rights acquired while it tied the hands of the other municipality from exercising control over these streets. The case does not call for an estoppel on this ground against North Little Rock. The decree in the court below allowed the street railway company 60 days to dispose of or remove the rails, cross-ties, and other material placed by it on the streets, and that is as favorable as it can ask on this score.

4. Deciding that no rights can be sustained under the ordinance of August 10, 1902, does not dispose of any rights which the street car company may have under the ordinance passed June 25, 1902. It is true that the ordinance of August 10th repealed the conditions precedent therein to its vesting at once, and attempted to vest the franchise forthwith; but the view the court takes of that ordinance renders that action entirely nugatory, and leaves in force whatever rights the street car company may have had when the jurisdiction of the municipalities over the Eighth Ward would have been changed but for the intervention of the injunction. The appellee seeks to avoid that proposition by invoking the doctrine of relation, and contends that the final act of annexation was carried back to the date the election was ordered, June 15, 1903. That contention overlooks the plain provision of the act under which the proceedings were had. It declares that upon the declaration of the vote favorable to annexation by the council, and entering it upon the record of the council, such actions constitute the change of jurisdiction. Those acts raise the new flag over the territory annexed. The obtaining of the consent of the county court of Pulaski county to the use of the free bridge before the franchise could be enjoyed was clearly a condition precedent to its vesting, and was a reasonable and enforceable condition precedent. Joyce on Electric Law, §§ 187, 352, and 358, and authorities cited in notes. This and the other conditions mentioned in the ordinances would have to be complied with within a reasonable time. In determining reasonable time, the subjectmatter and all the circumstances are to be considered, as there can never be a fixed rule on such a subject. In this case the ordinance was passed June 28, 1903, and the election was held July 21st; and the result would have at once been declared, and the jurisdiction changed, but for the injunction. The rights of North Little Rock must be determined as of the date when it should have acquired jurisdiction. That date was less than one month after the passage of the ordinance. Therefore North Little Rock assumed jurisdiction over the Eighth Ward, subject to a valid ordinance granting a franchise to certain streets therein, subject to conditions precedent to be performed in a reasonable time from June 25, 1903. The subsequent proceedings did not alter that

status, for the jurisdiction when assumed, in February, 1904, was, so far as these parties were concerned, as of date July 21, 1903, or as soon thereafter as the vote could be declared. The rights acquired after that date should be cut off, and those acquired prior thereto given full force.

The court is of opinion that one month was not reasonable time to allow the street car company to comply with the conditions precedent, and it follows therefore that the street car company still has a reasonable time under the ordinance of June 25, 1903, to comply with the conditions precedent.

The decree of the chancellor canceling and annulling the ordinance of June 25, 1903, is erroneous, and the same is hereby reversed. The decree canceling and annulling the ordinance of August 10, 1903, and all other matters therein, except as above stated, are affirmed.

BATTLE, J. (dissenting). Judge Dillon says: "Public streets. squares, and commons, unless there be some special restriction when the same are dedicated or acquired, are for public use; and the use is none the less for the public at large, as distinguished from the municipality, because they are situated within the limits of the latter, and because the Legislature may have given the supervision, control, and regulation of them to the local authorities. The Legislature of the state represents the public at large, and has, in the absence of special constitutional restraint, and subject to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places." He further says: "Whether the fee of the street be in the municipality in trust for the public use, or in the adjoining proprietor, it is in either case of the essence of the street that it is public, and hence, as we have already shown, under the paramount control of the Legislature, as the representative of the public. Streets do not belong to the city or town within which they are situated, even although acquired by the exercise of eminent domain, and the damages paid out of the corporation treasury. The authority of municipalities over streets they derive, as they derive all their other powers, from the Legislaturefrom charter or statute. The fundamental idea of a street is not only that it is public for all purposes of free and unobstructed passage, which is its chief and primary, but by no means sole, use." 2 Dillon on Municipal Corporations, §§ 656, 683. "The city corporation, as freeholders of the streets and highways in trust for public use, is but an agent of the state. Any control which it exercises over them, or the power of regulating their use, is a mere public or governmental power delegated by the state, subject to its control and direction, and to be exercised in strict subordination to its will. The

corporation as such has no franchise in connection with the use of the streets for the transportation of passengers." People v. Kerr, 27 N. Y. 213; City of Chicago v. Rumsey, 87 Ill. 348, 355; State ex rel. v. Madison St. Ry., 72 Wis. 617, 619, 40 N. W. 487, 1 L. R. A. 771; Stanly v. City of Davenport, 54 Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am. Rep. 216. Neither the state nor cities have any proprietary interest in the street. The public they represent has no interest in the soil. Reichert v. Railway, 51 Ark. 491, 497, 11 S. W. 696, 5 L. R. A. 183. The power and control either has over the same is governmental. When they grant an easement over the street, not common to the public at large, they do so not because they have any proprietary interest in the land, but because of their control over the streets in a governmental capacity. San Francisco v. Spring Valley Waterworks, 48 Cal. 493, 529; City of Detroit v. Detroit City Ry. (C. C.) 56 Fed. 867, 874; City Ry. v. Citizens' Ry., 166 U. S. 557, 563, 17 Sup. Ct. 653, 41 L. Ed. 1114.

Under the statutes of this state, city councils have the care, supervision, and control of all the public highways, streets, and alleys within the city, and may grant an exclusive privilege of the streets of the city for street railway purposes for such term of years as they may agree upon. Kirby's Dig. §§ 5530, 5448. This power extends to all the streets within the city, and continues so long as they remain in the city, regardless of the time they have been in or may remain in the city. It is exclusively governmental. The streets in question in this case, together with the care, supervision, control, and power over the same, remained in the city of Little Rock until the 22d day of February, 1904, when they became a part of the city of North Little Rock, according to the act entitled "An act to amend the laws in relation to municipal corporations," approved March 16, 1903 (Acts 1903, p. 148). The ordinances in question were passed by the city council of Little Rock while the streets of which they were the subjects of legislation were in that city, and within its territorial jurisdiction; and, as an incident to that jurisdiction, it had the power to pass them. Appellant accepted them, and undertook, by the expenditure of considerable sums of money and labor, to construct a railway over the streets according to the terms thereof. The ordinance thereby became a valid contract, binding upon the public, the city of Little Rock and of North Little Rock. State ex rel. v. Madison St. Ry., 72 Wis. 617, 619, 40 N. W. 487, 1 L. R. A. 771; City Ry. v. Citizens' Ry., 166 U. S. 557, 563, 17 Sup. Ct. 563, 41 L. Ed. 1114: Elliott on Roads & Streets, §§ 741, 742; 27 Am. & Eng. Ency, of Law (2d Ed.) 15.

I think the ordinances should be sustained.

WOOD, J., concurs in this opinion.

PERRY et ux. v. SADLER et al. (Supreme Court of Arkansas. June 17, 1905.) 1. REFORMATION OF INSTRUMENTS-MISTAKE. Where defendant agreed to convey to plain tiff a certain tract of land by name, but the conveyance by mistake failed to include a small strip of land which the parties regarded as a part of the tract intended to be conveyed, and which was contained in the same inclosure, plaintiff was entitled to have the deed reformed so as to include this strip. 2. DEEDS DESCRIPTION

STREAM-ACCRETIONS.

BOUNDARY ON

Where defendant contracted to convey to plaintiff a certain named tract of land containing a certain number of acres, more or less, and bounded on one side by a river, and executed a deed describing the land as a part of a governmental subdivision, plaintiff took title to accretions.

3. SAME-DEED TO DEFINITE QUANTITY OF LAND.

Where a deed described the land conveyed as a certain number of acres off from one side of a government subdivision, the purchaser was not entitled to accretions lying between the land described and the river.

Cross-Appeals from Circuit Court, Yell County, Dardanelle District, in Chancery; William L. Moose, Judge.

Action by R. C. Sadler and another against James K. Perry and wife. From a judgment for plaintiffs, defendants appeal, and plaintiffs prosecute a cross-appeal. Affirmed.

J. M. Parker, for appellants. Bullock & Davis, for appellees.

HILL, C. J. Perry and Sadler entered into a written contract on November 11, 1890, containing, among many other clauses, this one: "Said Perry to deed unincumbered to said Sadler the Keywood place say about 68 acres more or less and 32 acres off lower side of Brown place along upper side of Keywood place." Pursuant to this contract, two deeds were executed, one to R. C. Sadler, and one to R. C. Sadler and Elizabeth C. Sadler, his mother, to different tracts. In the deed to R. C. Sadler "all of north half of the south east quarter except the 32 acres off the south side in sec. 15, T. 6, N. R. 20," etc., is conveyed. In the deed to Sadler and his mother the following description is found: "The south half of the south east fractional quarter containing sixty eight acres more or less and thirty two acres off of the south side of the north half of south east fractional quarter, all in sec. 15, township six, north of the base line and range 20 west 5th principal meridian," etc. The Keywood place was conveyed to Perry in 1883 as "the south half of the south east quarter of section fifteen in township 6 north and range 20 west containing 66 acres more or less." This action is brought by appellants, claiming a small tract of 62-100 of an acre, being described in the governmental surveys as southwest fractional quarter of section 14, township 6 north, range 20 west, and its accretions and the accretions to said 68-acre and 32-acre tracts.

It is undisputably shown that it was an unintentional oversight in the conveyances to Perry and from Perry to Sadler that said fractional quarter section of section 14 was not included. It was a small wedge-shaped tract running almost to the dwelling house on the Keywood place, including part of the yard and garden. This part of it was inclosed with other land, and all of it under control of the owner of the Keywood place. The parties did not know that this fraction did not pass under the deeds, as they supposed all of this land was in section 15, and it was clearly shown that it was intended to be conveyed. The chancellor held that it and its accretion passed to Sadler, and in this the decree is right. The Keywood place fronts the Arkansas river, and there is a large accretion there formed by alluvion. Appellants contend that the contract and conveyances were to convey to Sadler 100 acres, no more nor less, and that the 32 acres were to be conveyed from the Brown tract in order to add to the Keywood tract of 68 acres to constitute the 100 acres, and that the accretions did not go with the conveyances, as the 100 acres was conveyed without them. The contract to convey the Keywood place shows that the tract going under that name, containing approximately 68 acres, was to be conveyed, and the conveyance of it contained the words "more or less," indicating that the acreage was an approximation and not a fixed quantity. This court has adopted the rule of the Supreme Court of the United States in regard to conveyances affecting accretions. This is the principle which governs here: "Where a water line is the boundary of a named lot, that line remains the boundary, no matter how it shifts, and a deed describing the lot by number or name conveys the land up to that shifting line, exactly as it does up to the fixed side lines." Towell v. Etter, 69 Ark. 33, 59 S. W. 1096, 63 S. W. 53. The conveyance of the Keywood place by name in the contract, and the conveyance of what was supposed to be the Keywood place by the governmental survey numbers (and which was in fact all of it, except this small tract which the chancellor reformed the deed to convey), carried the line to the river, and included the accretions. The chancellor so held, and his holding is affirmed.

The chancellor held that the accretions fronting the 32-acre tract did not pass to Sadler and his mother, and, as the appellant Mrs. M. C. Perry (wife of the other appellant) had acquired title to all of that tract except the 32 acres conveyed to Sadler and his mother, that she was entitled to the accretions between it and the river. The appellees Sadler and mother cross-appeal from this part of the decree.

The contract and deed designated a certain number of acres to be taken from a certain part of the Brown place. It was 88 9.W.-53

appropriately described, so that the lines could be, and they were, laid out in accordance therewith. When located, there was an accretion between the lines thus located and the river. This tract was not described by name or number, like the Keywood place, thereby carrying the boundary to the shifting water line, but this boundary was fixed, and the acreage determined by the contract and deed.

The chancellor was right, and the crossappeal is not sustained, and the decree in all things affirmed.

ANGLIN et al. v. CRAVENS et al. (Supreme Court of Arkansas. June 17, 1905.) 1. ABATEMENT AND REVIVAL-CAUSES PENDING ON APPEAL.

Kirby's Dig. §§ 6298-6300, 6314, 6315, relating to the revival of an action in the name of the representatives on the death of a party pending action, apply to causes pending in the Supreme Court on appeal, as well as to causes pending in the trial courts.

2. SAME TIME FOR REVIVAL.

Under Kirby's Dig. §§ 6314, 6315, providing that an action shall not be revived without defendant's consent after one year from the time the order might have been first made, and that where it appears that either party to an action has been dead for so long a period that the action cannot be revived without the consent of both parties it shall be stricken from the records, where more than a year has elapsed since the order to revive might have first been made, a motion to dismiss the appeal must be sustained.

Appeal from Circuit Court, Marion County, in Chancery; Elbridge G. Mitchell, Judge.

Suit by W. M. Anglin and another against A. G. Cravens and others. From a decree for plaintiffs, but denying their prayer for foreclosure of a mortgage, plaintiffs appeal. Appeal dismissed.

W. M. Anglin and H. H. Hilton brought this suit in chancery against appellees to foreclose a deed of trust on real estate executed by appellees to appellant Hilton, as trustee, to recover payment of an alleged debt to Anglin, and also to declare a lien for an amount paid by Anglin in redemption of the lands from tax sale. The lands were sold for taxes and purchased by one Layton, and Anglin bought and received a deed from Layton, paying him $300 therefor, but only claimed it to be a redemption. The chancellor declared a lien in favor of the plaintiff Anglin for the taxes and interest found to have been paid on the lands, amounting to the sum of $233.03, but denied the prayer of the complaint for a foreclosure of the mortgage, and the plaintiffs appealed to this court. Appellant Hilton was only a formal party by reason of being trustee in the deed, and he has no interest in the suit. Appellees file their motion to strike the case from the docket of this court, and for grounds show by affidavit that appellant W. M. An

glin died on April 5, 1904, since the appeal was taken, and that the cause has not been revived. W. W. Taylor, as administrator of the estate of Anglin, responds to the motion, showing that letters of administration upon said estate were issued to him by the probate court of Marion county on August 2, 1904 (no administration upon said estate having been previously commenced), and he asks that the cause be now revived. The parties also file briefs upon the whole case, which is submitted with the motion.

Wood Bros. and J. C. Floyd, for appellants. Horton & South, for appellees.

MCCULLOCH, J. (after stating the facts). The question to be first considered is whether or not the case can now be revived. The statute provides that, where either of the parties to a pending action dies, the cause may, on motion of any party interested, be revived in the name of a special administrator, if there is no general administrator. Kirby's Dig. §§ 6298-6300. It is further provided that "an order to revive an action in the name of the representatives or successor of a plaintiff may be made forthwith, but shall not be made without the consent of the defendant after the expiration of one year from the time the order might have been first made" (Kirby's Dig. § 6314); and that "when it appears to the court by affidavit that either party to an action has been dead,

* for a period so long that the action cannot be revived in the names of his representatives or successors without the consent of both parties, it shall order the action to be stricken from the docket" (Id. § 6315). This statute applies to cases pending in this court on appeal, as well as to cases pending in trial courts. State Fair Association v. Townsend, 69 Ark. 215, 63 S. W. 65.

The statute is mandatory in its terms, and the revivor, to be effective, must be applied for within the time pointed out. An action, after the death of either of the parties, can proceed no further until it has been properly revived, and the object of the statute is to fix a time within which those interested in the suit may have it revived, and, if not revived within the time prescribed, to require an abatement. When the plaintiff dies during the pendency of the action, any person interested in the further prosecution thereof may have a revivor in the name of the administrator or executor, if there be such, and the right of action be one that survives in favor of the personal representative, and if there be no general administrator or executor, the revivor shall be in the name of a special administrator appointed by the court in which the action is pending. The order to revive may be made forthwith-as soon as the court in which the action is pending convenes after the death of the plaintiffand must be made within one year after that time, except by consent of parties. The limitation of time in the statute applies equally

where there is no general administrator or executor as where there is one, because in such event the persons interested may have a revivor in the name of a special administrator. Appellant Anglin died on April 5, 1904, and more than one year has elapsed since the order to revive might have first been made, and it cannot be now made.

The motion to dismiss the appeal and strike the case from the docket of this court is sustained, leaving the decree appealed from in full force. It is so ordered.

STATE v. WESTERN UNION TELE-
GRAPH CO.

(Supreme Court of Arkansas. June 17, 1905.) TELEGRAPHS FAILURE TO TRANSMIT MESSAGES-PENAL STATUTES-CONSTRUCTION.

Kirby's Dig. § 7946, requiring telegraph companies, under the penalty of $500 for each refusal, to transmit messages without discrimination, when construed with the act which it repealed (Mansf. Dig. § 6419), which prescribed a penalty of $100 for “every neglect or refusal to transmit a message, and with Kirby's Dig. § 7943, which requires messages to be correctly transmitted without unreasonable delay and section 7944, providing that any officer or agent who willfully violates the preceding section is guilty of a misdemeanor, and making the company liable for damages, applies only to a willful or intentional refusal to transmit a message, and not to a refusal resulting from negligence on the part of the agent in ascertaining whether or not the company has an office at the place to which the message is directed.

[Ed. Note. For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, §§ 79, 80.]

Appeal from Circuit Court, Miller County; Joel D. Conway, Judge.

Action brought by the state of Arkansas against the Western Union Telegraph Company to recover the statutory penalty of $500 for refusal to transmit a message. The court, sitting as a jury, found for the defendant, and rendered judgment accordingly, and the plaintiff appealed. Affirmed.

Robt. L. Rogers, Atty. Gen., for the State. William F. Kirby, for appellee.

MCCULLOCH, J. (after stating the facts). The statute (Kirby's Dig. § 7946) provides that "every telegraph and telephone company doing business in the state must, under a penalty of five hundred dollars for each and every refusal so to do, transmit over its wires to locations on its lines, for any individual or corporation or other telegraph or telephone company, such messages, dispatches or correspondence as may be tendered to it, or to be transmitted to any individual or other telegraph or telephone companies, at the price customarily asked and obtained for the transmission of similar messages, dispatches or correspondence, without discrimination as to charge or promptness." The undisputed testimony shows that a message

was tendered to appellee's agent at Texarkana for transmission to Wayne, Ind. T., where appellee had established and was then maintaining an office, but that such agent negligently and erroneously examined an obsolete monthly tariff book or list of offices of appellee, instead of the current list, and, finding no such office on the list (the office having been recently established), declined to receive and transmit the message for the reason that the company had no office at the point to which the message was directed. The court declared the law to be "that even though the defendant did refuse to transmit the message to Wayne, Ind. T., a station and locality on its lines where it had a telegraph office, and even though it refused to do so after it was notified that the sender claimed to have been in its office at that place, and while its tariff sheet and ratebook in the office at Texarkana, Ark., showed that it had an office at said place, still plaintiff cannot recover because defendant's agents refused to transmit the message solely because an old ratebook and tariff sheet, inadvertently examined by them, failed to show that Wayne had a telegraph office, and they honestly believed there was none there; the statute not meaning to provide a penalty unless defendant willfully refused to transmit the message, knowing there was an office at the place of destination. And this is so even if the agents of defendant were negligent in not knowing or ascertaining that there was a telegraph office at the place to which the message was directed."

A decision of the case calls for a construction of the statute-whether only a willful refusal by a telegraph company to receive and transmit a message will authorize a recovery of the penalty, or whether the penalty may be recovered for a failure or refusal, as a result of negligence, to receive and transmit a message. This court, in Brooks v. Western Union Tel. Co., 56 Ark. 224, 19 S. W. 572, in construing this statute, as to whether or not it inflicted a penalty for refusing to deliver a message, said (speaking through Chief Justice Cockrill): "The statute is penal, and its terms cannot be extended beyond their obvious meaning. Where there is a doubt, such an act ought not to be construed to inflict a penalty which the Legislature may not have intended." The former statute on this subject (Mansf. Dig. § 6419), which was expressly repealed by the statute now under consideration (act of March 31, 1885), prescribed a penalty of $100 for "every neglect or refusal by a telegraph company to receive and to transmit a message." The omission of the word "neglect" from the new statute is noteworthy in discovering the legislative intent, and is clearly indicative of an intention not to provide

a penalty for mere negligent acts. It is also worthy of consideration that in section 7 of this statute (Kirby's Dig. § 7943) it is required that messages shall be correctly transmitted, without unreasonable delay, in the order of their delivery, and kept in strict confidence; and section 8 (Kirby's Dig. § 7944) provides that any officer or agent of the company who willfully violates the pro visions of the preceding section is guilty of a misdemeanor, and that the company shall be liable for the damage incurred. In the case of Frauenthal v. Western Union Tel. Co., 50 Ark. 78, 6 S. W. 236, this court held that where a message was received by the telegraph company for transmission from Conway, Ark., to Carthage, Mo., and was transmitted as far as Kansas City, but was lost between that place and Carthage by the negligence of the defendant, there could be no recovery of a penalty under this statute. The court then said: "Under the act of 1885, no penalty is recoverable for a mere negligent omission to transmit or deliver a message. For the redress of such injuries the party aggrieved is remitted to his remedy for damages." We think that the case at bar is controlled by the decision last above cited. It is clear that the Legislature meant to provide a penalty only for a willful or intentional refusal to transmit a message, not a refusal resulting from negligence on the part of the agent in ascertaining whether or not the company had an office at the place to which the message was directed. The manifest purpose was to prevent, by penalty, any discrimination against individuals, corporations, or competitive companies by willful or intentional refusal to receive and transmit without delay, and at the customary price, any message tendered. The Supreme Court of Indiana, in construing a statute in substantially the same language and form as our statute, said: "The statutory duty as respects telegraph companies is to transmit messages with impartiality and in good faith, and in the order of time in which they are received, without discrimination. The statutory penalty is incurred when its acts or omissions are characterized by or result from partiality or bad faith, or when it postpones messages out of the order of time in which they are received, or when it discriminates in rates charged or in the manner and condition of service between patrons. Each and all of the acts which involve the company in penal consequences proceed from some aggressive violation of statutory duty imposed, and not from a merely negligent omission to act according to the obligation of its contract as a public carrier of messages." W. U. Tel. Co. v. Swain, 109 Ind. 405, 9 N. E. 927.

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