaries of the district so as to include other territory at the stage of the proceedings arrived at in the present instance. If the statute contains such authority, then the circuit court has jurisdiction to hear the proceedings, for the reason that it involves land lying in different counties, and the statute .provides that <n such case the proceedings shall be had in the circuit court. Section 3607, Crawford & Moses’ Digest, as amended by the act of March 23, 1921 (Acts 1921, p. 388), provides, in substance, that, if land in more than one county is embraced in a district, “the application shall be addressed to the circuit court in which the largest portion of the lands lie, and all proceedings shall be had in such circuit court.” The same statute provides that the circuit court shall apportion the costs between the counties in proportion to the benefits, that expenses incurred prior to the time when such assessment is made shall be apportioned between the counties, and that wherever in the statute the words ‘ ‘ county court ”or“ county clerk” are used, the words “circuit court” and “circuit clerk” shall apply in cases where the district contains lands in more than one county. This court, in the case of Grassy Slough Drainage Dist. v. National Box Co., 111 Ark. 144, decided that the language of this section was sufficient to give the circuit court jurisdiction in cases where the district embraced lands 'in more than one county.

We turn then to the question whether or not, regardless of county lines, there is any authority in the statute for the extension of the boundaries of a district under circumstances found to exist in the present case. There are several sections of the drainage statute which have some bearing on the question of authority to do the things undertaken in the present instance. One of the sections of the statute (Crawford & Moses’ Digest, § 3629) provides for the condemnation of a proper outlet for the drainage system, and that for that purpose a ditch or drain may be extended beyond the limits of the district; but that section may be put aside as having little bearing, for the reason that this is not merely a proceeding to secure an outlet. It is conceded by appellees that such an outlet may be obtained under the statute, and the circuit court so held, but it is sought in the present proceeding to extend the boundaries of the district so as to tax the land which will be benefited by the extension of the ditch. One of the sections of the statute provides that, on the assessment of benefits and damages after the formation of the plans, if it be found “that other lands not embraced within the bounds of the districts will be affected by the proposed improvement, they (the commissioners) shall assess the estimated benefits and damages to such land, and shall especially report to the county court the assessment which they have made on the lands ■beyond the boundaries of the district as already established.” Crawford & Moses’ Digest, § 3614. Other sections affecting the question involved read as follows:

‘ ‘ Section 3625. The commissioners may, at any time, alter the plans of the ditches and drains, but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications showing the dimensions of the work as changed, shall be filed with the county clerk, and notice of such filing shall be given by publication for one insertion in some newspaper issued and having a bona fide circulation in each of the counties in which there are lands belonging to the district. If, by reason of such change of plans, either the board of commissioners or any property owners deem that the assessment on any property has become inequitable, ' they may petition the county court, which shall thereupon refer the petition to the commissioners hereinbefore provided for, who shall reassess the property mentioned in petition, increasing the assessment if greater benefits will be received, and allowing damages if less benefits will be received or if damages will be sustained. In no event shall a reduction of assessments be made after the assessment of benefits has been confirmed, but any reduction in benefits shall be paid for as damages, and the claim for such damages shall be secondary and subordinate to the rights of the holders of bonds which have heretofore been issued. From the action of the commissioners in the matter the property owners shall have the same right of appeal that is herein provided for in the case of the original assessment.” Crawford & Moses’ Digest.

“Section 3628. In case any land in any drainage or other improvement district is benefited, which, for any reason, was not assessed in the original proceedings, or was not assessed to the extent of benefits received, or in case any corporation, individual or other drainage district organized under this or any other general or special act, outside the limits of any district organized or operating under the terms of this act, shall drain land into any ditch belonging to any district formed or operating under the terms of this act, the commissioners of said drainage district shall assess the benefits or the enhanced benefits received by such land, and the proceedings outlined in § 3613 for assessing benefits to lands not included within the boundaries of the district shall in all matters be conformed with; providing that this and the following section shall not operate to interfere with vested rights to natural drainage.”

“■Section 3630. The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district. To this end the commissioners may, from time to time, apply to the county court for the levying of additional taxes. Upon the filing of such petitions, notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the district embraces lands, and any property owner seeking to resist such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court.”

It is the contention of counsel for the district that these three sections last quoted clearly authorize the further proceedings sought to he undertaken, and we are of the opinion that counsel is correct in this cohtention. On the other hand, it is the contention of counsel for appellees that, in the first place, the statute does not authorize a change of plans and an extension of boundaries of the district after the approval of the original plans and the assessment and confirmation of benefits; and second, that, in the present instance, the improvement as originally planned and executed was substanially complete, and that the so-called additional improvement proposed by the changed plans is, in effect, a new and independent improvement. It is evident, from the broad and comprehensive language used by the lawmakers in framing this statute, and the numerous details set forth in the various sections, that it was intended to give every power necessary to complete drainage schemes. The statute clearly takes cognizance that a drainage scheme is ineffectual and incomplete unless the water is completely gathered up and an outlet provided for carrying it entirely away. In other words, the statute contemplates that a drainage ditch does not drain unless the water is taken care of and entirely carried away. So there is a clearly expressed purpose on the part of the lawmakers to authorize everything that is necessary to get the water off the land and into an outlet which will carry it somewhere into the open channel of a stream. Viewing the statute in that light, we think that the language of the sections referred to is sufficient to authorize a change of plans and an extension of the boundaries at any time before the completion of othe improvement as originally planned, and that if, at any time before that point is reached, it is found that the scheme will prove abortive unless there be an extension, and that other lands will be benefited by such extension, further proceedings may be had to that end. A study of the language of § 3625 convinces us that the additional proceedings-are not confined to a period anterior to the approval of the original plans and the letting of a contract. The language shows that it contemplates that a change may be made after the original assessment, for it provides for a reassessment in case it is found that the change of plans renders the original assessment inequitable or insufficient. Section 3628 also shows that it was intended to authorize a change after the original assessment, because it provides for the inclusion of land entirely omitted from the original assessment. If the statute authorizes the change of plans and extension of boundaries after the approval of the original plans and the assessment of benefits, then it follows that it may be done at any time before the improvement is completed, for there is no other period in the proceedings at which the authority may be limited.

Counsel for appellees are mistaken in their contention that this improvement was completed; on the contrary, the proof shows that the main channel of the ditch was not quite complete so as to .reach the proposed outlet, and that two of the lateral ditches had not been constructed. The scheme was not complete until the outlet was reached so as to fully discharge the water and provide for carrying it off. Nor was this extension of the ditch in any sense an independent improvement; it was merely an extension of the ditch according to the original plans, and constitutes an essential part of the improvement.

It is contended that this case falls within the decision of this court in the recent case of Indian Bayou Drainage Dist. v. Walt, 154 Ark. 335, but we do not agree that that case has any bearing on the present one. In that case the district had completed the improvement, and it was sought to change the plans so as to dig a parallel ditch, which constituted an independent improvement, and we held that the statute did not authorize that to be done. The proceedings there were sought under § 3670, Crawford & Moses’ Digest, and, in disposing of the matter, we said: “It is a new improvement, not in the nature of extending, widening, or deepening the ditches that had been constructed according to the plans originally contemplated in the formation of the district. Specific authority for making an improvement of this character must be found in the law, and it is impossible to find in the language of § 3630, supra, giving the words ‘extending, widening, or deepening,’ their plain and natural meaning, any authority for the construction of a new and independent improvement, such as is shown by the facts of this record.”

We have no occasion in the present case to deal with the question of assessment of benefits, or to determine from the facts whether or not there will be a benefit to the lands in Prairie and Arkansas counties which are to be included in the extended boundaries of the district. The circuit court did not decide those questions, and it is not proper for us to do so now.

The circuit court erred in holding that there was no authority in the statute for the proceedings set forth in the petition and accompanying papers.

The judgment is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Hart, J., not participating.