text:
    Woodruff County v. Road Improvement District No. 14.
    Opinion delivered June 23, 1924.
    1. Bridges — approval of contract for construction. — Where the county judge by the same contract agreed to contribute to the building of two county bridges, and the county court approved and allowed a claim for building one of the bridges and in the judgment stated that the claim for the other bridge was deferred because not completed, this amounted to an approval of the contract.
    2. • Bridges — agreement of county — evidence.—'Evidence held to warrant a finding of a contract between a county judge and a road improvement district for the payment of a named sum toward the construction of two bridges.
    3. Counties — verification of claim. — Where a county contracted to pay a named sum for the construction of a bridge within an improvement district, and accepted and used the bridge, it cannot resist the payment of a claim therefor because the verifying affidavit was not couched in the precise language required by Crawford & Moses’ Dig., §§ 2029, 2030.
    Appeal from Woodruff Circuit Court, Southern District; E. D. Robertson, Judge;
    affirmed.

      R. M. Hutchins and Kirby S Hays, for appellant.
    The alleged contract under which the claim was made was void. It is not even claimed that the procedure was followed which is prescribed by law regulating the construction of bridges of this class, i. <?., the appointment of commissioners, the selection and report upon a site for the construction thereof, according to plans agreed upon and approved1 by the county court. Article 19, § 16, Const. 1874; C. & M. Digest, § 827. The contract was not regularly made, nor was there shown to have been a ratification of it by the county court, the only agency having authority to bind the county to pay for such improvements, and there can be no presumption in favor of its validity. The county court itself was powerless to make a valid contract for the construction of bridges of this class, unless an appropriation had previously been made for bridge construction, which was wholly or in part unexpended. C. & M. Digest, § 1976; 61 Ark. 74; 103 Ark. 468; 54 Ark. 645.

      W. J. Dinga/n, for appellee.
    In Woodruff County v. Road Improvement District No. 14, 159 Ark. 374, involving payment for the first bridge constructed under this contract, it was held that in an action to recover for building a bridge, the presumption is that money to build the same has been appropriated, citing 72 Ark. 330 and 103 Ark. 468; and also that the county court could have made a valid contract in the first instance for the construction of the bridge there in question. Under that decision the county court could have made a contract to build the bridge involved here, and for which payment is sought. And, as decided in that case, the court ratified the contract for the building of this bridge. The language employed by the county court in disposing of the Eoaring Slough bridge claim by allowing it, and in continuing the matter as to the Bear Slough bridge, because “same not being completed,” can bear no other interpretation than a ratification. 72 Ark. 330.
   Wood, J.

This action was instituted by Road Improvement District No. 14 of Woodruff County (hereafter called appellee) against Woodruff County to recover the sum of $2,500 alleged to be due the appellee for the cost of construction of a bridge across Bear Slough in Woodruff County and in the territory embraced in the improvement district. The commissioners of the appellee filed what is designated as an “account” in the county court of Woodruff County, in the nature of a complaint, in which they state that, “in pursuance of a contract entered into on the 15th day of April, 1920, between the county judge of Woodruff County and the appellee, through its commissioners (naming them), it was agreed that the commissioners of appellee act for the county and the appellee in the construction of a steel bridge across Bear Slough, on the boundary line between the northern and southern districts of Woodruff County; that it was ag'reed that Woodruff County would pay $2,500 of the contract price for the construction of the bridge; that the commissioners had constructed the bridge and had paid to the Illinois Steel Bridge Company, the contractors, the contract price for such construction. The following is the verification of this account or complaint: “State of Arkansas, County of Woodruff: Comes E. W. Butler, D. J. Williams and J. F. Summers, and on their several oaths state that they are the commissioners of Road Improvement District No. 14 of Woodruff County, Arkansas, and that the statements in the foregoing account are true and correct; that, under the contract referred to in said statement of account, Woodruff County justly owes Road Improvement District No. 14 the sum of $2,500, and said sum is past due and no part thereof has been paid. (Signed) J. F. Summers, E.-W. Butler, D. J. Williams. Subscribed and sworn to before me this 30th day of March, 1922. A. H. Hamilton, notary public. My com. ex. 2/2/26.”

An exhibit was attached to the account, the report of the commissioners, in which it is recited that the bridge had been completed by the contractors “according to the plans and specifications heretofore approved by this court * * They also exhibited a certified copy of the county court’s order, which recited as follows : “ On this day is presented to the court the claim of Boad Improvement District No. 14 in the sum of $2,500, against Woodruff County for the construction of a bridge, and, upon an examination by the court, said claim is disallowed. January- 1, 1923.” They also exhibited the following account:

“Woodruff County, Dr., To Illinois Iron & Steel Bridge Co.

To steel bridge Boaring Slough $2,500.00

To steel bridge Bear Slough 2,500.00

$5,000.00 ■

“Indorsed: Examined and allowed in the sum of $2,500 for the steel used on Boaring Slough. 12/30/1920. J. W. Simmons.

“The above is to he issued in $100 pieces. Filed December 30,1920. Walter Jimmerson, Clerk. By N. N. Cain, D. C.”

They also exhibited the following:

“On this day is presented the claim of the Illinois Steel Bridge Company for steel for Boaring Slough and Bear Slough bridges, and, upon consideration, the claim for $2,500 for Boaring Slough is allowed and the claim for Bear Slough bridge, not being completed, is deferred. J. W. Simmons, county judge.”

The above account was filed and disposed of as above on the 30th of December, 1920.

They also exhibited a certificate of the county clerk to the effect that, according to the treasurer’s report to the county court of Woodruff County, filed at the January term, 1921, there were no funds in the treasury to the credit of ordinary county funds and no funds to the credit of the road and bridge fund on the 30th of December, 1920.

J. F. Summers testified that he was one of the commissioners of the appellee and chairman of its board of directors; that appellee was a duly organized improvement district; that some time in March or April, just before the plans of the improvement district were filed, he ■called the attention of Judge Simmons, county judge,- to the condition of the bridges over streams known as Roaring Slough and Bear Slough. The effect of his testimony was that, after talking over the matter with the county judge as to the character of the bridges appellee wished to construct over these streams, the county judge was to pay $2,500 towards the construction of each bridge; that, with that information in mind, the commissioners had the plans drawn for the expenditure of that sum above what they had contemplated, in order to compass the building of a permanent bridge of proper construction, as indicated by the county judge. The bridges were to take the place of the bridges that were on the public road running across the above-mentioned streams which had been in use since the roads were laid out, and were then in a dangerous condition, and had been condemned by the overseer. The bridges constructed by the appellee cost $8,500 each, and the county judge agreed to pay $2,500 on each of the bridges. At the close of the year 1920 the bridge over Roaring Slough had been constructed but the bridge over Bear Slough was only partially built, the piers having been put down and the steel work being all on the ground. The appellee presented a formal claim to the county court for $5,000 in the name of Illinois Iron & Steel Bridge Conipany, with the supporting affidavit and report of the engineer of the district and the testimony of the commissioners. Witness then identified the record of the county court as above set forth, and stated that it explained everything in connection with it. Witness referred to the order of the county court which recited that “the claim for $2,500 for Roaring Slough bridge is allowed, and the claim for Bear Slough bridge, not being completed, is deferred,” as follows: “It says Bear Slough not being completed — it wasn’t completed, because only part of it had been constructed, and the steel was on the ground, and the court did not allow the entire five thousand dollars. The claim was recognized, but action was merely deferred until completion of the bridge.”

Witness was asked this question: “Was there any question raised by the court so as to take proof on the allowance of this particular claim? A. None whatever. We brought in the engineer, and a regular sworn statement of the condition that it was in.” Witness was then asked, “Later, after the new county judge came into the office, what further did the commissioners do with regard to having the remainder of the claim allowed, if anything?” and answered. “After the bridg’e had been completed and painted, and everything completed, the commissioners then made out and presented the claim, which is in this record here, to the county court, for allowance for the deferred amount mentioned in this order. This was merely a continuation of that matter. Q. And this is the claim which was disallowed? A. Yes sir.”

It was from the action of the county court in failing to allow the balance of the claim that this appeal is taken. The witness further testified on cross-examination, explaining the agreement, and stated that the plans of the appellee for the bridges were not made and filed until after the talk with the county judge, and that the county judge was to pay the sum of $2,500 on each bridge, and stated that, by getting the substantial bridges at a cost of $2,500 each, it was an economical proposition for the county. The commissioners didn’t expend all the money raised in the district-by $65,000, and retired bonds in that amount that were not then due. The old bridges were wooden bridges.

The testimony of Summers was corroborated by the testimony of one of the other commissioners. The road-overseer in appellee district testified that the new bridges were constructed in 1920. He corroborated the testimony of Summers' as to the condition of the old bridges, and testified that the county judge then in office, Judge Carl-Lee, successor to Judge Simmons, told witness to take what material fie could get out of the old'bridge and use it in building bridges over other streams, which witness did.

Judge Carl-Lee testified on behalf of the county, denying that he had told the overseer to take the material in the old bridges to use in building other bridges. He stated that the steel bridge constructed over Bear Slough by the Illinois Steel Bridge Company, on which the action in controversy was predicated, had not been accepted by him as county judge, or by the county court since he had been the judge; that the commissioners of the appellee were not his agents for the construction of any bridges, and had no authority to act for the county in any capacity from witness or from the records of his predecessor, as far as witness had been able to find. Witness did not think there was any such record. The county court since January 1, 1921, had not authorized the construction of the bridge over Bear Slough by the commissioners of the appellee. Witness could not say as to 1920. The county court had not ratified in any way any action of the commissioners of the appellee in the construction of the bridge over Bear Slough since January 1, 1921.

Both Woodruff County and the appellee introduced the record of the county court as above set forth, pertaining to the presentation and allowance and disallowance of these claims.

It was shown in rebuttal that the Illinois Steel Bridge Company had been paid in full for the construction of the bridges by the appellee. A witness stated that the county court said that the commissioners of the appellee were sufficient to act as the county’s representatives in the construction of the bridges.

Upon the above facts the court overruled the motion to dismiss the action, and found that there was but one contract for the building of the two bridges, and that the county court approved and paid for one bridge and entered an order of record mentioning the other bridge, and gave as a reason for deferring action on it that the bridge was not completed; that both bridges were under the same contract, and that the action of the county court amounted to an approval of that contract. The court thereupon entered a judgment in favor of the appellee, from which is this appeal.

1. In the case of Woodruff County v. Road Imp. Dist. No. 14, 159 Ark. 374, this court held that county warrants which had been issued in payment for .the construction of Roaring Slough bridge were valid. The facts of that case show that Roaring Slough bridge was built under the same agreement or contract with the county judge as that under which Bear Slough bridge, the bridge involved in this controversy, was constructed. It was all one contract, and what was said in the opinion in that case clearly shows that the appellee is entitled to recover upon the facts disclosed by this record. In that case in the statement of facts we said: “After this bridge (Roaring Slough bridge)' had been constructed, the board of commissioners of the road improvement district paid the Illinois Steel Bridge Company the full amount due it for the construction of the bridge. The payment was made out of the funds of the road improvement district. The board of commissioners of the road improvement district then presented a claim to the county court, in the name of the Illinois Steel Bridge Company, for the sum of $'2,500, to be applied toward the payment of the construction of the Roaring Slough bridge.” Other facts are then stated substantially as in the case at bar. In the opinion in that case we said: “The county court canceled the warrants in question, and refused to reissue them because they had been issued without authority in the first instance. The county court erred in this conclusion. The bridge across Roaring Slough was a county bridge, which it was the duty of the county court to construct in the first instance, and to replace after the old bridge had worn out. * * * This court has held that a county may, like an individual, ratify an unauthorized contract made in its behalf if it is one the county could have made in the first instance. It follows that, if a county could ratify an unauthorized contract, it could ratify one which it had authorized.”

We concur in the view of the trial court that the action of the county court in approving and allowing the claim for the building of the bridge over Soaring Slough and mentioning in' its judgment the claim for the Bear Slough bridge, and reciting that “the claim for Bear Slough bridge, not being completed, is deferred,” amounted to an approval of the contract between the county judge of' Woodruff County and the appellee for the construction of the Bear Slough bridge. The undisputed facts show that the work of building these separate bridges was under one and the same contract. The language in which the order of the county court was couched was simply tantamount to saying, ‘ The contract for the building of these bridges is approved, and the claim is allowed for the one completed, and the allowance of the claim for the other is deferred until that is also completed.”

2. This cause was, by consent, submitted to the trial court sitting as a jury, and the trial court was warranted in finding, from the record and oral testimony in the case, that the contract between the county judge and-the appellee for the payment of $5,000 toward the construction of these bridges was entered into in the spring of 1920, and that the bridge over Boaring Slough had been completed by December 30,1920; that the bridge over Bear Slough was not then completed. But the contract with the county judge was made certainly before December 30, 1920. There is a certificate of the county clerk in the record showing that on December 30, 1920, there were no funds in the treasury to the credit of ordinary county funds or to the credit of road and bridge funds. But this testimony does not show or tend to show that there was no appropriation by the levying court for the building of these bridges prior to the time the contract was entered into between the county and the appellee, nor does it tend to show that there was no money in the county treasury to the credit of the road and bridge fund at the time the contract was made.

In Woodruff County v. Road Improvement District No. 14, supra, we said: “This court has held that, in an action against a county to recover for building a bridge, the presumption is that money to build the same has been appropriated.” Citing Howard County v. Lambright, 72 Ark. 330, and Watkins v. Stough, 103 Ark. 468. In Howard County v. Lambright, supra, we said: “But the evidence does not show whether such appropriation had been made or not, and, in the absence of any proof on that point, we should not presume that the county judge authorized the construction of the bridge, in violation of the statute. ’ ’

Furthermore, there was testimony from which the trial court might have found that the county judge, as the new bridges were being constructed, authorized the road overseer to use the old material in the building of bridges elsewhere, thus showing that the county judge was accepting the new bridges for the use of the public. “We do not think,” says Judge Riddick, “that the county can take charge of the bridge, and allow the public to use it as a public bridge, and thus get the benefit of the work and labor of the contractor and still defeat the claim for compensation. * * * The obligation to do justice, rests on all persons, natural and artificial, and, if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.”

3. It follows from what we have said above that, •since there was a contract by the county with the appellee to pay the sum of $2,500 for this bridge, which the county has accepted and is using under the terms of the contract, it is in no attitude to resist the payment of the claim because the verifying affidavit was not couched in the precise language required by §§ 2029 and 2030 of Crawford & Moses’ Digest concerning the verification of accounts for the allowance of claims. This so-called account was really in the nature of a complaint stating a cause of action bottomed on a contract to pay a specified sum of money, and the verification thereto met the requirements of the law.

We find no reversible error in the record. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Burel v. Hutson.
    Opinion delivered June 23, 1924.
    1. Limitation op actions — obstruction of flow op water. — In an action for damages caused by a levee, whether the levee was a permanent structure of such nature that damage caused thereby • must necessarily result, so that a cause of action arose on completion of the levee, held for the jury under the evidence.
    2. Waters and watercourses — flooding by levee — jury question. —Whether a landowner was entitled to recover for damages from flooding caused by a levee, held properly submitted to the . jury under correct instructions.
    Appeal from Lawrence Circuit Court, Eastern District; Dene TL. Colemcm, Judge;
    affirmed.

      W. E. Beloate, for appellant.
    The levee complained of was a permanent obstruction, and the action was barred by the three-year statute of limitations. 92 Ark. 406, 412; 107 Ark. 335; 136 U. S. 403; 22 A. & E. Enc. 698; Anderson, Law Dictionary, 769; 157 Ark. 125. The measure of damages is the difference between the value of the land as it would have been with the ditch open and the value of it with the ditch closed. 35 Ark. 622; 62 Ark. 360.

      Smith & Gibson and Cunningham & Cunningham, for appellee.
    Under the evidence the jury would not have been warranted in finding that the levee was a permanent obstruction. As to the right to recover, see 95 Ark. 299. The rule there stated was limited to some extent in the ease- of Baker v. Allen, 66 Ark. 273, in holding that the lower owner would only be liable when he unnecessarily injures the upper proprietor by erecting a levee when, by reasonable care and expense, he could have avoided it; but this limitation was met by proof, uncontradicted, that appellant could have enlarged her ditch so as to carry off the water, at an expense of about twenty-five dollars, without building the levee.
   Wood, J.

This is an action by C. C. Hutson against Lizzie Burel, to recover damages growing out of the alleged construction of a levee. Hutson alleged that he is the owner of a tract of land in Lawrence County, Arkansas, and that Lizzie Burel is the owner of a tract lying immediately south;. that there is a low place or draw across his land which comes down from the lands lying north of it and passes on across the lands of the defendant, Lizzie Burel; that, in the year 1920, the defendant, Lizzie Burel, caused a levee to be built along the north side of her land across the draw or drain, which stopped the flow of the surface water in its natural channel and threw same back upon the lands of the plaintiff, to his damage in the sum of $200; that, in the year 1921, the defendant also caused the levee to be maintained, to the plaintiff’s damage in the sum of $250, and that the same occurred in 1922, to plaintiff’s damage in the sum of $300. The damage to the plaintiff caused by the defendant in the building of the levee as alleged was by reason of the overflow of back-water over the plaintiff’s land and cotton crop.

The defendant, in her answer, denied all the material allegations of the complaint. She alleged that there was a small pond on the north end of her land, entirely cut off from the lands of the plaintiff by the county road and ditch, which ran east and west on her north line; that on the north side of the road was a ditch cut by plaintiff and paid for out of the funds of Lawrence County, running to the right-of-way of the Frisco Railroad lands, much lower than any part of defendant’s land, which point was the natural drain both for her lands and those north of hers, but, at low water, the road prevented the water from getting to the ditch; that, in order to better drain her small pond and keep her lands free from high water overflow when the water would run over the road and1 fill the low spot on her land, she, in 1909, placed a levee on her uwn land across the natural outlet of the water from her land; that some one, in 1920, 1921 and 1922, unknown to her, cut her levee, which she had maintained since 1909, and, upon discovering' the same, she had the «ame rebuilt as it had been since 1909. She alleged that, since the construction of this levee, she had maintained the same' as a permanent obstruction, and she therefore set up the three and seven-year statutes of limitation as a bar to the plaintiff’s action.

The plaintiff testified that he owned the land as alleged in his complaint, and that the defendant owned the land lying south and adjoining his land. There was a low drain which ran through his land and down through the land of the defendant in a southeast course, and went out at the southeast corner of her field into Coon Creek ditch. The water, if not interfered with at all, would go down and drain on through into Coon Creek ditch. Defendant built the levee all the way from twelve inches to two feet high, and it holds the water up in the public road and backs it on the plaintiff’s land. She has a ditch inside of her field up at the head of the levee. It would cost the defendant $25 to make a ditch that would drain off all the water. The levee was first put there nine or ten years ago. It had been washed down and rebuilt at different times — had been repaired from one to three or four times a year; that the levee is on the top of the ground. It is very easily and-cheaply moved. If it had not been repaired from year to year it would have washed away, because the force of the water washes it out. When the big heavy rain comes, it overflows the top of it, and sometimes works through it and washes the levee out. The levee was all the way from a foot to two feet thick at the top and from a foot to two feet high.

There was testimony tending to show that the levee was from fifty to sixty feet long, and several witnesses corroborated the testimony of the plaintiff as to the southeast course of the drainage from the lands of plaintiff on and across the lands of defendant. One witness testified that the levee had been maintained all the time since it had been built, except casual breakage, when it would be rebuilt. One witness testified that, if the levee was left alone, the high water would wash it away, and the main bulk of the water would go into Coon Creek. There was testimony to the effect that plaintiff put a culvert across the road which runs between the plaintiff’s and defendant’s lands; that the high water had washed a ditch across the road, and plaintiff put the culvert in running across the road. The road ditch was about eighteen inches lower than the top of the road, and the water had to go over that eighteen-inch ditch and over the road before it gets into defendant’s land. The levee is across the road from plaintiff’s land. It is fifteen or twenty steps long, or longer, and something like knee-high. The present rains run across the road. The water will go down the road ditch if it is open. The ditch is six inches lower than the road.

One witness stated that the culvert had to be put across the road; that the water could not get off any other way; that the road in some places was three feet higher than the ditch, and the ditch did not carry the water off. If there was no ditch on defendant’s side, the high water would go off. It takes high water to get over the road and ditch to get into defendant’s land.

The defendant testified that the levee was built in 1910. Prior to that time the water stood in her field,' covering twenty-five acres or more. It had no outlet. Other parties would not let her clean out the ditch she had made across her lands to theirs, so she, last year, lost twenty-five acres of crop, by water standing on her land. Bhe had had no work done on the levee, except when some one would cut it, and she would have it refilled. She had never heard of the levee washing away. The road is about a foot higher than the land. In high water the water would have to run over the road to get to her land. She did not think there was any water-on plaintiff’s land caused by ber levee. There was a good ditch on the north side of the road between her land and-plaintiff’s, and if they would keep that cleaned out it would take the water down to the railroad.

One of the witnesses for .the defendant testified that the levee was just as it had been since he had owned the land. It was cut last spring, because the field ditch was not sufficient to take off the water. If the ditch was not there, the water would stay there. The defendant’s field had to take care of the water that runs in there. The levee keeps it from running into the field. If it were not for the levee, the water that ran into the field would not run out. It would have to -stay there and dry up. The road ditch and road do not cause any water to stand on plaintiff’s land. During ordinary rains the water goes down the ditch between the public highway and Hutson’s farm into the Frisco ditch. When big rains come the water backs up over plaintiff’s land before it goes across the road to the levee.

One witness testified that this road is higher than Hutson’s field, some three or four feet. When the water is standing in Hutson’s field, the road is higher than the water. The road keeps it on Hutson’s field, and not the levee of defendant. The levee is about as high as the road. There was other testimony to the same effect, corroborating the testimony of the defendant.

The court, after defining the issues, told the jury that the burden was on the plaintiff to prove by a preponderance of the evidence that the levee built by the defendant was the cause of his damage as alleged; that, if they so found, and further that the levee was not a permanent structure, they should find for the plaintiff in such amount as the evidence showed he was entitled to for the loss of his crop, less the expense he would have been put to in making and gathering a full crop.

In its instruction No. 3 the court told the jury, in effect, that, if the defendant caused the levee to be -built in such manner as to cause damage to the plaintiff, when, by reasonable care and expense, she could have avoided such injury, tbe verdict should be for the plaintiff.

In instruction No. 4 the court told the jury, in effect, that.the defendant would not be liable for any damages that might have been caused by the construction of the road or the ditch on the north side of the road; that her responsibility rested solely on whether or not the levee which she erected was the cause of the damage.

In instruction No. 5 the court, in effect, told the jury that, if the defendant constructed the levee, and it was the cause of the overflow, yet if the levee was a permanent structure, that is, such an obstruction as would have continued except for the interference of man, then their verdict should be for the defendant.

In instruction No. 6 the court told the jury that the burden was on the defendant to prove that the levee was a permanent structure in order to entitle her to the bar of the three-year statute of limitation, and further, that it is only where a landowner obstructs the natural flow of surface water unnecessarily, when, by reasonable care and expense, he might have avoided' such an injury, that he becomes liable to the upper proprietor for damages caused by the obstruction.

The jury returned a verdict in the sum of $150 in favor of the plaintiff. The court rendered judgment in his favor for that sum, from which is this appeal.

1. The principal contention of the appellant is that the levee is a permanent structure, of such nature that the damage caused thereby must necessarily result, and the certainty, nature and extent of the damage could be reasonably ascertained at the. time of its construction, and therefore that the cause of action arose on the completion of the levee. To sustain this contention the appellant cites the cases of Chicago, R. I. & Pac. Ry. Co. v. Humphreys, 107 Ark. 330, and St. Francis Levee Dist. v. Barton, 92 Ark. 406. In the case of Levee District v. Barton, supra, the district constructed a solid embankment across certain lakes and bayous, thereby obstructing the lakes so as to canse the water to be impounded, overflowing lands cultivated by the plaintiff. Among other things, we there said, at page 410: “So, in this case, the obstruction of the ditch was permanent; that is, it will'continue without change from any cause except human labor. The effect of it was to restore the land, drained to the condition in which it was before the ditch was dug. Its present and future effect upon the land could be ascertained with reasonable certainty.”

In the' case of Chicago, R. I. & P. Ry. Co. v. Humphreys, supra, the railway built a railroad across a creek, with a culvert for the passage of the water, about eight feet high and thirteen feet long. Mrs. Humphreys occupied a house on certain lots across which the creek ran. She. was damaged by an overflow, and alleged in her action for damages against the railroad company that the damage was caused by the negligent construction of the culvert by not making it large enough for the natural flow of the water. In that case the undisputed evidence showed that the culvert was insufficient from the time of its construction; that everybody in the neighborhood knew that, after the culvert was constructed, every big rain resulted in an overflow of the house in which Mrs. Humphreys lived.

In the above cases we held that, under the state of facts presented, the statute of limitations barred the action. In the case of Chicago, R. I. & P. Ry. Co. v. Humphreys, supra, we said: “Indeed, the question cannot arise unless the obstruction is of a permanent nature, but its permanency does not of itself determine whether the damages which result from its erection are original or recurring. If it is of such a construction as that damage must necessarily result, and the certainty, nature and extent of this damage may reasonably be ascertained and estimated at the time of its construction, then the damage is original, and there can be but a single recovery, and the statute of limitation against such cause of action is set in motion ón the completion of the obstruction. If it is known merely that damage is probable, or that, even though some damage is certain, the nature and the extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitation is not set in motion until the injury occurs, and there may be as many successive recoveries as there are injuries. There are many cases in our reports on this subject, and their difficulty consists in the application of the law to the facts of each case.” (Then follows citation of numerous cases of this court on the subject).

The facts of the case at bar readily differentiate it from the facts of the above cases. In the above cases the obstructions were in and of themselves permanent. They would continue without change from any cause except human labor, but here the levee was of such an insubstantial character that the high waters would wash it away, and it had to be repaired from one to three or four times each, year. The levee was not a permanent obstruction; it was subject to be washed away by the big rains. The construction of the ditch and road, taken in connection with the construction of the levee, was such that the nature and extent of the damage could not have been reasonably known and fairly estimated at the time the levee was built, but the amount of such damage would be only speculative and conjectural. At least there was testimony to warrant such inferences and to justify the court in submitting the issue of the statute of limitation to the jury, which it did under correct instructions.

2. As to whether or not the appellee was entitled to recover, was also submitted to the jury under correct instructions. See Baker v. Allen, 66 Ark. 273; St. Louis S. W. Ry. Co. v. Mackey, 95 Ark. 299; also Morrow v. Merrick, 157 Ark. 618.

We find no error in the judgment of the trial court. It must therefore be affirmed.


text:
    Garner Manufacturing Company v. Cornelius Lumber Company.
    Opinion delivered June 23, 1924.
    1. Evidence — pakol testimony to explain. — A written contract of sale reciting: “Terms cash 10 — less 2 per cent.,” is so ambiguous as to render admissible parol evidence to explain it.
    2. Sales — right to alter written contract. — Parties to a written contract may alter, rescind or abandon same by a subsequent verbal contract.
    3. Sales — delivery of bill of lading. — -Mere delivery to a buyer of a bill of lading which is nonnegotiable does not transfer the title unless such was the intention of the parties.
    4. Sales — effect of reservation of title. — Where a chattel is sold with reservation of title until payment of the price, the title remains in the seller until payment, and a purchaser from the buyer acquired no title, though he buys in good faith for valuable consideration.
    5. Sales — invoice not evidence of title. — An invoice is not evidence of a sale, but is a mere detailed statement of the quantity and cost or price of things invoiced, and is as appropriate to a bailment as to a sale, and does not constitute a contract between the parties, though relevant in determining what the contract was.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Maim, Judge;
    reversed.

      Harry H. Meyers, for appellant.

      Coleman, Robinson $ House, for appellee.
   Wood, J.

On October 13, 1922, tlie Sargent Lumber Company gave tbe following order: “To Garner Manufacturing Company, Marvell, Arkansas: Please furnish us with the material itemized below. One carload dry 6/4 mixed oak lumber.” The order gave the prices to be paid for the various grades of lumber, and contained the statement that the printed part of the order is made a part of it, and that an inspector would be sent to load out the lumber in about thirty days. The order also contained the following statement: “Terms: Less 2 per cent, ten days.” It was signed “Sargent Lumber Company, by T. S. Sargent,” and was indorsed,'“Accepted, Garner Manufacturing Company, by P. R. Garner.”

This action was brought January 2, 1923, by the Garner Manufacturing Company against the Missouri Pacific Railway Company and the Sargent Lumber Company (hereafter called Sargent Company) to recover the possession of a certain car of lumber, which is described in the complaint. The complaint set up the above order of the Sargent Company, and alleged that the Garner Company sold to the Sargent Company the car of lumber in controversy under the false promise made by the Sargent Company that the car would be paid for in cash, and that the car was delivered to the railroad company on the promise and agreement that title was to be retained in the Garner Company until the balance of the purchase money was paid; that the car was billed by the Garner Company to the Mutual Lumber Company, St. Paul, Minnesota, under the orders and authority of the Sargent Company, and a bill of lading was issued to the Sargent Company by the railroad company December 15, 1922, and the car was moved by the railroad company to Paragould, Arkansas, where same is now held. The complaint alleged that T. S. Sargent and the Sargent Company were insolvent; that demand had been made upon them for the balance due on the car and they had refused to pay, and therefore the Garner Company was entitled to the possession of the car, and to damag’es against the Sargent Company for its detention, etc.

The Cornelius Lumber Company intervened on January 24, 1923, and alleged that it bought of the Sargent Company, December 15, 1922, the car of lumber in controversy, and caused the same to be delivered to the railroad company, consigned to the Mutual Lumber Company at St. Paul, Minnesota, and received its bill of lading for said lumber to the Mutual Lumber Company, which was indorsed and delivered to the Cornelius Company by the Mutual Company on the 15th day of December, 1922. The Cornelius Company denied that the Garner Company retained title to the carload of lumber, but alleged that it sold the same without reservation to the Sargent Company, and that it purchased the same from the Sargent Company for cash, and that the lumber was delivered to it before the action in replevin was instituted. The Cornelius Company set up that it was damaged by the wrongful detention of the property by the' Garner Company in the sum of $500. It prayed judgment in the sum of $1,300, the value of the lumber, and $500 damages for its alleged wrongful detention. The Garner Company answered the intervention, denying all of its allegations.

Frank Garner of the Garner Company testified and introduced the above-mentioned order in evidence. He also introduced the invoice of the lumber made by his company to the Sargent Company, which bore the indorsement “Terms: Cash 10 less 2 per cent.,” and recites that the lumber is billed to the Mutual Lumber Company, St. Paul, Minnesota, by the Sargent Company as shippers. Witness also introduced the original bill of lading, showing the car of lumber consigned to the Mutual Company at St. Paul, Minn., by the Mutual Lumber Company, and testified that he filled out the bill of lading, and signed the shipper’s name to it and delivered the bill of lading to the agent of the Sargent Company. The bill of lading was indorsed on the back, “Deliver to Cornelius Lumber Company, or order,” signed Mutual Lumber Company, by T. S. Sargent, treasurer. Over the objection of the appellee, the witness testified as to what was meant by the words ‘ ‘ Cash 10 — less 2 per cent.” on the invoice, that is, if the purchaser paid for the car within ten, days he got two per cent, off the invoice price, but if he paid after ten days he paid the' full invoice price.

The witness was also permitted to testify, over the objection of the appellee, that he told Fisher, the agent who conducted the negotiations for the Sargent Company, at the time the bill of lading was made and the car loaded, to give him a cheek for the lumber, and Fisher replied that he had no checks with him — that it was after banking hours. Fisher told witness to put a draft in the bank, and the Sargent Company would pay it. Witness said to Fisher: “I want you to understand we are not going to give- you this lumber- — we are not going to relinquish title until this lumber is paid for in full. ’ ’ Fisher replied, “That is -all right — just put the draft in the bank, and -it will be taken care of. We have the money in the bank to pay it.” Upon the faith of this statement that the draft would be paid, it was made out and put in the bank, and at the same time the bill of lading was -delivered to the Sargent Company. The draft was not paid, and this action in replevin was instituted. Sam Garner, over the objection of the appellee, testified to the same effect.

Sargent testified for the intervener substantially as follows: On December 9, 1922, the Sargent Company wrote the Cornelius Company in St. Louis offering to sell it this car of lumber. On December 11 the Cornelius Company replied, accepting the car. The Sargent Company then made out its invoice for the lumber and mailed it to the Cornelius Company. The Sargent Company sold the car in question to the Cornelius Lumber Company, as reflected by the letters and the invoice which were introduced in evidence. Witness testified that he was treasurer of the Mutual Lumber Company, and signed the indorsement on the back of the bill of lading. He had ho connection with the Cornelius Company, and the Sargent Lumber Company received a check from them for $926.10. The invoice showed that the car was sold to the Cornelius Lumber Company for $1,127.02, terms 80 per cent., balance on arrival. The -Sargent Company went into bankruptcy in January, 1923.

The cause, by consent, was submitted to the court sitting as a jury, and the above are substantially the facts upon which the court found, in part, as follows: “That the invoice of the Garner Company on its face showed that cash was not the condition of the transfer or delivery of this car. It was delivered f. o. b. Marvell. Evidently that car, according to this paper, was not a cash condition, because he at least had ten days to pay in cash. They told Mr. Fisher if the money was not forthcoming there would he no sale, hut that is in direct conflict with their invoice showing the terms, that he had ten days to pay it in. I think Mr. Gamer should have his money, but I do not see how I can give him his lumber under this state of facts. My holding will be that Garner Manufacturing Company parted with their lumber on terms, and not conditioned on cash, by their express invoice, and that it was a sale on these terms. They say ‘cash ten days,’ and it appears to the court that he had ten days to pay for it.”

The court thereupon entered a judgment in favor of the 'Cornelius Lumber Company, from which is this appeal.

The trial court found that the appellant parted with its lumber on terms, and not conditioned on cash, by their express invoice. This finding of the court was tantamount to excluding from its consideration the testimony of the Garners to the effect that the invoice, ‘ ‘ Cash ten— less two per cent,” meant cash in hand to the Garner Company, and that such was the agreement and understanding with the Sargent Company when the bill of lading was made and the car loaded. On this point the Garners testified that, when the car was loaded and the bill of lading was made, Frank Garner for the Garner Company told Fisher, acting for the Sargent Company, that the Garner Company was not going to relinquish title to the lumber until it was paid for in full. To this Fisher replied, “That is all right — just put a draft in the bank and it will be taken care of. We have the money in bank to pay it.” The Garner Company surrendered to the Sargent Company the bill of lading on that condition. On that condition the Garner Company forwarded the draft to the bank, and it was not paid. Thereupon the Garner Company brought this action in replevin.

The court erred in excluding this testimony from its consideration, and erred in holding that the above parol testimony was not admissible because in conflict with the invoice showing that the Sargent Company had ten days in which to pay for the lumber. In other words, the court treated the invoice as the contract between the parties, and construed the invoice as meaning that the' lumber was sold by the Garner Company on terms and not on condition that the title passed only upon the payment of cash. It thus appears that the court tried the cause without giving the appellant the benefit of its contention, which its testimony tends to prove, that title was reserved unless, and until, the cash was paid for the car of lumber. Even if the court were.correct in treating the order and invoice as evidencing the only contract between the parties, yet there was sufficient ambiguity in the terms of the invoice, to-wit, “Cash ten- — less two per cent.,” to justify oral testimony as to the meaning of those terms. And the testimony of the Garners to the effect that the Garner Company reserved the title until the -cash was paid, was not in conflict with, and did not tend to contradict or vary the terms of, the written contract, even if that contract meant that the Sargent Company was to receive two per cent, off if it paid cash in hand or cash in ten days. Therefore the excluded testimony was competent, even if the order and invoice evidenced the only contract between the parties. But we are further convinced that, even if the order and invoice evidenced the contract between the Garner and Sargent companies at the time the order was accepted and the invoice made to the Sargent Company, nevertheless the parties tq the contract had the right to change the terms of the written contract afterwards by verbal agreement. They could alter, rescind or abandon it, and enter upon a new and oral contract. Caldwell v. Dunn, 156 Ark. 126, and cases there cited.

Therefore the court should have taken into consideration the testimony of the Garners tending to show that, at the time the bill of lading was surrendered by the Sargent Company to the Garner Company, it was with tiie understanding that the Garner Company did not relinquish the title until the lumber was paid for in full. The Garner Company had a right to show, notwithstanding the delivery of the bill of lading to the Sargent Company, that it was not the intention of the parties at the time to pass the title to the latter company. Gibson v. Inman Packet Co., 111 Ark. 524. See also McGehee v. Yunker & Ronk, 137 Ark. 400. If the court had not misapprehended the law as to the competency of the above testimony, it might have found from such testimony that the Garner Company did not part with its title to the car of lumber, and that such car was delivered to the carrier for the Sargent Company, and that the bill of lading was delivered to the Sargent Company on the condition that the title, remain in the Garner Company until the draft was paid. It must not be overlooked that the bill of lading was nonnegotiable, and the mere delivery of the bill of lading to the Sargent Company did not operate to transfer the title to that company unless such was the intention-of the parties at the time- If the title to the lumber was reserved in the Garner Company until the draft was paid, the court might have found, had it considered the above testimony, that the Sargent Company, by selling the lumber, could not pass any title to its vendee, although its vendee purchased without notice that the title was reserved in the Garner Company. It is well settled in this State that “when a chattel is sold with reservation of title in the vendor until the price is paid, the title remains in him until the condition is performed, and a purchaser from the vendee acquires no title, though lie buys in good faith for a valuable consideration and without notice of the condition. McIntosh & Beam v. Hill, 47 Ark. 363, and cases there cited. Starnes v. Boyd, 101 Ark. 469-473. See also Clinton v. Ross, 108 Ark. 446.”

The error of the court in not taking into consideration the testimony of the Garners, as above indicated, was highly prejudicial to the rights of the appellant, and for this error the judgment must be reversed. As a guide to the trial court, in view of a new trial, inasmuch as the court seems to have treated the invoice as evidencing the contract between the parties, we deem it proper to say, in the language of the Supreme Court of the United States, that “an invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed 'Statement of the nature, quantity and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale;hence, standing alone, it is never regarded as an evidence of title.” Dows v. Natl. Exchange Bank, 91 U. S. 618-630; Sterns v. Baker, 150 U. S. 321-328. To be sure, the invoice was relevant testimony to be considered in determining what the contract was between the parties, but it of itself did not constitute a contract.

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


author: Hart, J.,

text:
    Beauchamp v. Hayes Stores Company.
    Opinion delivered June 23, 1924.
    1. Sales — evidence.—In an action on an account for goods sold to defendant B, where the defense was that the goods were sold to C, who was B’s successor, and plaintiff’s manager testified that he never knew anything about B having sold his business to C until after the sales involved, it Was competent for B to prove by a witness that the latter purchased goods on a written order from C prior to the sales in question.
    2. Appeal and error — harmless error — exclusion op evidence.— The exclusion of competent testimony tending to establish the defense is prejudicial error.
    Appeal from Pulaski Circuit Court, Second Division; Richard Mi Mann, Judge;
    reversed.
    STATEMENT OP PACTS.
    Hayes Stores Company sued C. L. Beauchamp in the municipal court of Little Rock to recover $212.62 alleged to be a balance due for merchandise. The defendant denied owing the account. From an adverse judgment the plaintiff appealed to the circuit court.

      According to the testimony of T. J. Hart, he was the manager for Hayes Stores Company in Little Rook, Arkansas, and was acquainted with C. L. Beauchamp. The latter owed the former a balance of $212.62 for merchandise. Beauchamp had been a customer of the Hayes Stores Company for about six years before the transaction in question, and his credit had always been good. The disputed account consists of various items, and runs from May 12 to June 20, 1922. Beauchamp bought' some of the goods himself, but for the most part he sent his wagon to the store for the goods. Tickets were given to the driver when he received the goods. He said that he never knew anything about the Colonial Investment ’Company, until the 24th day of June, 1922. Beauchamp then claimed that the Colonial Investment Company had bought a part of the goods in question.
    C. L. Beauchamp was a witness for himself. According to his testimony, certain items of the account in question were purchased by the Colonial Investment Company, and Hart knew that fact and checked off some of the items on the account charged to Beauchamp and put them on the account of the Colonial Investment Company. Hart knew that the Colonial Investment Company had purchased the business of Beauchamp, and had continued to buy goods from the Hayes Stores Company.
    ■ Jim Wright was a witness for the defendant. According to his testimony, C. L. Beauchamp sold out to the Colonial Investment Company about the 28th day of April, 1922. The witness had been working for Beau-champ, and continued to work for the Colonial Investment Company. He worked for that company until some time in August. Beauchamp never had anything to do with the business after he sold it.
    Ed Joiner was also a witness for the defendant. He worked for Beauchamp until he sold his business to the Colonial Investment Company, and worked for that company after it purchased the business. Joiner was first permitted to testify that the Colonial Investment Company gave him an order for certain merchandise to the Hayes Stores Company on the 5th of May, 1922, and that he got the merchandise in question from T. J. Hart. Subsequently this testimony was excluded from the jury because the goods purchased by Joiner for the Colonial Investment Company could not be identified as part of the account sued on.
    The jury returned a verdict in favor of the plaintiff for $212.62, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Lewis Rhoton and X. O. PUndall, for appellant.

      Price Shofner, for appellee.
   Hart, J.,

(after stating the facts). It is insisted that the court erred in excluding from the jury the testimony of Ed Joiner to the effect that he had purchased certain merchandise on the 5th of May,’ 1922, from the Hayes Stores Company on an order sent by the Colonial Investment Company. The court excluded the testimony on the ground that the defendant could not identify the goods purchased1 as part of the account, sued on. This did not make any difference. It is true, as contended by counsel for appellee, that testimony collateral to the main issue in a case cannot be introduced; but we do not think that that rule has any application here. According to the testimony of T. J. Hart, who was the manager of the Hayes Stores Company, he did not know anything about the Colonial Investment Company having purchased the business of C. L. Beauchamp until the 24th day of June, 1922. The goods sold before that date were sold on the credit of C. L. Beauchamp, and were charged to him. The testimony of Joiner to the effect that he bought goods from Hart on the 5th of May, 1922, on an order from the Colonial Investment Company,' tended to contradict the testimony of Hart which we have just referred to above.

The jury might have found from the testimony of Joiner, which was excluded from it, that Hart was mistaken when he said that he did not know anything about the Colonial Investment Company having purchased the business of Beauchamp and commencing to trade with the Hayes Stores Company, until the 24th day of June, 1922. ’

It will be noted that Joiner testified that he got the goods from Mr. Hart himself on an order of the Colonial Investment Company on the 5th of May, 1922. If he did this, Hart would know from the transaction, at least, that the Colonial Investment Company was trading with him, and the testimony would tend to contradict that given by Mr. Hart.

We cannot know what credence the jury would have given to the testimony, and, as the jury is the exclusive judge of the credibility of the witnesses, it was necessarily prejudicial to the rights of the defendant to exclude testimony which was competent and tended to establish the defense of the defendant.

Therefore the judgment' will be reversed, and the cause will be remanded for a new trial.


text:
    Young v. Knox.
    Opinion delivered June 23, 1924.
    1. Limitation op actions — religious societies. — The statute of limitations as to real estate is one of repose and intended to quiet titles, and it operates in favor of or against religious societies, as well as natural persons or private corporations.
    2. Adverse possession — character.—The possession which will bar the right of a former owner of land must be an open, visible, continuous and exclusive possession with claim of title, so that parties seeking information upon the subject might find that the property was not held under permission of any one, but adversely to every one.
    3. Appeal and error — conclusiveness op chancellor’s finding.— The decisions of á chancellor on questions of fact will be upheld, unless against the clear preponderance of the evidence.
    4. Adverse possession — evidence.—In a suit by the elders of a church congregation to enjoin one claiming under a deed from another church from interfering with plaintiffs’ possession, evidence of plaintiffs’ adverse possession held to sustain a. decree quieting title in plaintiffs as trustees.
    •5. Religious societies — parties.—Under Crawford & Moses’ Dig., § 8638, authorizing trustees of a religious society to defend and prosecute suits at law and in equity relating to church property, elders of a church congregation authorized to represent it . were proper parties to sue to enjoin interference with their possession of a church building and to cancel a deed as a cloud upon the title to such property.
    . Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Appellees brought this suit in equity against appellant to enjoin him for interfering with their possession of a church building in Paragould, Arkansas, and to cancel a deed executed to him to said property as a cloud upon their title.
    The defendant claimed the legal title to the property and the right of possession under his deed.
    A. A. Knox, G. L. McDonald and John Rosson brought the suit for appellees, and were witnesses in the case. According to their testimony, they represented the local congregation of the Cumberland Presbyterian Church at Paragould, Arkansas, and were elders in said church. In 1906 the Cumberland Presbyterian and the Presbyterian Church U. S. A. formed a union. One hundred and six members of the General Assembly of the 'Cumberland Presbyterian Church declined to form the union, and conducted a general assembly at a separate place. The local congregation of the Cumberland Presbyterian Church at Paragould, Arkansas, refused to enter said union, and continued to occupy their church property for religious purposes. They had preaching in it about one-half of the time, and Sunday-school' every Sunday. The congregation continued to hold the exclusive possession of said church from the time they refused to recognize the union in 1906 until John Young attempted to take possession of the property in 1923. No other church organization attempted to control said church property during this time. The local congregation of the Cumberland Presbyterian Church, through its elders, has claimed title to said property since 1906. They have belonged to a synod of the Cumberland Presbyterian Church during all of this time.
    W. E. Spence and ¡W. S. Ellis, two witnesses for appellant, testified that the local congregation of the ■Cumberland Presbyterian Church at Paragould had occupied the church property in question since the union of the Cumberland Presbyterian with the Presbyterian Church U. S. A. in 1906; hut that such use and occupation by said congregation had been permissive merely, •and not under any claim of right. They testified that A. A. Knox admitted, in 1914, that the title to said property was in the Presbyterian Church IT. S. A., but insisted .that, as a matter of right, the congregation of the Cumberland Presbyterian Church ought to have it.
    A collector for a street improvement district testified that Knox and Bosson told him that they would not pay the street improvement tax because the property did not belong to them.
    Appellant produced a deed from the trustees of the Presbyterian Church IT. S. A. to the property. He testified' that he redeemed the property from the sale for paving taxes by paying about $769. A deed to the property was executed to him on the 11th day of April, 1923.
    Knox denied that he told the collector of the paving district that the Cumberland Presbyterian Church of Paragould did not claim the property. He admits that he told the said collector that the Presbyterian Church U. S. A. had a claim of title against the property, and that they were not going to pay the paving taxes until the matter was settled. He denied that he ever told any one that the Cumberland Presbyterian Church was not claiming the property. ■ He admits that he had a conversation with Dr. Ellis and Mr. Spence, and' admitted to them that the Presbyterian Church IT. S. A. had the legal or paper title to the property, but told them that the Cumberland Presbyterian Church was holding possession of the property and claimed it as its own.
    The chancellor found that appellees had acquired title to the church property in question by seven years’ adverse possession; that the deed to appellant constitutes a cloud on the title of appellees, and should be canceled.
    A decree was entered accordingly, and' the case is here on appeal.

      D. G. Beauchamp and Jeff Bratton, for appellant.
    1. Appellees, as elders and trustees of the local congregation of the reorganized Cumberland Presbyterian Church, cannot acquire title nor hold title to the property in question, since they admit that their present church organization is identically the same as it was prior to the reunion of 1906. 96 Ark.' 117; 34 Cyc. 1171; 32 Atl. 747.
    2. .Even if appellees could claim title to the property, and if they were proper parties, they stand in the attitude of grantors or dedicators remaining in possession, and as such cannot acquire title as against their grantee by merely remaining in possession of the property conveyed. A grantor remaining in possession is a tenant at the will of the grantee, or a trustee for the grantee. 2 C. J. 143; 69 Ark. 562; 2 C. J. 144; 85 Ark. 520.
    3. The possession held by appellees was permissive, and could never ripen into title by adverse possession. 2 C. J. 131; 42 Ark. 121; 84 Ark. 140.
    4. Appellees’ possession was not under claim of title; it was not hostile; it was not notorious, but was held while they all the time admitted that the Prebysterian Church TJ. S. A., since 1906, was the legal owner. Therefore their possession was not adverse and could not ripen into title. 42 Ark. 121; 2 C. J. 122; 104 Ark. 641.

      Block & Kirsch, for appellees.
    The language quoted by appellanffrom 34 Cyc. 1171 does not support his challenge of appellees’ capacity to sue. Moreover, the provision of the 1920 digust of the laws of the Cumberland Presbyterian Church to the effect that it was the sense of the assembly that the rightful ownership of, and title to, church property belonging to a disorganized congregation, or of an abandoned church property, was, and should be, in the presbytery in whose bounds it was located, provided there were no provisions in the deed of conveyance directing what should become of the property when it ceased to be used for church property, can be susceptible to no other construction than that the ownership, where a congregation is not disorganized', or church property is not abandoned, is in the trustees, and not in the presbytery. Appellees alone have capacity to bring this suit. 26 R. C. L. 1271; 34 Cyc. 1171; 115 S. W. 684; 116 S. W. 360; 245 111. 74; 114 Ark. 376; 32 Atl. 747.
    2. There is no force in appellant’s contention that appellees stand in the attitude of grantors or dedicators, since this is not the old Cumberland Presbyterian Church which was merged into the Presbyterian Church by the union and reunion, but a new and distinct entity, reorganized after the union and reunion; but, even if the rule evoked were applicable, “the Presbyterian Church IT. S. A. had actual knowledge of this adverse possession, or that appellees’ occupancy had been so inconsistent with the presumption of possession as to irnphte knowledge to its trustees of that hostility.” 114 Ark. 376, at p. 384.
    3. Mere knowledge that the Presbyterian Church U. S. A. made claim to the property would not' in itself make appellees’' possession permissive, or prevent their claim from being hostile and adverse, if they were in fact claiming the title to the property. 144 Ark. 212.
    4. As establishing’ title in appellees bv adverse possession, see 132 Ark. 455; 27 L. R. A. (N. S.) 388.
   Hart, J.,

(after stating the facts). The title of appellees, who are plaintiffs in the court below, is founded upon the adverse possession of themselves and the local congregation of the Cumberland Presbyterian Church at Paragould, Arkansas, for. a period of more than seven years. The statute of limitations as to real estate is founded upon public policy. It is a statute of repose, and intended to quiet titles, and operates in favor of or against religious societies as "well as natural persons or private corporations.

This court has held that the trustees of a church or (¡religious society may lose title to ¡real property by ,adverse possession. Gee v. Hatley, 114 Ark. 376. It is equally well settled that the trustees of a religious society may acquire title to real property by adverse possession. Camp v. Camp (Conn.) 13 Am. Dec. 60; Dangerfield v. Williams, 26 App. D. C. 508; Curd v. Wallace (Ky.) 7 Dana 190, 32 Am. Dec. 85; University of Maryland v. Calvary M. E. Church South (Md.), 65 Atl. 398; Rehoboth v. Carpenter (Mass.), 23 Pick. 131; Reformed Church v. Schoolcraft, 65 N. Y. 134; Society for Propagation of Gospel v. Sharon, 28 Vt. 603; and Davis v. Owen (Va.), 13 L. R. A. (N. S.) 728.

The decisions of the courts cited above, ■ as well as many other decisions from this court, have determined the character of the possession which will bar the right of the former owner to recover real property. It must be an open, visible, continuous and exclusive possession with claim of title, -so that parties seeking information upon the- subject might find out that the property was not held under the permission of any one, but adversely to every one.

Tested by this familiar and well established rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence. It is the uniform rule of this court to uphold the decision of a chancellor upon a question of fact, unless it is against the clear preponderance of the evidence.

According to the witnesses for appellees, they were elders in the Cumberland Presbyterian Church at Paragould, Arkansas, and were trustees for it. They were present when the G-eneral Assembly of the Cumberland Presbyterian Church and the Presbyterian Church TJ. S. A. voted to unite. One hundred and six members of the General Assembly of the Cumberland Presbyterian Church dissented, and immediately held an assembly of the Cumberland Presbyterian Church. The local congregation of the Cumberland Presbyterian Church at Paragould immediately joined the dissenters, and continued to occupy their local church. They say that they had exclusive possession of it, and have never permitted any one connected with the Presbyterian Church TJ. S. A. to exercise any control or dominion whatever over it.

It appears that they recognized that the legal title to the church property was in the Presbyterian Church TJ. S. A. under the decision of this court in Sanders v. Baggerly, 96 Ark. 117; but they denied that this church had any rightful title to the property. In other words, instead of their occupancy being permissive, it was hostile to the rights of the Presbyterian Church TJ. S. A. They had the exclusive, continuous and hostile possession of the church for more than seven years, according to their testimony, and acquired title to the church property by adverse possession.

It is true that their testimony was contradicted by two members of the Presbyterian Church TJ. S. A. and by the collector of a paving district; but, as above ■stated, it cannot be said that the testimony of these witnesses shows that the finding of the chancellor is against the preponderance of the evidence.

It is also contended that appellees are not the proper parties to maintain this suit. Knox, itosson and1 McDonald all stated that they were elders in the church and represented the local congregation of the Cumberland Presbyterian Church at Paragould.

Our statute provides that the trustee or trustees for the time being of any religious society shall have the same power to defend and prosecute suits at law or in equity, and to do all other acts for the protection, improvement and preservation of • said1 property, as individuals may do in relation to their individual property. Crawford & Moses’ Digest, § 8638.

In the case of Gee v. Hatley, 114 Ark. 376, the trustees and elders of a Presbyterian Church brought suit to recover possession of a part of the church property, and it was held that they might maintain the action.

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Collatt v. State.
    Opinion delivered June 23, 1924.
    1. Criminal law — motion for new trial — time for filing. — A motion for new trial could be made at a term subsequent to that at which the verdict was rendered, which sentence was not pronounced until such subsequent term, under Crawford & Moses’ Dig., § 3218.
    2. Criminal law — sentence at subsequent term. — Under Crawford & Moses’ Dig., § 3218, the court may sentence an accused at a term subsequent to that at which the verdict was rendered.
    3. Criminal law — time for filing motion for new trial. — Where sentence was not pronounced at the term at which the verdict was rendered, defendant may file his motion for new trial at a subsequent term, provided he does so before the sentence is rendered.
    Appeal from Saline Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      J. W. Westbrook, for appellant.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Smith, J.

Appellant was convicted at the September term, 1923, of the Saline Circuit Court. For some reason, which does not appear from the transcript which appellant has lodged with this court, he was not sentenced until the March, 1924, term of the court. At the March term he filed a motion .praying his discharge from custody. In this motion he alleged that on Thursday, September 19, 1923, at the September term of the court, he had been convicted of grand larceny upon his plea of not guilty, but sentence was not imposed at that term, and that he had not been sentenced, wherefore he prayed his discharge. The court overruled this motion, and sentenced the appellant to a term of imprisonment in the State Penitentiary. Thereafter appellant filed a motion for' a new trial, which the court overruled, in which various errors were assigned1, and, among others, that the court had erred in overruling his motion that he be discharged because the court had not sentenced him at the term of the court at which he had been convicted.

The action of the court in overruling the motion for a new trial is defended upon the grounds, (1) that it should have been filed at the term at which the conviction was had, and (2) that it should have been filed in any event before sentence was pronounced.

In support of the first proposition the cases of Thomas v. State, 136 Ark. 290, and Corning v. Thompson, 113 Ark. 237, are cited. In those cases it was held that an application for a new trial could not be made at a term subsequent to that at which the verdict was rendered and the judgment entered. Those cases are not in point here, for the reason that the judgment was not rendered at the term of the court at which the verdict was returned.

Counsel for appellant is mistaken in assuming that the court was without power to sentence appellant at the March term of the court. By §. 3218, C. & M. Digest, it is provided that “the application for a new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment.”

It will be observed that this section of the statute does not define the conditions or reasons for which the sentence may be postponed, but it does provide that the application for a new trial must be made at the same term at which the verdict is rendered, unless sentence is postponed to another term, in which case the application for a new trial may be made at any time before judgment.

In other words, if, for any reason — through inadvertence or otherwise — the court fails to sentence a defendant at the term at which he was convicted, he does not go acquitted on that account, but he may be sentenced at the ensuing term. If the sentence is postponed beyond the term at which the conviction was had, the defendant does not lose his right to file a motion for a new trial, and this he may do at the ensuing term, provided he makes the application before judgment.

Here the defendant not only delayed the filing of his motion for a new trial beyond the term at which he was convicted, but he did not file the motion until after he had been sentenced, and, as this is beyond the time allowed by law for that purpose, the errors assigned therein which related to the sufficiency and competency of the evidence to support the verdict are not presented for review.

The indictment sufficiently charges the offense of which defendant was convicted, and, as no error appears upon the face of the record, the judgment must be affirmed, and it is so ordered.


text:
    Stout Lumber Company v. Treadwell.
    Opinion delivered June 23, 1924.
    1. Adverse possession — payment of takes in wrong county.— Under Crawford & Moses’ Dig., § 6943, providing that unimproved and uninclosed land shall be held to be in the possession of persons paying taxes thereon, if he have color of title thereto, for seven consecutive years, it is insufficient to pay the taxes in a county in which the land does not lie.
    2. Quieting title — title of claimant.— One seeking to cancel another’s deed as a cloud upon his title must show title in himself in order to obtain relief.
    Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Gaughan & Sifford, for appellant.
    A tax deed is prima facie evidence of title. Section 10109, C. & M. Digest; 130 Ark. 424; 101 Ark. 301. Payment of taxes for seven years -under color of title makes out a prima facie title. 131 Ark. 83. Unimproved and nninclosed 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. 'Section 6943, C. & M. Digest; 84 Ark. 1; 71 Ark. 390; 92 Ark'. 121; 76 Ark. 447; 80 Ark. 82. A tax deed is good color of title, even though based on a void tax sale. 70 Ark. 487; 48 Ark. 187; 47 Ark. 528; 84 Ark. 320; 105 Ark. 646; Bouvier’s Law Dictionary, Rawle’s Third Revision, vol. 1, p. 527; Words & Phrases (First Series), vol. 2, p. 1264. It is not necessary that it be recorded, as an unrecorded deed is good color of title. 100 Ark. 582. The fact that the deed fails to locate the county or locates the wrong county would not vitiate the deed of prevent it being color of title, provided the correct description is given. 83 Ark. 196; 245 S. W. 802.

      Bcmaher & Banaher, for appellee. •
    The tax deed of appellants was not executed substantially in accordance with the statute, and was therefore void. 132 U. S. 239; 9 Wheat. 541; 3 T. B. Monroe 161; 18 Kansas 223; 6 Kansas 65; 85 Mo. 526; 27 Minn. 259; 29 Wis. 152; 6 Colo. 314; 23 Tex. 36. Land shall be deemed and held to be in the possession of the person who pays the taxes thereon. 83 Ark. 520. Erronepus payment of taxes in one county does not discharge a valid assessment in another. 103 Ark. 371; 37 Cyc. 1159.
   Smith, J.

The appellant was the plaintiff below, and, for its cause of action, alleged that it was the owner of the whole of section 33, township 10 south, range 12 west, including that part of said section situated on the east side of Moro Creek, which was particularly described, and which embraced 54.52 acres. Appellant deraigns its title beginning with a tax deed executed1 July 6, 1900, to J. J. Youngblood, which title was acquired by mesne conveyances, and it is stipulated that appellant and its grantors had paid the taxes continnonsly for more than twenty years.

It appears that Moro Creek runs through section 33 and forms the boundary between Dallas and Cleveland counties. All of the section is situated in Dallas County except the 54.52 acres in controversy, which are in Cleveland County. It appears, however, that the entire section was assessed for taxation in Dallas County, and the taxes on the whole of the section have been paid in that county, and no taxes were paid by appellant in Cleveland County.

The records of Cleveland County were destroyed by fire, but there is a record of that county remaining which shows that the land was sold by the commissioner in the overdue tax case to the State, and on July 15, 1921, the Commissioner of State Lands conveyed the 54.52 acres lying in Cleveland County to appellees. A second deed was made by the Commissioner of State Lands to appellees on September 11, 1922, to correct an error in the former deed.

It appears to be mutually conceded that both the tax deed through which appellant derives its claim of title and the sale by the commissioner under the overdue tax decree were void; but appellant insists that this tax deed was at least color of title, and that, by the subsequent continuous payment of taxes for a period of more than seven years, its title has been perfected!

If it be conceded — and we do not decide — that a tax deed, regular on its face, issued by the clerk of one county, conveying the whole of a section for the nonpayment of taxes assessed in that county, could constitute color of title to a part of said section lying in another county, it does not follow that appellant’s title has ripened by the payment of taxes on the land in question. This is true because the portion of the section in litigation lies in Cleveland County, and the taxes were paid in Dallas County.

Section 6943, C. & M. Digest, which provides that unimproved and uninclosed land shall be deemed and held to be in the possession of the person who pays the taxes thereon, if he have color of title thereto, for at least seven years in succession, contemplates that the payment shall be made in the county where the land is situated and where the record of such payments should be properly kept, and it is not sufficient, under this statute, to pay the taxes in a county in which the land' does not lie. Such is the effect of the decision of this court in the case of Hay v. Nickey Bros., 142 Ark. 398, where it was said: “It may be conceded that the tax deed under which appellees claim title is void for the reason that the forfeiture and sale took place in Bradley County, whereas the lands are situated in Calhoun County. Toby v. Haggarty, 32 Ark. 370. It may likewise be conceded1 that, for the same reason, the subsequent assessments of the land, and payments of taxes in Bradley County by the appellees and their privies in title, did not give appellees title by limitation under § 5057 of Kirby’s Digest.”

It is true the court denied the relief of cancellation of the title asserted in that case, as the result of the tax payments, but this was done because the parties asking cancellation were barred by laches.

Laches cannot be asserted' here, because appellees only acquired their title July 15, 1921, and the suit to cancel it was begun August 9, 1921.

It is insisted that the deed to appellees conveyed no title because of the provisions of act 671, General Acts 1921, page 728, whereby the State relinquished the title to persons who had paid taxes for twenty years or more. We need not consider the' effect of this statute on appellees’ title, as they are asking no affirmative relief. Appellant — plaintiff below — must show title in itself to obtain the relief prayed, and this it has not done for the reasons herein stated.

The complaint was dismissed as being without equity, and that decree is affirmed.


author: McCulloch, C. J.

text:
    Norman v. State.
    Opinion delivered June 30, 1924.
    1. Assault and battery- — evidence.—Evidence held to sustain a conviction of aggravated assault.
    2. Criminal law — opinion of witness.— In a prosecution for assault with intent to kill, where a witness was asked whether he could have recognized the prosecuting witness from defendant’s car, his answer that he did recognize such witness from a position beyond defendant’s car was admissible.
    3. Homicide — erroneous instruction harmless when — In a prosecution for 'assault with intent to kill, where the jury found' ’ defendant guilty of an aggravated assault, an instruction that “the killing being proved, the burden of showing circumstances of ' mitigation * * * shall devolve upon the accused,” though erroneous, was harmless, in view of the verdict of the jury.
    Appeal from Yell Circuit Court, Danville District; J. T. Bullock, Judge;
    affirmed.
    Hays, Priddy é Hays, for appellant.

      J. 8. Ulley, Attorney General, and John L. Carter, Assistant,' for appellee.
   McCulloch, C. J.

Appellant was indicted for the crime of assault with intent- to kill, alleged to have ¡been committed by shooting Lee Stewart, a deputy sheriff of Yell County. On the trial of the case appellant was convicted of aggravated assault, and his punishment fixed at a fine of one thousand dollars and imprisonment in the county jail for six months.

The shooting occurred in the early part of. the niglit of October 26, 1923, on one of the streets of the town of Plai'nview, in Yell County. The State proved that appellant fired the ’ shot at Stewart, which took effect in his leg, or thigh, and inflicted a dangerous wound, and the evidence was sufficient to support a verdict for the highr est offense charged in the indictment.

■' A traveling salesman named Phrks had the -cushions stolen out of his 'automobile, and he applied to Stewart, the deputy sheriff, to assist him in searching for the lost articles and apprehending the guilty party. Suspicion rested on a certain young man who lived in the county near Piainview, and Parks and Stewart went, out in a Ford oar to the place where the young man lived. Not finding him 'or the stolen cushions, they started on the return trip to town, and, after chasing another car,' and, being eluded by it, Stewart got out to stop, some of the cars that were passing along the road. It was then after nightfall, when appellant’s father cáme along in a' car, and Stewart waved a flashlight to him to stop, but the car passed on, and appellant’s father called Stewart’s name and cried out, “Look out, there!” and passed on. Another car passed shortly afterwards. Stewart and Parks went on to town and went by the house of appellant’s father to apologizé for having endeavored" to stop his oar. They called out to appellant’s father, but got no response, and drove around another street, and there met appellant in his (appellant’s) car. According to the State’s testimony, appellant drove over to the wrong side of the road, and, when the cars got nearly together, both of- them stopped. Stewart and Parks both testified that appellant got out of his car with his shotgun in his hand, and that they both tried to explain to him the circumstances about attempting to stop his father’s car, but that appellant refused to be pacified, and said to Stewart, “I am going to kifi you; I will learn you to stay off of our business and let us alone.” ’They testified that .Stewart again attempted to explain the matter to appellant, and that, as appellant presented his gun, he (Stewart) took hold of the barrel and pulled it down, and that at that time the gun fired and the load took effect in Stewart’s thigh. Stewart fell to the ground, and spectators came up, having heard the noise, and the witnesses who came up at that time testified that appellant was in a rage, and cursed and abused Stewart. One witness testified that, when he came up and saw Stewart lying on the ground, he said, “Let’s get-'1 the -man out of the dirt, not let him die in the dirt, ’ ’ and that appellant exclaimed, ‘ ‘Let him die like a Gf- d:...... ’ ■ dog. The Gr-- d-- old grayheaded son of a bitch ought to be dead and in Hell years ago. ”

Appellant testified that lie was driving behind his father’s.car when the attempt was made to stop the car by Stewart and Parks ont on the road, and that, when he met Parks and Stewart’s car in town, he thought an attempt was,being made to hold him up, and that he did not intend to shoot Stewart. He testified that Stewart, after getting out of the car, grabbed hold of the gun-barrel 'and jerked it down, and that the gun went off accidentally. He said that he did not pull the trigger. This conflict in the testimony was settled by the verdict of the jury, and there was abundance of evidence to support the verdict.

According to the testimony adduced by the State, the shooting of Stewart by appellant was a most aggravated and unjustifiable offense; that, in a fit of anger, he shot a man who was attempting, in a polite and earnest way, to apologize for an apparent discourtesy to appellant’s father.

Error is assigned in permitting witness Westlake to testify concerning the ability of appellant to recognize Stewart at the distance from one car to another. West-lake was one of the witnesses who came up immediately after the shooting. The testimony showed that the engines of both cars were running and the lights burning. After describing the scene and stating the distance, the witness was asked to state: “Prom the condition of the lights there, could a person have seen and recognized him from Bill Norman’s car to where he was?,” After objection was made, the question was changed to this: “Do you know whether a man could have seen him (Stewart) from Bill Norman’s car?” The witness answered, “I recognized Bill Norman beyond Lee Stewart’s car, yes. What I mean, I was behind Bill Norman’s car when I came down there — his car in here. When I came out on this side I could recognize him over there. ’ ’ We see no valid objection to the competency of this testimony. It was impossible for the witness to describe to the jury the condition of the lights on the car, and there was no other way to carry to the jury the information whether or not it was possible or probable that appellant recognized Stewart when the cars came close together and stopped. The testimony tended to contradict appellant in his statement that he did not recognize Stewart, and that he thought the men in the car were trying to hold him up.

Another assignment of error relates to the action of the court in giving the following instruction:

“The tilling being proved, the burden of showing the circumstances of mitigation, or to justify or to excuse the homicide, shall devolve upon the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense, if death had resulted, would amount to no more than manslaughter, or that the accused was justified.”

The court gave instructions properly defining the crime of assault with intent to kill, and, among other things, told the jury that, in order to make out, that offense, it was essential that, if death had resulted from the assault, it would have constituted murder. The court then proceeded to charge the jury as to the law applicable to all degrees of homicide, and gave the.instruction, set forth above.

Appellant relies on the case of Parsley v. State, 148 Ark. 518, where we decided that the statute, substantially in the language of the instruction above, had no application on a trial for offenses other than homicide. That case was one where the accused was convicted of the crime of assault with intent to kill, and we held that the instruction was not only erroneous but was prejudicial. In tire present case the appellant was not convicted of the higher offense involving a specific intent to kill, and therefore there could be no prejudice in giving the instruction. The assault and the effect thereof were abundantly established by testimony adduced by the State, and it devolved upon the appellant to show circumstances of mitigation or justification. The reference in the instructions to a homicide could have had no prejudicial effect, for it was not contended that death resulted; on the contrary, Stewart, the injured party, was introduced and testified as a witness. It being obvious that the instruction could have had no prejudicial effect, its inapplicability to the facts of the case does not call for a reversal.

We find no prejudicial error in the record, and the judgment is therefore affirmed.


text:
    Wright v. Raymer.
    Opinion delivered June 30, 1924.
    Animals — stock-law district — annexation of contiguous territory. — Crawford & Moses’ Dig., § 330, authorizing annexation of contiguous territory to stock-law districts organized under the general law, did not authorize the annexation of contiguous territory to a district created by Sp. Acts 1921, p. 866.
    Appeal from Van Burén Circuit Court; J. M. Shinn, Judge;
    reversed.

      J. F. Koone, for appellant.

      Karl. Greenh.aw and Garner Fraser, for appellee.
   McCulloch, C. J.

The General Assembly of the year 1921 enacted a special statute creating a stock-law district, composed of seven townships, in Van Burén County. Special Acts 1921, p. 866. At the nest session of the Legislature a portion of a certain other township was added. ' The statute prohibits the running at large in the district of any “horses, mules, cattle, sheep, goats, hogs, asses, or any domestic animals,” and declares á violation of the statute to be a misdemeanor punishable by filíe of not less than one dollar and not over twenty-five dollars for each offense. The statute also provides that any person violating the statute shall be liable “to any person aggrieved for double amount of damages caused by the’trespass of any such animals enumerated.”

Appellees are residents and qualified electors .of another township in Van Burén County (Sulphur Springs Township), which lies adjoining the township composing the district created as aforesaid, and they are seeking to have said township annexed to the district pursuant to the general statute authorizing the creation of the stock-law district and annexation of territory thereto. This statute (Crawford & Moses’ Digest, § 321) was enacted by the General Assembly of 1915, and was subsequently amended in particulars not important to the present discussion. It provides for the creation of such districts on petition of twenty-five per cent, of the qualified electors of three or more townships in a body in any county, for the purpose of restraining the running at large of “horses, mules, asses, cattle, goats, swine and sheep, or any two or more of the said animals, or the male species thereof.” Section 10 of the act of 1915 (Crawford & Moses’ Digest, § 330), under which the annexation in the present case is sought, reads as follows:

“Whenever three or more townships shall have been formed into a unit for the purpose of restraining any stock as herein enumerated, and shall have been perfected in the way and manner as herein provided, then any other township, or any group - of townships, that-would be a contiguous whole to the unit thus formed, may be attached to and become a part of said unit in the same'way and manner as herein provided for in the first instance, by merely stating in the petition, in addition to the other requirements, that the petitioners wish their township or townships attached to said unit, naming the townships therein.”

The sole question presented for decision in this ease is whether or not there is authority under the general statute, supra, for the annexation of contiguous territory to the district created by the special statute hereinbefore cited. -Our conclusion is that there is no such authority. An examination of the section of the general statute authorizing the annexation of territory shows clearly that it applies only to districts organized under that statute. It reads that any other contiguous township may be joined to a district composed of three or more townships “formed into a unit.for the purpose of restraining any stock as herein enumerated and shall have been perfected in the way and manner as herein provided. ” It is thus seen that the language only refers to such townships as have been organized under that statute, and contains no authority to add territory to a district formed under any other statute.

Another reason why the statute cannot be'held applicable to the annexation of territory to the district created by special statute is that the two statutes are wholly different in substance. The general statute relates to the restraining of running at large of stock, not only of the same kind enumerated in the special statute, but also to any two or more of them, or only to the male species thereof, whereas the special statute prohibits the running at large of all of the animals enumerated and of both sexes of such animals. The special statute makes it a criminal offense to violate it and prescribes a penalty, and also provides for double damages, whereas the general statute provides no penalty ánd only provides for liability for single damages. It follows that there is no authority under the general statute to add territory to the special district operating under the law prescribing penalties and liabilities not embraced in the statute under which the annexation of the territory was authorized.

The circuit court erred in holding that there was statutory authority for the annexation of territory in this instance. So the judgment is reversed, and the cause remanded with directions to dismiss the petition of appellees.