author: Woon, J.

text:
    Gibson Oil Company v. Bush.
    Opinion delivered January 9, 1928.
    1. Appeal and error — presumption in favor of verdict. — The Supreme Court will give evidence its strongest probative value in favor of the verdict and judgment.
    2. Explosives — burden of proof of negligence; — In an action for injuries and loss of stock of merchandise as- the result of an explosion, the burden was on the plaintiff to show that the seller was negligent in furnishing him a highly gaseous and combustible fluid, instead of kerosene which he ordered.
    3. Evidence — weight of testimony. — The weight of evidence and credibility of witnesses is solely within the jury’s province, and the jury may reconcile conflicts in the testimony of a witness, accepting that portion which they believe to be true and rejecting the remainder.
    4. Explosives — sufficiency of evidence of negligence.. — Evidence held to sustain a finding that the oil purchased by plaintiff from defendant was a highly gaseous and combustible fluid, and that it did not conform to the test required by law for kerosene.

      5. Negligence — claim of .contributory negligence for jury.— The issue of contributory negligence is for the jury where fair-minded men might differ in their conclusion as to whether the act of the person injured showed the want of exercise of ordinary care.
    6. Explosives — contributory negligence. — Whether plaintiff was guilty of contributory negligence in striking a match within 5 or 6 feet from a coal oil can to enable him to drain off coal oil for a customer, held for the jury.
    7. Evidence — best evidence. — Testimony of an employee of an oil company that he paid for a car of oil, and wrote a check to the State inspector for inspecting it, even if it were sufficient to prove that the oil was inspected, held not to show that the oil was of the grade and quality required by Crawford & Moses’ Dig., §§ 5900-5903, inclusive, as a condition to its sale as kerosene in an action for damages from an explosion.
    8. Explosives — effect of proof that fluid was inspected. — Where there was affirmative testimony in an action for damages from an explosion, that the fluid sold as coal oil was in fact highly combustible and not of the grade required by the statute, proof merely that the oil was inspected did not show that the oil was of the grade and quality required by the statute before the same could be sold.
    9. Explosives — negligence of seller. — Under uncontradicted testimony that a fluid sold for kerosene was highly combustible, and not of the grade and quality required by the statute, admission of testimony of a purchaser losing his stock of merchandise in a fire caused by explosion that the company’s employees on _ selling the oil failed to warn him against the use of matches near coal oil cans, held not error.
    10. Appeal and error — harmless error. — Defendant appealing from a judgment in plaintiff’s favor could not complain that the verdict was inconsistent, in that the jury did not award plaintiff damages for personal injury as well as for property loss, where plaintiff did not complain.
    Appeal from Franklin Circuit Court, Charleston District; George W. Dodd, Special Jurjge;
    affirmed.

      T. A. Pettigrew, Dave Partain and Hollmtd & Holland, for appellant.

      Warner, Hardin & Warner, for appellee.
   Woon, J.

Giving the evidence its strongest probative value in favor of the verdict and judgment, which we must do, the facts are correctly stated by counsel for appellee as follows:

J. W. Bush, plaintiff below, sued the Gibson Oil Company, appellant herein, in the Franklin County Circuit Court, to recover damages for the loss of a stock of merchandise and fixtures by fire on the evening of September 29, 1925, caused by an explosion of so-called coal-oil. The trial resulted in a verdict for the plaintiff for $3,000, the value of the property destroyed. Bush was engag-ed in the general mercantile business at Barling, in a building owned by J. W. Maddux. The Gibson Oil Company, with its principal office located at Fort Smith, was engaged in merchandising petroleum products at retail and at wholesale. Bush was a regular customer of the oil company, buying coal oil from it.

Barling is an inland village, ten miles from Fort Smith, on the Little Bock highway. Gibson delivers in its trade territory its products by means of trucks, and operates a number of them. A truck driver by the name of Ward traveled this particular territory. On Saturday afternoon, September 26, 1925, Bush telephoned to Gibson that he was out of coal oil and asked that a truck driver deliver a- barrel of oil to him that afternoon. At the time Ward was out on the road and not available, so Gibson detailed another truck driver, named Bell, to deliver the coal oil to Mr. Bush. Gibson’s storage tanks at the time were located just across the Arkansas Biver, at Moffett (sometimes called Alexander), Oklahoma. A man named Harvey Chaney was the employee in charge of the storage tanks, as well as a filling station which Gibson operated at Moffett at the time. It was the regular duty of Chaney or his helper to draw the coal-oil or gasoline from the storage tanks into the trucks. At the time Bell called for the coal oil in question, however, Chaney’s helper was absent, and Bell, preferring not to wait, Chaney being busy, drew the coal oil himself into a compartment of the truck operated by him. The trucks have three or four compartments for the convenience of hauling different commodities, coal-oil and gasoline, or gasoline of different qualities, without mixing them. Bell drew the coal-oil in question himself, drove his truck to Fort Smith, where he happened to meet Ward. Since it was a delivery to be made on Ward’s route and to Ward’s customer, the coal oil was transferred from Bell’s truck to Ward’s truck. The transfer was made by drawing the oil into five-gallon cans and then pouring into a compartment by hand in the other truck. Ward then delivered the coal oil, about 45 gallons, to Mr. Bush at Barling. This delivery was made by drawing the oil from his tank wagon into a five-gallon can and pouring the same into the barrel which was located in Bush’s store. He also, on the same trip, after delivering to Bush, delivered a quantity of the same coal oil to another customer named Henry Beard in Barling. All of this transaction took place on Saturday late in the afternoon.

On September 29, Tuesday evening, and shortly after dark, Balph Effert came to Bush’s store with an empty five-gallon coal-oil can, and called for coal oil. The coal-oil barrel was located on blocks about twelve or fifteen inches above the floor and toward the back end of the store. It was equipped with a faucet near the bottom of the barrel through which the coal oil was drawn. Bush placed the can under the faucet, and placed in the can and under the faucet a funnel, and began drawing the coal oil by permitting it to run through the faucet into the funnel and into the can in a small stream. The distance between the mouth of the faucet and the mouth of the coal oil can was just sufficient for the funnel. After starting the oil to drain in that manner, Bush stepped back toward the front of the building, behind the counter, and procured a match, and walked back to the coal-oil can. By the side of the coal-oil can were one or two cans of some kind, about eighteen inches in diameter; thereafter was another vessel of some kind, and next to that was a meat-box, making the meat-box five or six feet from the coal-oil can. Bush stopped beside the meat-box, which was about 18 inches from the floor, stooped over, and struck the match on the meat-box. Instantly, with the striking of the match, the explosion occurred, flashing flames of fire to the ceiling. It knocked Bush back across the store building a distance of 10 or 12 feet and over and against a stack of sacks of feed. In a moment the whole building was in flames. There were a number of men in the building at the time, but they were unable to save anything or do anything toward stopping the fire, with the result that the building, merchandise, and fixtures were all destroyed.

The complaint charges that the defendant negligently furnished a fluid containing gasoline or other combustible elements not properly in coal oil, and that the fluid furnished for coal oil did not meet the standard prescribed by law, and that it was negligence on the part of the defendant, when coal oil was ordered, to deliver this character of fluid, and that this negligence caused the loss.

After the fire Bush procured samples from customers who had bought oil from this barrel, and caused the same to be analyzed by Otto Y. Martin, a qualified chemist then operating a laboratory in Fort Smith, and found the flash test to be less than 60 degrees Fahrenheit, whereas the legal standard prescribed by the statute of Arkansas for coal oil fixes the flash test at 150' degrees Fahrenheit.

The case was submitted to the jury on the issues of the defendant’s negligence and the plaintiff’s contributory negligence, upon proper instructions of law by the trial court. The jury returned. the following verdict: “We, the jury, find for the plaintiff, and assess damages as follows: For loss of merchandise $3,000, with 6 per cent, interest from September 29, 1925. For personal injury, nothing. W. I. Wilson, foreman.” Judgment was entered for the plaintiff for the sum of $3,000, from which .judgment is this appeal.

1. The appellant contends that the evidence is not sufficient to prove that appellant was negligent as charged in the complaint, and also that the undisputed testimony proves the appellee’s injury and damage was caused by his own negligence. It is alleged in the complaint that the appellee bought of the appellant, at wholesale, kerosene oil, or what is commonly referred to by the trade as coal oil, for the purpose of selling same to his customers at retail, to be used in lamps for illuminating and other similar purposes; that such oil for such purposes is not highly combustible, but is perfectly safe for such uses; that the appellee, on the 26th of September, 1925, applied to the appellant to purchase kerosene, or coal oil, and that the appellant, instead of selling and delivering to the appellee the kind and quality of oil as requested by him, carelessly and negligently delivered to appellee, without appellee’s knowledge and consent, a highly gaseous and combustible fluid; that appellee, on the 29th of September, 1925, while waiting on a customer who wished to purchase kerosene or coal oil, drew from the barrel containing the substance so purchased from appellant a pail of oil; that, while exercising due care and caution for his own safety, a match was lighted at a perfectly safe distance from the oil, if the same had been coal oil or kerosene; that, when ■ the match was lighted, an explosion occurred and á conflagration resulted therefrom which destroyed appellee’s property to the value of $3,200 and caused an injury to appellee’s person to his damage in the sum of $10,000, for all of which appellee prayed judgment.

The appellant denied the allegations of negligence, and set up the affirmative defense of contributory negligence on the part of appellee.

Chapter 95 of Crawford & Moses’ Digest contains the law concerning the inspection of oils. The purpose of the law is to prevent, as far as possible, casualties of the character shown by this record, by requiring the owner, manufacturer, or wholesale dealer or jobber in any of the products of petroleum, by whatever name known, to be inspected according to the methods described in that chapter, and making it unlawful to sell any of the petroleum products mentioned in that chapter which, under the test therein prescribed, ignite or bum at any temperature less than 150 degrees Fahrenheit. See §§ 5900 to 5903, inclusive. On the issue of whether or not appellant was negligent, as raised by the pleadings, the pivotal question for decision is, did the appellant furnish the appellee a highly gaseous and combustible fluid, instead of kerosene or coal oil which had been properly tested as required by law? The burden was upon the appellee to prove the negligence as alleged in his complaint. Appellee, by his witness Chaney, endeavored to prove that the appellant was negligent in the manner of withdrawing kerosene and gasoline from appellant’s storage tanks into its tank wagons for delivery, by which the jury might infer that appellant delivered to the appellee gasoline, or kerosene mixed with gasoline, instead of kerosene or coal oil, which the appellee intended to purchase of the appellant at the time mentioned.

We deem it unnecessary to set forth in detail the testimony of witness Chaney on this issue. It suffices to say that the jury was justified in concluding from his testimony that the appellant was negligent on the occasion named in the manner of handling the gasoline and oil from its storage tanks to its delivery wagon, which made it possible for appellant to have delivered gasoline, or gasoline and kerosene mixed, instead of kerosene or coal oil, which the appellee intended to purchase. But learned counsel for the appellant argue, in effect, that the testimony of Chaney is so- conflicting and inconsistent in itself as to make it impossible to conclude from his testimony that gasoline could have been sold and delivered to the appellee instead of kerosene. In mailing this argument counsel have evidently overlooked the well-established rule of law that the weight of the evidence and the credibility of the witnesses is solely within the province of the jury. It was solely the province of the jury to reconcile any conflicts in the testimony of Chaney. They might accept any portion of his testimony which they believed to be true or reject any which they believed to be untrue, or about which the witness was mistaken. Certainly, under the above rule, it cannot be said that the testimony of Chaney did not warrant the jury in concluding that the appellant delivered to the appellee either gasoline or kerosene mixed with gasoline, instead of coal oil, as appellee alleged. But, even if the appellant was not negligent in the manner of handling gasoline and kerosene from its storage tanks to its delivery tanks, the ultimate fact still remains that, if the appellant actually sold and delivered to the appellee a highly gaseous and combustible fluid, instead of kerosene which had been tested as the law requires, and, if the explosion of such fluid was the proximate cause of the appellee’s injury and damage, then the appellant is liable.

The appellee testified that he took three samples of the oil which he purchased from the appellant, which were taken from the same barrel that the oil was being drawn from when it exploded, and had the same analyzed by Otto V. Martin. Otto V. Martin testified, and qualified as an expert in making tests of gasoline and kerosene. He made the tests of the oil brought to him by the appellee and by others for him. The oil thus tested by him flashed at less than 60 degrees Fahrenheit. Witness thought that the flash test for coal oil was 150 degrees F. and the burning point 114 degrees F. If coal oil is poured out on the floor and a match struck near it, it will not explode at normal temperature. If a match is thrown in a bucket of oil, the match will be put out. The flash test of 60 degrees is not below the flash test of gasoline. That is below zero.

Miss Fay Prescott testified that a can of oil was purchased from the appellee about twenty or thirty minutes before his store burned. She started to build a fire with it, as had been her habit, and it flashed up all at once in a great big flash; she did not put more oil in on this occasion than she did before, but it had not'been blazing up that way. Mose Christian testified that he bought some of this coal oil, and was trying to make a fire in the cookstove in the same way he had been in the habit of using coal oil before. He struck a match to it, and, before he got the match down to the wood, it flamed up, the flames coming up out of the stove and blowing one of the caps off the stove and bursting it. Two other witnesses besides the appellee testified that, when a match was struck by the appellee, there was a sudden flash and explosion which knocked appellee back several feet.

We have set out only the above excerpts from the testimony of these witnesses, but it is sufficient to justify the jury in finding that the oil purchased by the appellee from the appellant was a highly gaseous and combustible fluid, and that it did not conform to the test required by law for kerosene or coal oil. Such being the case, the appellant was negligent in selling such oil.

The next question is, whether or not the explosion resulting in the injury and damage to the appellee was caused or contributed to by the negligence of the appellee himself.

The appellee was enguged in the business of operating’ a store where there were no electric lights; he was in the habit of drawing coal oil from barrels into cans or containers for his customers after dark, and striking matches around such coal oil. This was the first explosion and conflagration that had ever occurred. The oil, on the occasion in question, was being drawn from the barrel as usual, the container being placed under the faucet of the barrel containing the oil, there being a space of three or four inches between the top of the can and the mouth of the faucet, and the oil being run from the faucet into the can through a funnel. The can to be filled with oil for the customer was a five-gallon can. After so placing the can and thus starting the oil to running from same into the can, the appellee went into the front part of his store to get a match, and immediately returned and struck the match on a meat-box, when the big flash and explosion occurred, which burned appellee on his hands and face and pushed him back- about ten or fifteen feet.

The above testimony of the appellee himself as to the manner of the explosion was' corroborated by the testimony of two witnesses who were in the store of appellee at the time and witnessed the occurrence. The testimony of Martin, the expert witness who testified on behalf of the appellee, was to the effect that if there was no artificial heat in the month of September inside of doors, coal oil or kerosene of the legal test being drawn in the manner above set forth would not ignite; that, if the oil ignited or exploded and caused a fire under the circumstances, “it would not be good coal oil — it would contain some volatile substance not found in legal kerosene. ’ ’

Dr. Sydney Born, who was an expert concerning the explosive qualities of kerosene and gasoline, testified for the appellant, and he stated, on cross-examination, that, if there be an explosion, there are some explosive elements in the air. Coal oil that would not burn under 140 degrees, in witness ’ opinion, would not have exploded. If the oil exploded i't contained explosive elements not in coal oil; it would not 'be dangerous ordinarily to strike a match within a foot of a can of coal oil. Witness did not think a can of coal oil would explode if a match were struck within six inches of it; if you spread out coal oil on a thin table it will burn; where there is no heat and no vapor arising, coal oil in a container meeting a test of 140 degrees does not vaporize, but it would if spread out.

It occurs to us that all reasonable minds would not necessarily come to the conclusion that the appellee was negligent in striking a match under the circumstances indicated; on the contrary, fair-minded men might very well differ in their conclusion as to whether striking a match under the existing conditions was an act of negligence. Such being the case, the issue of contributory negligence was one for the jury. See Coca Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856. On the issues of both negligence and contributory negligence, the doctrine announced in Pierce Oil Corporation v. Taylor, 147 Ark. 100, 227 S. W. 420, and Goode v. Pierce Oil Corporation, 171 Ark. 864, 286 S. W. 1009, is applicable likewise to the facts of this record.

In Ashcraft v. Jerome Hardwood Lbr. Co., 173 Ark. 135, 292 S. W. 386, we said: “The court is never justified in directing a verdict except in cases where, conceding the credibility of witnesses, and giving full effect to every legitimate inference that may be deduced from their testimony, it is plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.”

See also Mo. Pac. Ry. Co. v. Berry, 172 Ark. 729-738, 290 S. W. 942. The court therefore did not err in submitting the issues of negligence and contributory negligence to the jury.

2. The appellee was asked, while on the witness stand, by counsel for the appellee the following question: “Did any of the employees of the Gibson Oil Company instruct you that they were selling you something that was dangerous to use sulphur matches around? ” To the above question counsel for the appellant interposed the following objection: “We object, because there was no duty on the employees of defendant to instruct plaintiff, and there is no allegation of negligence for failure to instruct.” The court overruled the objection, and the witness answered the question in the negative. Appellant duly excepted to the ruling of the court in permitting witness to answer.

A witness for the appellant, over the objection of the appellee, testified that he was in the employ of the Gibson Oil Company; that the Gibson Oil Company received a carload of oil purchased by it from the Transcontinental Oil Company during the month of August. This car of oil was identified as the oar from which the oil that caused the explosion was taken. Witness stated that he paid for the car with a check, and wrote a check to the State Inspector for inspecting it. These checks were written on the Gibson Oil Company. The witness exhibited a bill of lading for the carload of oil. The witness did not make out the bill of lading and knew nothing about it, except what it showed on its face. The witness did not testify that he saw the State Inspector make the inspection.

The above testimony was only in the nature of secondary evidence to the fact that the oil was inspected. The primary and best evidence of the fact, if it were a fact, that the oil was inspected, would have been the testimony of the inspector who actually made the inspection. No proper foundation was laid for the introduction of the above testimony. It was not shown that the testimony of the inspecting officer could not be obtained. Therefore the court erred in permitting the above testimony. But, even if we are mistaken, and if such testimony were sufficient to prove that the oil was inspected, it is not sufficient to show that the oil was of the grade and quality required by the statute before the same could be sold. There is therefore no competent testimony in the record that the oil which exploded was oil that had been tested and found to be of the standard required by law. The affirmative testimony in the record was to the effect that the oil did not conform to the test required by law and that it was a highly gaseous and combustible fluid. Therefore, in the absence of proof to the contrary, appellant must be held to have known that it was selling to the appellee, instead of kerosene, gasoline, or some other highly explosive and dangerous fluid. Appellant also must be held to have known that the appellee did not know that the oil he was purchasing from the appellant was gasoline, and not kerosene. It was the duty of the appellant, under these circumstances, to inform the appellee that he was really purchasing gasoline or some other highly explosive and combustible fluid bef ore thus subjecting him to the dangers incident to the handling of such commodity. The plain dictates of humanity and due consideration for the rights of others in the interest of life and property demanded no less of appellant. The appellant’s cause of action, under the allegations, and' proof in the case, clearly sounded in tort, and we are convinced that the court did not err in allowing the question to be propounded to the appellee and in allowing him to answer the same. It tended to elicit testimony relevant to the issue of negligence and also to the issue of contributory neglig'ence. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159, at page 179, 29 S. Ct. 270, 53 L. ed. 453, and eases there cited. See also, 25 C. J. 189.

3. The contention of the appellee that the verdict is inconsistent because the jury did not find damages also for appellee’s personal injury, is -without merit. The appellee is not complaining on this account, and certainly the appellant is not in an attitude to complain. As we said in Mo. Pac. Ry. Co. v. King, 167 Ark. 335, 268 S. W. 595, “The fact that the verdict is for a less amount than the evidence warranted, and may appear to be inconsistent on that account, does not call for a reversal, for the appellees are not complaining.”

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


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    White River Lumber Company v. State.
    Opinion delivered January 9, 1928.
    1. Constitutional law — back tax statute. — Crawford & Moses’ Dig., § 10204 et seq., authorizing suits by the State to recover back taxes from corporations on the ground of inadequate or insufficient valuation or assessment of corporate property, does not violate the State Constitution or the Constitution of the United States, Amendment 14, as denying such corporations the equal protection of the law or depriving them of property without due process.
    2. Taxation — basis op reassessment op property. — Under §• 5, art. 16, of the Constitution, reassessment of corporate property for back taxes should be made on the same basis as the original inadequate assessment.
    3. Taxation — evidence op undervaluation op property. — It will be presumed that the original assessments of property were fairly made, and they will not be set aside on account of mere error in judgment without clear and satisfactory proof.
    4. Taxation — discrimination in assessment. — Mere errors of judgment in the assessment of other property do not support a claim of discrimination entitling a taxpayer to a reduction of the assessment below the uniform basis on which the assessment is made, but there must be something which in effect amounts to an intentional violation of the essential principle of practical uniformity.
    5. Taxation — undervaluation of land — evidence.—In a State’s suit under Crawford & Moses’ Dig., § 10204, for back taxes on timber lands of a foreign corporation, evidence held too indefinite and uncertain to justify a holding that lands excepting those on a certain island were undervalued by the officers making the original assessments.
    6. Taxation — basis of assessment. — The assessment of a foreign corporation’s timber land on the same percentage of market value as other lands, held not an undervaluation which may be corrected by a back assessment, because the State Tax Commission had fixed a greater percentage valuation for assessment, since such a rule would offend against the uniformity clause of the State Constitution and the equal protection clause of the Fourteenth Amendment.
    7. Taxation — personal judgment for back taxes. — Crawford & Moses’ Dig., §§ 10209, 10210, held not to entitle the State to personal judgment against a corporation enforceable against its general assets in a suit for back taxes on lands undervalued, but merely to authorize the court to find the amount due, declare same a lien on the lands, and order each tract sold for back taxes unless paid within three months after the decree.
    Appeal from Arkansas Chancery Court, Southern District; H. R. Lucas, Chancellor;
    decree modified.

      Buzbee, Pugh & Harrison, for appellant.

      H. W. Applegate, Attorney General, R. E. L. Johnson and John M. Rose, for appellee.

      C. G. Gras sham, Lee ■& Moore and Cockrill <& Armistead, for appellant.
   Smith, J.

This suit was filed by the State of Arkansas, on the relation of the Attorney General, on July 25, 1925, against the White River Lumber Company, a foreign corporation, hereinafter referred to as the company, to recover, on behalf of the State and its political subdivisions, certain back taxes alleged to be due by the company. The suit was brought to recover back taxes alleged to be due upon the intangible value of the company’s capital stock, but interrogatories propounded to the company developed the fact that it owned no property in this State except its real estate, and about that time the opinion of this court was delivered in the case of State ex rel. Attorney General v. Lion Oil & Refining Co., 171 Ark. 209, 284 S. W. 33, in which it was held that the capital stock of a foreign corporation which is neither located nor used within the boundaries of the State could not be assessed for taxation in this State. An amended complaint, was filed, in which it was alleged that the company owned large tracts of timbered lands in the counties of Desha, Phillips, Monroe and Arkansas, which had been grossly under-assessed for purposes of taxation for the years 1915 to 1925, inclusive.

The amended complaint contained a list of the company’s lands on which it was alleged that taxes had been paid at under-valuations. This list contains 191 descriptions, located in 105 different sections in the four counties named.

It was stipulated that the State Tax Commission had ordered an assessment of all property in the State at 50 per cent, of the market value, but the court found the fact to be that this direction had not been obeyed by the assessing officers, and that property in the counties mentioned had been assessed at only 30 per cent, of its value. Witnesses who testified on this feature of the case differed widely as to what per cent, of the value had been assessed, some placing it higher and others lower than the .30 per cent, found by the court. Without reviewing this testimony, we announce our conclusion to be that the finding of the court below on this question does not appear to be against the preponderance of the evidence.

A large amount of testimony was taken, and we have before us a voluminous record. The testimony on the part of the State was directed principally to a showing of the amount and value of the timber on the lands, which fixed the value thereof.

The testimony on the part of the company was to the effect that all timbered lands in the counties mentioned had been assessed at from $4'to $5 per acre, and that those of the company were of about the same average value as the lands of other owners, and that it would be discriminatory to assess the lands of the company at a higher valuation for purposes of taxation. It was also shown that, during the years for which the State asks back assessments, large quantities of the timber had been stolen, and .that in recent years large quantities had been sold, and that the value of the lands was proportionately reduced.

The court, in fixing the value of the lands, divided them into five groups, those in Desha, Phillips and Monroe counties comprising three of the groups. The fourth group was composed of all the lands in Arkansas County, except the lands referred to as “Big Island,” which last mentioned body of lands composed the fifth group. The court found the value of the Big Island lands for the years 1915 to 1925, inclusive, to be $50 per acre, and the value of all the other groups to be $33.33 for each of these years, and directed that they be back-assessed for all those years at 30 per cent, of the value stated, less credits for the timber stolen and sold. No attempt was made to.show from what tracts of land timber had been sold or stolen, and the court directed that the total amount of these two items be apportioned to the entire acreage, and the valuations were credited with these apportioned amounts. The valuations thus fixed by the court were further reduced by the valuations upon which taxes had been paid.

As a result of this finding and decree, taxes were charged against the entire body of land in the sum of $79,033.63, and it was ordered that the lien for the taxes which the court decreed be enforced against each separate tract. From this decree the company has appealed, and the State has cross-appealed, and it is now insisted on behalf of the State that the lien for the taxes should be enforced against the lands as a body or as a personal .judgment against the company.

Before further reciting or discussing the testimony, we proceed to consider the legal principles which must be taken into account and be followed in passing upon the issues of fact.

The State is proceeding under the provisions of the back tax law, which appear as §§ 10204 et seq., C. & M. Digest. ‘Section 10204 was enacted at the 1913 session of the General Assembly (Acts 1913, page 724) as act 169, the title of the act being: “An act to amend § 1 of act No. 354 of the Acts of 1911, approved May 30, 1911.”

This act of 1913 was passed shortly after the opinion of this court was delivered in the case of State ex rel. Attorney General v. Kansas City & M. Ry. & Bridge Co., 106 Ark. 248, 153 S. W. 614, and was, no doubt, intended to remedy certain supposed defects in the then existing back tax law. In that case the suit was for: back taxes alleged to be due upon the bridge owned by the defendant corporation, which the complaint alleged had been assessed for taxation at only about one-sixth of its true value. A' demurrer to this complaint was sustained, and the State appealed; Upon the appeal to this court it was held that, where a corporation has paid the taxes on the annual assessments made on its property, the State could not recover additional taxes, where a mere mistake had been made in assessing the property too low, and that a review of the assessments by the courts would be permitted only when the assessing boards or officers had proceeded on the wrong basis of valuation, in omitting some property or element of value or in adopting the wrong basis in estimating value, and it was further held that the policy of the law was to treat the find-’ ing of the assessors, supervising boards and commissions as final, except when otherwise expressly provided by the statute.

This opinion was delivered January 20,1913, and the act of 1913, which appears as § 10204, O. & M. Digest, was approved March 12, 1913. By this amendatory act it was provided that, “Where the Attorney General is satisfied * * * that, 'in consequence of the failure, from any cause, to assess and levy taxes, or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money of any property hereinafter mentioned, or because of any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof, or from any other cause, there are overdue and unpaid taxes owing to the State or -any county or municipal corporation, or road district, or school district, by any corporation, upon any property now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid, that it shall become his duty to at once institute a suit or suits in chancery in the name of the State of Arkansas, for the collection of the same, in any county in which the corporation owing such taxes may be found * * * ,”

After the passage of the act of 1913, from which we have just quoted, a second suit was brought against the same bridge company to recover the taxes sued for in the first case. It was alleged in the second suit that the corporation owning the bridge had for a number of years paid taxes on the bridge “upon an inadequate and insufficient valuation and upon an undervaluation thereof,” and that a larg-e amount of taxes would be due by the corporation upon a proper assessment of its property. A general demurrer to this complaint was sustained, and the complaint was dismissed, from which order and decree an appeal was duly prosecuted to this court. The opinion upon the appeal, which was delivered by L. H. McG-ill, Esq., as -special Justice, reviewed the back tax legislation of the State, and interpreted the amendatory act of 1913, and it will now suffice to restate the conclusions there announced without again reviewing this legislation. State ex rel. v. K. C. & M. Ry. & B. Co., 117 Ark. 606, 174 S. W 248.

The act was held to be retroactive in its effect, and the right of the State to enact such a statute was declared. It was held that the purpose of the statute, as amended by the act of 1913, was to give the State a complete remedy for the recovery of back taxes due by a corporation upon any property in the State which belonged to any corporation at the time such taxes should properly have been assessed and paid, and that a proper exercise of this power was not in violation of the Federal Constitution as denying corporations the equal protection of the law or depriving them of property without dne process of law.

It was further held that the fact that no statutory remedy existed for the correction of erroneous assessments at the time they were made did not preclude the Legislature from granting a remedy at a subsequent time, and that the owner of property which, for any reason, escaped payment of a part of its just share of taxation, does not have a vested right to immunity from payment of the balance dne. It was there also held that the fact that the statute authorized suits for back taxes against corporations only did not cause it to offend against either the State or the Federal Constitution.

After thus announcing the law, the decree of the chancery court sustaining the demurrer to the complaint of the State was reversed and the cause .remanded for further proceedings in accordance with the opinion, which meant, of course, to hear testimony to determine whether there had been “any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof.” That cause was not again appealed to this court.

The case of State ex rel. Attorney General v. Fort Smith Limber Co., 131 Ark. 40, 198 S. W. 702, was a suit against a"domestic corporation to recover taxes on property which the State alleged had escaped adequate assessment for previous years. A second opinion was rendered in the same case, which is found reported in 138 Ark. 581, 211 S. W. 662. From this last opinion, which was adverse to the corporation, an appeal was prosecuted to the Supreme Court of the United States, and the opinion of that court on the appeal is reported in 251 U. S. 532, 40 S. Ct. 304, 64 L. ed. 396.

That was a suit by the State against a domestic corporation to recover back taxes alleged to be due upon a proper valuation of the capital stock of the -corporation. The corporation owned stock in two other corporations of the State, each of which had paid full taxes, and it was contended that the corporation sued was entitled to omit the value of such stock from the valuation of its own. The corporation defended upon the ground that individuals are not taxed for such stock or subject to suit for back taxes thereon.

In upholding the right of the State to sue for these back taxes, it was stated 'by Mr. Justice Holmes, speaking for the court, that it was within the power of the State, so far as the Constitution of the United States is concerned, to tax its own corporations in respect of the stock held by them in other domestic corporations, although unincorporated stockholders are exempt from such tax, and that a discrimination between corporations and individuals in regard to such a tax could not be pronounced arbitrary, although the precise ground of policy which led to the distinction did not appear.

It was there further said: “The same is true with regard to confining the recovery of back taxes to those due from corporations. It is to be presumed, until the contrary appears, that there were reasons for more strenuous efforts to collect admitted dues from corporations than in other cases, and we cannot pronounce it an unlawful policy on the part of the State. See New York State v. Barker, 179 U. S. 279, 283, 21 S. Ct. 121, 45 L. ed. 190.”

Other decisions by the Supreme Court of the United States have upheld the validity of back tax statutes passed by the States which apply only to corporations, upon the ground that the State Legislatures, in passing such statutes, may have ascertained, as a practical matter, that, if such statutes were made applicable to individuals, the expense of enforcement would be so great that the law would be without profit to the State. Winona, etc., Land Co. v. Minnesota, 159 U. S. 526, 16 S. Ct. 83, 40 L. ed. 247; Weyerkmeser v. Minnesota, 176 U. S. 550, 20 S. Ct. 485. 44 L. ed. 583: Florida, C. & P. R. R. Co. v. Reynolds. 183 U. S. 471, 22 S. Ct. 176, 46 L. ed. 283.

We may say therefore that the statute under which the State has here proceeded does not violate the Constitution of this State or the Constitution of the United States, and that the State may maintain a suit to recover back taxes under a statute which applies only to corporations, the demand for the additional taxes being predicated upon the proposition that there had been an inadequate or insufficient valuation or assessment of the corporate property.

But, while such a suit may be maintained, upon what basis shall such valuation be assessed? The answer to this question is that, under § 5 of article 16 of the Constitution of the State, the reassessment should be on the same basis as that upon which the original and inadequate assessment should have been made.

The section of the Constitution referred to provides that: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value. # # _

This constitutional mandate has been many times considered by this court, and several of these cases were reviewed in the case of State ex rel. Nelson v. Meek, 127 Ark. 349, 192 S. W. 202, L. R. A. 1918F 642. That was a suit on the relation of a judgment creditor of one of the counties of the State, who sought to compel the assessor of the county to assess the property of the county at its full market value in order that funds might be provided to pay the judgment against the county, but, in holding against that contention, the court quoted from an earlier case as follows: ■

“In Bank of Jonesboro v. Hampton, 92 Ark. 492, 123 S. W. 753, we said: ‘It is true the Constitution provides that all property subject to taxation shall be taxed according to its value, but this is done when the valuation is equalized with other property of the same kind in the county. ’ ’ ’

The ease of Hays v. Missouri Pacific R. R. Co., 159 Ark. 101, 250 S. W. 879, involved the constitutionality of a local act requiring an assessment in certain school districts of all property therein at 75 per cent, of its true market value, this being in excess of the per cent, of market value at which other property was assessed for taxation .in other parts of the State. In holding the act unconstitutional, it was said:

“The object of this provision of the Constitution (the one quoted above) is to secure equality and uniformity in the imposition of the public burdens. The tax must be laid according to some rule of apportionment which is not arbitrary, but is such that the burden may be made to fall with something like impartiality upon the property sought to be taxed. The settled construction placed upon constitutional provisions similar to the one in question is that uniform taxation requires uniformity not only in the rate of taxation but in the mode of assessment upon the taxable valuation.” See also Drew County Timber Co. v. Board of Equalization, 124 Ark. 569, 187 S. W. 942; Doniphan Lbr. Co. v. Cleburne County, 138 Ark. 449, 212 S. W. 308.

This being the rule applicable to original assessments, it must, of necessity, apply to back assessments, for the theory upon which the right to make back assessment is based is that the property sought to be assessed has escaped the payment of its just share of taxes. If our back tax statute were construed as conferring any greater right, it would offend against the section of the State Constitution quoted and the equal protection clause of the Federal Constitution. See cases cited above.

It was expressly held in the case of State ex rel. v. Kansas City & M. Ry. Bridge Co., supra, that “the statute does not contemplate that any property will be made to bear any greater burden of taxation than it would have borne if it had been originally assessed at its proper value.”

We must also take into account the kind of testimony, or the sufficiency thereof, which will justify the courts in holding that property was undervalued by the assessing officers who were clothed by the law with the authority to make the original assessments. Upon this question it was said in the case of State ex rel. v. Kansas City & M. Ry. & Bridge Co., supra, that:

“It must he presumed that the courts will give persuasive force to all original assessments • fairly made, and will not set them aside on account of mere error in judgment, without clear and satisfactory proof. This is demanded by sound policy and the natural justice of the case. ’ ’

Another principle to be taken into account is that “mere errors of .judgment in the assessment of other property do not support a claim of discrimination, entitling the taxpayer to a reduction of his assessment below the actual value of his property (or the uniform basis upon which the assessment is made), but there must be something more — something which, in effect, amounts to an intentional violation of the essential principle of practical uniformity.” Sioux City Bridge Co. v. Dakota County, 260 U. S. 441, 43 S. Ct. 190, 67 L. ed. 340, 28 A. L. R. 979.

It appears that, prior to the passage of act 234 of the Acts of 1917, as amended by act 147 of the Acts of 1919’ (an act entitled “An act to provide for the assessment and valuation of the taxable property of the State of Arkansas, and for other purposes”), the assessments were made by the county assessors, subject to review by the county equalization boards. Subsequent to the passage of the above act the assessments in question were made by the township boards, composed of the county assessor, and two reputable and intelligent citizens and taxpayers of each township, subject to appeal to the county court by an aggrieved taxpayer, but not by the State.

The assessors in office during the time the assessments in question were made testified' on behalf of the company, and their testimony was to the effect that they had intended to assess upon a uniform basis, and had made no intentional discriminations for or against any one. " ■ ; ■! ■ ¡ í

There was testimony on behalf of the State that all the lands of the company were more valuable than those of other owners whose lands were also assessed at from $4 to $5 per acre.

We think, however, that the testimony, except as to the Big Island group, was too indefinite and uncertain to measure up to the requirement announced in the case of State ex rel. v. Kansas City & M. Ry. & Bridge Co., supra, quoted above. The principal witness for the State (one Dennison) candidly admitted that he had only a very general knowledge of the company’s lands, except in Arkansas County, and more especially of the Big Island group.

We are of the opinion that the testimony does not show as to any of the lands, except the Big Island group, “any inadequate or insufficient valuation or assessment of such property, or undervaluation thereof,” within the meaning of the rules of law by which that fact is to be determined.

• As to the Big Island group, consisting of 7,964 acres, the testimony is much more definite and certain. This is shown to be a body of land so unusually well timbered as to have a value not possessed by the other timbered lands which were assessed at from $4 to $5 per acre. The assessing officers were in ignorance of the quality and quantity of timber which gave this land its greater value. As to this group of lands there was an ignorance of the facts. The testimony is conflicting as to its value, but we think it was clearly shown that these lands were of an average value, during the entire time covered by the assessments in question, of $40 per acre, taking into account the timber stolen and the timber sold.

As it appears that all other property was assessed at an average of 30 per cent, of its market value, these lands should also be assessed at that per cent.,, and as 30 per cent, of $40 is $12, that figure represents the valuation at which the Big Island group should be assessed, less, of course, the valuation on which the taxes have been paid.

It is earnestly argued on behalf of the State that the valuations for purposes of taxation should be assessed at 501 per cent, of the market value, as this was the basis fixed by the State Tax Commission, and that any assessment based on a lower per cent, of the market value is an undervaluation within the meaning of the statute under which this suit was brought. We think, however, that it must appear, from what we have already said, that, if the statute is so construed as to permit this to be done, it would offend against both the uniform clause of the Constitution of the State, quoted above, and the equal protection clause of the Federal Constitution.

The argument that • any assessment at a less per cent, of the market value than that fixed by the State Tax Commission is an underassessment, which may be corrected by a back assessment, is so thoroughly answered by the opinion of the Court of Appeals of the Sixth Circuit in the case of Taylor v. Louisville & N. R. Co. (C. C. A.), 88 Fed. 350, that we quote extensively from it. The opinion was delivered by Judge Taft, then a member of that court and now the Chief Justice of the Supreme Court of the United States. The opinion contains ■ an exhaustive review of the decisions of the United States Supreme Court, and is one which has been cited and approved by many courts. That case is of special value here, as it arose under the taxing laws of the State of Tennessee, and the provision of the Constitution of that State (article 2, § 28, Constitution 1870), is so nearly identical with our own on the same subject as to suggest the idea that our provision was taken from the Constitution of that'State.

Under the statutes of that State railroads and certain other property were assessed biennially by a board consisting of three members, known as the “State Tax Assessors,” whose assessment was subject to review by another board, called the “Board of Equalization,” composed of the Governor, Secretary of State and State Treasurer. This State board assessed the property of the plaintiff railroad and all other property which it was required to assess at its real value, whereas it was shown that all other property not assessed by the State Board of Assessors was habitually and ¡intentionally assessed by other assessing officers at not exceeding 75 per cent, of its real or correct value.

The opinion contains a review of many cases, and quoted extensively from the opinion of this court in the case of Ex parte Ft. Smith & Van Buren Bridge Co., 62 Ark. 461, 36 S. W. 1060. We copy that portion of the opinion, as it is directly in point:

“In Ex parte Ft. Smith & Van Buren Bridge Co., 62 Ark. 461, 36 S. W. 1060, the case arose on an appeal from the refusal of the county board of equalization to reduce the taxation of assessment upon the petitioner’s bridge. The assessor had assessed one-half of the bridge in Crawford County at $150,000, and the county board of equalization had reduced this assessment to $125,000. At the trial in the circuit court it appeared that $250,000 was a fair market price for the entire bridge, and that $125,000, therefore, was the full value of one-half of the bridge. It further appeared that all the real estate in Crawford County was assessed at 50 per cent, of its actual value. The appellate court contended that, under the circumstances, the assessment of one-half the bridge should be reduced accordingly to its request of $75,000. The Constitution of the State was exactly in the words of the Tennessee Constitution, to-wit:
“ ‘That all property subject to taxation shall be taxed according to its value, to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State; and provided, further, that no one species' of property, upon which taxes shall be levied, shall be taxed higher than another species of property of equal value.’
“The law passed in pursuance of this section of the Constitution required the assessors of the counties-in the State to assess the real estate at its true market value in money. The court, in construing this question, said:
“ ‘It may Be said that, inasmuch as its property was •not assessed above its true value, it had no right to complain. But this is not true. It had the right to demand that no unequal burden be imposed upon it by taxation. The duty to contribute to the support of the State G-ovp.mmerit by the payment of taxes is imposed upon all persons owning property subject to taxation. The Constitution provides that this burden shall be apportioned among them according to the value of their property, to be ascertained as directed by law. When therefore the property of a few is taxed according to its value, and of all others at one-half its value, then the few are required to contribute double' their portion of the burden. This is manifestly a wrong, and justice demands that it be redressed whenever it can be done conformably to the laws. * * * In this case the county court acquired jurisdiction, by the appeal of the bridge company, to grant relief from the illegal, erroneous, or unequal assessment of appellant’s property, but did not acquire the right or authority to make the valuation of all real property in the county for the purposes of taxation, in all cases in which it had not been done, the true value, by raising it, or to change the valuation of any property except the bridge. The assessment of no property can be increased without notice first given to the owner by the board of equalization. How, then, was the county court to afford relief to appellant? The only relief it could have afforded was to reduce the valuation so as to make it conform to the standard adopted in the valuation of the ■ other real property in the county, or the average valuation of such property. Why should not this relief be granted? The valuation of property is only a constitutional means adopted for the purpose of making the burdens of government bear upon each taxpayer in proportion'to the value of his property. The relief suggested accomplishes that end in this case. By granting it a constitutional right will be enforced, and by denying it will be withheld, because the means devised for its enforcement were not adopted. By pursuing the latter course, the Constitution will be made the means of defeating itself, by the imposition of unequal burdens. To avoid this result, the relief should be granted.’ ”

The learned Justice also quoted from the case of Cummings v. Bank, 101 U. S. 153, 25 L. ed. 903, as follows:

. “ ‘But, whatever may be its cause, when it is recognized as the source of manifest injustice to a large class of property, around which the Constitution of the State has thrown the protection of uniformity of taxation'and equality of burden, the rule must be held void, and the injustice produced under it must be remedied, so far as the judicial power can give remedy.’ ”

The decision of the court, so far as it is applicable here, is reflected by the 9th syllabus, which reads as follows:

“Under the Tennessee Constitution of 1870 (article 2, § 28), declaring that all property shall be taxed ‘according to its value,’ to be ascertained as the Legislature shall direct, ‘so that taxes shall be equal and uniform throughout the State,’ when it is the uniform practice in the various counties of the State to assess real property at not exceeding 75 per cent, of its true value, an assessment upon railroad property at its full value violates the uniformity of taxation, which is the main purpose of the constitutional provision, and will be enjoined, although this involves a violation of the letter of the State statutes passed pursuant to the Constitution, which requires.all property to be assessed at its full value.”

The petition of the State of Tennessee for a writ of certiorari to review this decision was denied by the Supreme Court of the United States on the authority of Chicago & M. W. Ry. Co. v. Osborne, 146 U. S. 354, 13 S. Ct. 281, 36 L. ed. 1002; Forsyth v. Hammond, 166 U. S. 506, 17 S. Ct. 665, 41 L. ed. 1095. See 172 U. S. 647.

The basis of assessment which was actually employed in the case of all other property owners must therefore be applied here, although it does not conform to the directions of the State Tax Commission. This must be done to preserve uniformity.

What we have said probably makes it unnecessary to consider whether the State was entitled to a personal judgment against the corporation, to be enforced against its general assets to pay the tax on these lands. That it should be thought necessary to make such a contention argues strongly against the merit of the State’s case, for all the taxes assessed against the company’s land have been paid, and this suit was brought only to collect additional taxes which it is contended should be paid on all the lands. But, as the question has been raised and is insisted upon, we decide it.

In the case of Worthen v. Quinn, 52 Ark. 82, 12 S. W. 156, the syllabus reads as follows:

“Where goods are sold by the person in whose name they are assessed for taxation, after the lien of the State for taxes attaches thereto, and his vendee sells them, the collector, if he cannot realize the taxes otherwise, may maintain a suit in equity against the vendee to charge the proceeds of such sale with the payment of the taxes. ’ ’

That case, however, involved the taxes on personal property (a stock of goods) which, by a sale, had been placed beyond the power of the tax collecting officers to seize and sell.

There is involved here only the taxes on lands, which are always in place, and may be sold when the law requires.

In the case of Van DeGriff v. Haynie, 28 Ark. 270, it was said:

“Unless the power is specifically delegated or expressed, no right of action exists for taxes, and they cannot be turned into .judgments. Both the State and municipal corporations have a much better and more expeditious remedy. They have the right, by summary process, to enforce collection, by levy and sale, and when this power exists, complete and ample as it most assuredly is,- it would be monstrous, without plain and express authority to that effect, to say that they could abandon, at pleasure, the usual and simple manner of making collections, and resort to judicial power for their enforcement.”

In the case of Coats v. Hill, 41 Ark. 149, it was said: “By onr law taxes are glebae ascripti — serfs of the soil —a charge which follows the land in whosesoever hands it may go.”

On behalf of the State it is insisted that the right to a personal judgment is given by §§ 10209 and 10210, C. & M. Digest. By the first of these sections it is provided that: “ On such final hearing the court shall render a decree declaring and enforcing said lien for taxes, by sale of the property to which said taxes pray have attached. * * * The court shall decree the said taxes shall be paid within three months after rendering said decree, and that, -in default thereof, said defendant shall pay a penalty of ten per centum on the amount of said taxes.”

Section 10210 reads as follows: “The sale of any property under said decree shall be made in the same manner as other sales are made under other decrees foreclosing liens in chancery, and with like effect, and the court shall distribute any fund accruing under this act among the States, counties and municipal corporations and school districts entitled thereto by law.”

These sections were intended to enable the State to enforce its claim against any corporation owing back taxes, whose property might be of such a character that the payment could be enforced only by the rendition of a personal judgment; but such is not the case here. The delinquent property is land, and land only, and we think there is nothing in the statute quoted from which marks a departure from the policy always pursued in all the State’s revenue laws, of making the land, and it only, liable for the taxes due on the land. The lands of a corporation might be sold in satisfaction of a decree rendered under the sections quoted from for taxes on other corporate property, but we think these sections mean, as applied to the facts of this case, where the taxes on lands only are involved, that the court is merely authorized to find in the decree the amount of the taxes due and to declare the same to be a lien on the laud involved, and to order each tract of land sold for the taxes due thereon, unless the same are paid within three months of the date of the decree.

The decree of the court below will therefore be modified by permitting a recovery of back taxes on the Big Island group of lands only, and on those lands only to the extent herein indicated.

Wood and McHaney, JJ., dissent, believing that the back-tax act is. not constitutional, as stated in Judge Wood’s concurring opinion in State v. Bodcaw Lumber Co., 128 Ark. 521.


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    Smith v. Callahan.
    Opinion delivered January 9, 1928.
    Municipal corporations — improvement district — majority op landowners. — A landowner signing a petition for establishment of municipal improvement district, under Crawford & Moses’ Dig., § 5&52, was entitled to have the lands to which he had deeds on record at the time the council passed on the petition counted in determining whether the required majority in value of landowners in the district had signed for the improvement.
    Appeal from Pulaski Chancery Court; Frank H. Doclge, Chancellor;
    affirmed.

      John P. Streepey, for appellant.

      Carl E. Bailey, for appellee.
   Smith, J.

The question presented on this appeal is, whether the petition of property owners contained the signatures of a majority in value of the landowners as required by § 5652, C. & M. Digest, for the establishment of a proposed improvement district.

A number of questions, are discussed in the briefs, but it. is conceded on both sides that the necessary majority was secured, if all the property-standing in the name of Paul E. Grabiel at the time the petition was passed upon by the city council is counted for the improvement, and, as we think it should be counted, we discuss no other question.

Grabiel owned certain lots in the proposed improvement district at the time he signed the second or majority petition, and, after the petition was filed with the city council, lie bought additional lots having a total assessed valuation of $3,380. He received a deed to these additional lots on July 12, 1927, which duly appeared of record when on July 22, 1927, the city council ascertained and declared that the petitioning property owners had the necessary majority.

It was held by the chancellor that all the property owned by Grabiel at the time the petition was acted upon by the council, as evidenced by. deeds to him then of record, should be counted for the district, and this finding gave the petitioners the necessary majority, and, upon the appeal from that decree, counsel for appellants say: “There is one name (Grabiel) that appellants contend should have been deducted by the chancellor, and this is, in our opinion, the main and only issue in this appeal.”

Section 5652, G. & M. Digest, provides that, within three months after the publication of the ordinance passed, upon the petition of ten or more property owners, pursuant to § 5649, 0. & M. Digest, in which the boundaries of the proposed improvement district are designated, a second petition shall be filed for the creation of the improvement district. Section 5652, supra, requires that this second petition shall designate the nature of the improvement to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district, and requires the city clerk or town recorder to give notice advising the prop erty owners within the district that, on a day therein named, the council will hear the petition and determine whether those signing the petition constitute a majority in value of such owners of real property. In the determination of this fact the statute provides that “the council and the chancery court shall be guided by the record of deeds in the office of the recorder of the county, and shall not consider any unrecorded instrument.”

It thus appears that the statute has prescribed the evidence which shall be considered and be determinative of the right of petitioners to sign for the proposed improvement and the extent to which the signatures shall be counted, this being the assessed valuation of the property owned by the petitioners — all of it — within the limits of the proposed district to which their title is evidenced by a recorded deed at the time the petition is passed upon by the council.

This statute was construed in the cases of Malvern v. Nunn, 127 Ark. 418, 192 S. W. 909, and Walton v. Commissioners of Light Imp. Dist. No. 1 of Benton, 144 Ark. 249, 222 S. W. 1056.

In the last cited case it was said that a presumption of ownership is to be indulged in favor of persons in possession of or who pay. taxes on lands to which they have no title of record, as it had been previously held in the case of Malvern v. Nunn, supra, that such persons might have title by descent cast, or under a will, and, if so, were eligible to sign, and in the Walton case, supra, it was insisted that this presumption was conclusive, but we held that it was only prima facie and might be overcome by evidence to the contrary. It was there shown that there were no deeds of record under which certain petitioners might claim title under wills or by descent cast, and the names of such persons were excluded and not counted. It was there stated that many landowners negligently fail to have their deeds recorded, and that this was probably true in that case, but, even so, those persons and their heirs and devisees were excluded by the statute from being counted as qualified signers. The test of the right to sign was there restated in a quotation from the case of Malvern v. Nunn, supra, as follows: “Deeds of record in the recorder’s office in the county at the time the council passes on the question is the criterion, in so far as the property represented by instruments subject to record is concerned.”

It will be remembered that Grabiel was the owner of property in the propoised district at the time he signed the petition and at the time the petition was filed with the council, and it was not required by the statute that he make a list of the property' owned by him in the district. The question presented is, therefore, to what extent shall the assessed valuations on property owned by G-rabiel be counted for the improvement ? The answer to this question, under the cases cited, is, all the lands in that district to which he had a deed of record in the office of the recorder of the county at the time the council passed upon the petition.

The decree of the chancellor accords with this view, and it is therefore affirmed.


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    Rogers v. Vanderbilt.
    Opinion delivered January 9, 1928.
    Fixtures — right to remove buildings. — A grantee of standing timber with a right to a millsite for the purpose of cutting the timber into lumber, held to have a right to remove buildings built on •rocks or blocks laid on the ground for the necessary use of employees in the construction and operation of the mill, there being no intention to make such buildings permanent accessions to land or irremovable fixtures.
    Appeal from Independence Chancery Court; A. 8. Irby, Chancellor;
    reversed.

      W. K. Ruddell, for appellant.

      W. M. Thompson, for appellee.
   Smith, J.

This case does not differ in any material respect from the case of Barnes v. Jeffus, 173 Ark. 102, 291 S. W. 990. The instant case is therefore controlled by the former one.

In this ease, as in that, the owner of the fee title to certain land sold the timber standing thereon, and granted a fixed time for its removal. In the instant case the timber deed gave the grantee the right to a mill-site on said land for the purpose of cutting said timber into lumber and for sawing other timber, if desired, with the right to all roads necessary for the purposes of the deed.

In the former case a fixed time- was given the' grantee to cut and manufacture the timber, with the right to construct roads, and the further “right to maintain logging camps while engaged in removing the timber, and to use sufficient of said lands outside of inclosed and. cultivated fields for site for mill and lumber yard.”

The instant case was submitted on an agreed statement of facts, from which it appears that the timber deed was duly recorded, and the grantee erected, in connection with the sawmill placed on the land, nine houses, each 8 feet wide, 16 feet long and 8 feet high, which were built upon rocks and blocks laid upon the ground. The grantor knew the houses were being built and their intended use, but there was no agreement that “said houses were to be built or that same should be removed at any time, or that they should become a part of the real estate.” The houses were built soon after the execution of the deed, and were used by the mill employees for living quarters, except one building which was used for a commissary and another which was used for a barn. The grantee began removing certain of these buildings, when the grantor brought this suit to enjoin him from doing so, and, upon the final hearing, the relief prayed was granted, and the grantee was enjoined from removing any of the buildings erected in connection with the operation of the sawmill.

In the opinion in the case of Barnes v. Jeffus, supra, it was said:

“Appellees (the grantors) knew that the-houses had been erected by appellant (the grantee) in the putting up and use of the sawmill for the manufacture of the timber, and consented thereto, having granted the right for the use of the land as a millsite upon the sale of the timber, but insisted that the dwellings became fixtures to which they were entitled upon removal of the mill.”

It appears from the statement just quoted, as well as from the general statement of the facts, that there was no express grant of authority to remove the buildings, but this authority was derived from the grant of the right of the use-of the land for a millsite. So here the grantee was under no obligation to erect any buildings, but he had the right to do so as an incident to the operation of his sawmill, and, as was said in the case cited, “the small dwellings were of temporary construction, the kind necessarily and usually built on such millsites for the use of the employees in the operation of 'the mill,” and, as was also said in the case cited, “these small dwelling-houses were put upon blocks that were setting on boards on the ground, and could be removed without reducing them to raw material, and without injury to the land;” and, as was also said in the case cited, “these houses were necessary for use of the employees in the construction and operation of the mill for the manufacture of the timber, and constructed with the consent of the owner of the land, and the intention on the part 'of the mill owner to remove them, with the machinery, when the timber had been manufactured, and fall within the classification of trade fixtures, which the lessee or tenant had the right to remove.”

Under these facts it was there said that: “There was no intention on the part of the mill owner, in constructing the houses, and nothing in the method of construction and materials used indicated an intention to make a permanent accession to the land or irremovable fixtures, and they did not become such, but remained personal property.”

Upon the authority of the case so extensively quoted from the decree will be reversed, and the injunction dissolved.


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    Reed v. Ziff Lodge No. 119 Order of Masons.
    Opinion delivered January 9, 1928.
    1. Pleading — indefiniteness of complaint — remedy.—In a suit by a master of a Masonic lodge to enjoin interference with the lodge’s possession of a tract of land and a building thereon, failure of the complaint to allege by what authority the suit was brought and failure to make certain trustees holding title for the lodge parties should have been reached by a motion to make the complaint more specific, and not by demurrer; such defects not appearing on the complaint.

      2. Injunction — indefiniteness of complaint. — A complaint to enjoin interference with possession, alleging a right of possession and possession of a building on a lot, which sufficiently described the building, was not demurrable for indefinite description of the land.
    3. Trial — -transfer of cause. — It was not error to transfer a cause from the circuit to the chancery court where both parties were seeking equitable relief.
    4. Vendor and purchaser — possession as- constructive notice.— Where a Masonic lodge had purchased a portion of an acre tract, and was in possession when á deed of the remainder to another purchaser was -delivered, the comers of their lot 'being marked by stakes, such possession was equivalent to notice of their title, regardless of the fact that the lodge’s deed was delivered subsequent to the delivery of the deed to the purchaser.
    5. Injunction — -interference with possession of lot — evidence.— Evidence that a Masonic lodge was in the possession of a 50-foot strip of land in an acre tract, and delivery of deed to the purchaser of the remainder of the acre tract, held to justify an injunction against interference with the lodge’s possession by the purchaser.
    0. Injunction — interference with possession of land — parties.— In a suit by the master of a lodge to enjoin interference with the lodge’s possession of land, the fact that the title was held for the lodge in the name of certain trustees, of whom the master was one, did not render an order granting an injunction erroneous, because the other trustees were not parties, where they testified as witnesses, and no- motion was made to make them parties, since such other trustees thereby estopped themselves from disputing the right of the master to maintain the suit.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      William Kirten, for appellant.

      Golden & Golden, for appellee.
   Smith, J.

This suit was brought by Ziff Lodge No. 119 of the Order of Masons, by E. Anderson, worshipful master, against Rufus Reed, and for cause of action it was alleged that the plaintiff was the owner of a tract of land described as follows: “Fifty feet on the northeast corner of a certain parcel of land known as the Brownfield property, and two hundred and ten feet running west on Maple Street from Main- Street, thence around said parcel of land,” and that title thereto was acquired under a contract for its purchase dated April 18, 1923, with one T. J. Walker, who later executed a deed thereto when the balance of the purchase money specified in said contract had been paid. It was further alleged that the plaintiff had purchased this land from one T. J. Walker, and that, pursuant to the contract of purchase, plaintiff had taken possession and had moved the Masonic building or lodge hall thereon, and had later received a deed thereto from Walker; that the defendant, Reed, was interfering with the plaintiff’s possession and was attempting to inclose the building under a fence, and had forbidden plaintiff from entering the building or going upon the land on which it stood.

There was a prayer that defendant be enjoined from interfering with the plaintiff’s possession and use of said land.

Upon filing this complaint a temporary injunction was issued by the chancellor, restraining defendant from interfering with plaintiff’s possession.

A demurrer was filed to the complaint upon the grounds that the plaintiff did not have legal capacity to sue; that there was a defect of parties plaintiff; and that the complaint did not state a cause of action. The demurrer was overruled, and defendant, reserving the questions raised thereby, filed an answer, alleging that the description of the land sued for was so indefinite that it was void for its uncertainty.

It was further alleged in the answer that, on November 27, 1923, T. J. and S. F. Walker executed a warranty deed to defendant, conveying an acre of land, which was there properly described, but from the acre so described a strip of land was reserved under the following description: “less a strip of land off the north side of said tract 50 feet north and south by 210 feet east and west, said land having been sold by grantors to the Masonic Lodge.”

The deed from Walker to defendant was executed just a year to a day before the execution of the deed from Walker to the lodge, and the answer alleged that the lodge building was not on the land reserved from the grant in the deed to the defendant, and that plaintiffs were in possession of a portion of the acre to which they had no title whatever. There was a prayer that the injunction be dissolved, and that defendant have judgment for damages. An amended answer and cross-complaint was later filed, in which it was alleged that plaintiff’s deed was a cloud on defendant’s title, and should be canceled, as the deed to defendant from Walker did not convey all the land he had purchased, and that the same should be reformed so as to describe and convey all the acre except the north fifty feet.

The cause was transferred from the chancery court to the circuit court, and retransferred from the circuit court to the chancery court over defendant’s objection.

It appears that Walker had title to a tract of land approximately one acre in area, each of its four sides being .210 feet in length, and it was referred to by all the witnesses as the acre lot. This lot fronts Main Street in the town of Dermott, and, at a time not made certain, but prior to the execution of any of the contracts or deeds herein referred to, the town laid off a street designated as Maple Street, • which ran across the north end of the acre lot and at a right angle with Main Street.

It is the insistence of defendant that the strip of land -attempted to be reserved from the land g'ranted in the deed to him from Walker practically coincides with Maple Street, whereas the lodge moved its building on a part of the acre lot south of that street. Defendant therefore alleged, and now insists, that, if the deed from Walker to the lodge and the reservation from the grant in his deed' from Walker are not void for uncertainty, the strip of land conveyed to the lodge is the- north fifty feet of the lot, whereas the lodge building is south of this fifty-foot strip of land.

The court found, on the final submission of the cause, that plaintiff was the owner of the strip of land in controversy, and the temporary injunction was made permanent, and defendant was perpetually enjoined from interfering with the plaintiff’s possession.

It is earnestly insisted that the demurrer to the complaint should have been sustained, for the reason that the title to the lot in controversy was not in the lodge or its worshipful master, but was in the name of E. Anderson and three other persons as trustees for the lodge; that the land described could not be identified by the description employed; and that the contract of sale and the deed executed pursuant thereto were both void because of the defective description.

The complaint alleged that the lodge was in possession of the land in controversy, and that the suit was brought by the worshipful master of the lodge to protect this possession, and the demurrer as to the defect of parties was based upon the ground that the worshipful master did not allege title in himself.

The suit was brought as one to protect the possession, and does not -allege by what authority the worshipful master of the lodge sues to protect it. These defective allegations -as to the right of the worshipful master to the possession for the use of the lodge should have been reached by a motion to make more specific, and not by a demurrer. Sanders v. Carpenter, 102 Ark. 187, 143 S. W. 1091. There was no motion to make the complaint specific by alleging the authority under which the suit was brought, nor was there any motion to bring in new parties. The defect of parties was not apparent from the face of the complaint.

It is true the complaint alleged the right to the possession of a strip so indefinitely described that it could not be identified by the description employed; but the complaint alleged the right of possession and the possession of a building on a lot only one acre in area, and this allegation was at least a sufficient description of the house itself. We conclude therefore that the demurrer was properly overruled.

We are also of the opinion that no error was committed in retransferring the cause from the circuit to the chancery court. The plaintiff alleged that it was in possession of the property, and each party asked relief of an equitable nature against the other.

The testimony in the case established the following facts: In 1920 Walker entered into a verbal contract with defendant Reed to sell him the acre lot for the snm of $800, deed to be made when that sum had been paid, and Reed, after paying $225 of this amount, discontinued his payments. Walker testified that Reed advised him that he had bought another lot and would not complete his payments.

Walker made the contract herein referred to to sell the lodge a strip of land fifty feet across the lot, the contract being dated April 18,1923, for the sum of $200, and a cash payment of $50 was made at the time, and Walker staked off the land which he thus contracted to sell, it being parallel to and south of Maple Street. Reed brought suit to enjoin this sale, and alleged his prior purchase, and obtained a temporary injunction. Walker filed an answer to this suit, in which he alleged that Reed had, by his failure to make the deferred payments, forfeited his rights under his verbal contract of purchase, but Walker made a tender of a deed in his answer to Reed, which he offered to deliver upon the payment of the balance due under the contract. This offer was not accepted by Reed, and the injunction was dissolved and the suit dismissed on May 19, 1923.

In the meantime Walker had been sued by his wife for divorce and alimony, and he paid $195 for her claim against the lot. Reed thereupon made another contract with Walker, which Reed called a compromise -of the first suit, but which Walker testified was an entirely new trade. When this trade was made the lodge building had been moved on to the lot, where it now stands. Reed testified that, under the new trade or compromise settlement, he was to get title to all the lot except the north fifty feet, and that the original price of $800 was to be paid in the following manner: He was to have credit for the $225 previously paid; he was also to have credit for the $200 paid by the lodge and the $195 which Walker had paid as alimony, which would leave a balance of $175 'due, and that he paid this in cash and received a deed to the entire acre “less a.strip of land off the north side of said tract 50 feet north and south by 210 feet east and west, said land having been sold by the grantors to the Masonic Lodge.”

It is Reed’s contention that, as his deed is prior in time to the one of the lodge, he takes title to the entire acre, which is accurately described in the deed to him, and that the reservation of the fifty-foot- strip is void because it was not sufficiently described, and further that, if the reservation is not void, the strip reserved is the north fifty feet of the lot, most of which lies in' Maple Street, and not the fifty feet south of Maple Street, on which the building is located.

Walker, however, gives an entirely different version of the second contract with Reed. He says that Reed knew he had contracted to sell the lodge the fifty feet south of Maple Street, and not the north fifty feet of the lot, as the Masons were then in possession- of the land which they had bought and the corners of their lot were marked by stakes, a fact well known to Reed, and that the true description of the land reserved in his grant to Reed was the north fifty feet of the lot south of Maple Street, and that he agreed to accept $175 additional from Reed in payment for a deed to the remainder of the acre.

If Reed’s testimony is accepted as to the terms of the new trade, the balance due would have been $180, and not $175, as Reed testified; but the court evidently did not accept as true the statement of Reed. The court evidently credited the testimony of Walker, and not that of Reed, and, if Walker’s testimony is true, he only intended to sell the acre less the fifty-foot strip south of Maple Street.

We repeat, in this connection, the statement that the Masons were in possession of a portion of the acre when the deed to Reed was delivered, and this possession was equivalent to actual notice to Reed of the title, rights or equities of the occupants. Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591.

The facts in the case cited were that Smith owned the northwest quarter of a section of land, and agreed to sell Lockert forty acres off the west end of the south half. Smith undertook to convey the land, but, by mistake, described it as the southwest quarter of the northwest quarter, which description embraced only twenty-three acres, as the quarter quarter described was fractional, and, after the execution of this deed, Thalheimer ■bought the remainder of the quarter section. Lockert entered into the possession under the deed which described only twenty-three acres, and later brought suit to reform his deed. Thalheimer had purchased without actual notice of Lockert’s occupancy, and Lockert did not place his deed of record until after the sale to Thalheimer, but Thalheimer had been informed by Smith that he had previously sold forty acres to Lockert, who was in the actual possession of eight acres of the land. It was held on the appeal to this court that “such possession was equivalent to actual notice of the title, rights or equities of the occupant,” and that, as Thalheimer had purchased with notice of these equities, Lockert was entitled to have his deed reformed.

So here, Reed’s second contract with Walker was made after the lodge had taken and was in actual possession of a portion of the land, and had moved its building thereon, and Reed was therefore charged with notice of the lodge’s interest in the land, and that interest, as established by the testimony, -was to a strip of land adjacent to and south of Maple Street.

When the testimony was taken it appeared that Walker had made the deed to the trustees of the lodge, and that this deed described the strip of land for which the lodge contends. But, while the testimony established the fact that the legal title to the lot was in the trustees, and that they were not parties plaintiff, it also appeared that Anderson, the worshipful master of the lodge, who brought the suit, was one of the trustees, and that the other trustees testified as witnesses in the case and otherwise participated in its prosecution, There was no motion, after these facts were developed by the testimony, to have the trustees made parties.

■ In the case of Missouri Pacific R. Co. v. Block, 142 Ark. 127, 218 S. W. 682, Block, in his individual name, sued to recover damages sustained in the shipment of a carload of hogs. The complaint had alleged title in Block, a fact which was denied by the answer. In the cross-examination of Block, the fact was developed that the hogs were owned by himself and one Mitchell, a partner, and a motion was thereafter made to dismiss the suit because Mitchell was not .joined as a party. It was there said:

“Mitchell was present at the trial of the case, and was introduced as a witness by appellee; in fact, the right to recover was established by Mitchell’s testimony. His presence at the trial constitutes an approval of the prosecution of the action in the name of his partner alone, and he is estopped to dispute appellee’s right to maintain the action. This estoppel would prevent 'appellant from being subjected to another suit for the same right of action, and there is no prejudice in the court’s refusal to dismiss the action or to require Mitchell to be made a party. Appellant did not move the court to make Mitchell a party, which doubtless would have been done if asked.”

So here, there was no motion to make the trustees parties, and by their active participation in the trial of this cause they estopped themselves from disputing the right of their co-trustee, suing as the worshipful master or presiding officer of the beneficiary lodge, to maintain the suit.

Upon a consideration of the whole case it appears that equity has been administered, and the decree is therefore affirmed.