Imágenes de páginas

rights acquired while it tied the hands of the status, for the jurisdiction when assumed, in other municipality from exercising control February, 1904, was, so far as these parties over these streets. The case does not call were concerned, as of date July 21, 1903, or for an estoppel on this ground against North as soon thereafter as the vote could be deLittle Rock. The decree in the court below clared. The rights acquired after that date allowed the street railway company 60 days should be cut off, and those acquired prior to dispose of or remove the rails, cross-ties, thereto given full force. and other material placed by it on the streets, The court is of opinion that one month was and that is as favorable as it can ask on not reasonable time to allow the street car this score.

company to comply with the conditions pre4. Deciding that no rights can be sustain- cedent, and it follows therefore that the ed under the ordinance of August 10, 1902, street car company still has a reasonable does not dispose of any rights which the time under the ordinance of June 25, 1903, to street car company may have under the or- comply with the conditions precedent. dinance passed June 25, 1902. It is true The decree of the chancellor canceling and that the ordinance of August 10th repealed annulling the ordinance of June 25, 1903, is the conditions precedent therein to its vest- erroneous, and the same is hereby reversed. ing at once, and attempted to vest the fran- The decree canceling and annulling the orchise forth with; but the view the court dinance of August 10, 1903, and all other mattakes of that ordinance renders that action ters therein, except as above stated, are afentirely nugatory, and leaves in force what- firmed. ever rights the street car company may have had when the jurisdiction of the municipali

BATTLE, J. (dissenting). Judge Dillon ties over the Eighth Ward would have been says: “Public streets. squares, and commons, changed but for the intervention of the in- unless there be some special restriction when junction. The appellee seeks to avoid that the same are dedicated or acquired, are for proposition by invoking the doctrine of re- public use; and the use is none the less for lation, and contends that the final act of an

the public at large, as distinguished from nexation was carried back to the date the the municipality, because they are situated election was ordered, June 15, 1903. That within the limits of the latter, and because contention overlooks the plain provision of the Legislature may have given the superthe act under which the proceedings were vision, control, and regulation of them to the had. It declares that upon the declaration

local authorities. The Legislature of the of the vote favorable to annexation by the state represents the public at large, and has, council, and entering it upon the record of in the absence of special constitutional rethe council, such actions constitute the straint, and subject to the property rights and change of jurisdiction. Those acts raise the easements of the abutting owner, full and new flag over the territory annexed. The paramount authority over all public ways obtaining of the consent of the county court

and public places.” He further says: of Pulaski county to the us of the free

“Whether the fee of the street be in the mubridge before the franchise could be enjoyednicipality in trust for the public use, or in was clearly a condition precedent to its vest- the adjoining proprietor, it is in either case ing, and was a reasonable and enforceable of the essence of the street that it is public, condition precedent. Joyce on Electric Law,

and hence, as we have already shown, under $$ 187, 352, and 358, and authorities cited in the paramount control of the Legislature, as notes. This and the other conditions men- the representative of the public. Streets tioned in the ordinances would have to be do not belong to the city or town within complied with within a reasonable time. In which they are situated, even although acdetermining reasonable time, the subject- quired by the exercise of eminent domain, matter and all the circumstances are to be and the damages paid out of the corporation considered, as there can never be a fixed rule treasury. The authority of municipalities on such a subject. In this case the ordinance over streets they derive, as they derive all was passed June 28, 1903, and the election their other powers, from the Legislature was held July 21st; and the result would from charter or statute. The fundamental have at once been declared, and the jurisdic- idea of a street is not only that it is public tion changed, but for the injunction. The for all purposes of free and unobstructed rights of North Little Rock must be deter- passage, which is its chief and primary, but mined as of the date when it should have by no means sole, use." 2 Dillon on Municacquired jurisdiction. That date was less ipal Corporations, $8 656, 683. “The city corthan one month after the passage of the or- poration, as freeholders of the streets and dinance. Therefore North Little Rock as- highways in trust for public use, is but an sumed jurisdiction over the Eighth Ward, agent of the state. Any control which it subject to a valid ordinance granting a fran- exercises over them, or the power of reguchise to certain streets therein, subject to lating their use, is a mere public or governconditions precedent to be performed in a mental power delegated by the state, subject reasonable time from June 25, 1903. The to its control and direction, and to be exersubsequent proceedings did not alter that cised in strict subordination to its will. The corporation as such has no franchise in connection with the use of the streets for the

PERRY et ux. V. SADLER et al. transportation of passengers.” People v. (Supreme Court of Arkansas. June 17, 1905.) Kerr, 27 N. Y. 213; City of Chicago v. Rum

1. REFORMATION OF INSTRUMENTS-MISTAKE. sey, 87 Ill. 318, 355; State ex rel. v. Madison Where defendant agreed to convey to plain. St. Ry., 72 Wis. 617, 619, 40 N. W. 487, 1 L. tiff a certain tract of land by name, but the R. A. 771; Stanly p. City of Davenport, 54

conveyance by mistake failed to include a small Iowa, 463, 2 N. W. 1064, 6 N. W. 706, 37 Am.

strip of land which the parties regarded as a

part of the tract intended to be conveyed, and Rep. 216. Neither the state nor cities have which was contained in the same inclosure, any proprietary interest in the street. The plaintiff was entitled to have the deed reformed public they represent has no interest in the

so as to include this strip.

2. DEEDS DESCRIPTION BOUNDARY ON soil. Reichert v. Railway, 51 Ark. 491, 497,

STREAM-ACCRETIONS. 11 S. W. 696, 5 L. R. A. 183. The power and Where defendant contracted to convey to control either has over the same is govern- plaintiff a certain named tract of land containmental. When they grant an easement over

ing a certain number of acres, more or less, and the street, not common to the public at large,

bounded on one side by a river, and executed a

deed describing the land as a part of a govthey do so not because they have any pro- ernmental subdivision, plaintiff took title to prietary interest in the land, but because of accretions. their control over the streets in a govern


LAND. mental capacity. San Francisco v. Spring

Where a deed described the land conveyed Valley Waterworks, 48 Cal. 493, 529; City of as a certain number of acres off from one side Detroit v. Detroit City Ry. (C. C.) 56 Fed. of a government subdivision, the purchaser was 867, 874; City Ry. V. Citizens' Ry., 166 U.

not entitled to accretions lying between the

land described and the river. S. 557, 563, 17 Sup. Ct. 653, 41 L. Ed. 1114. Under the statutes of this state, city coun

Cross-Appeals from Circuit Court, Yell cils have the care, supervision, and control of County, Dardanelle District, in Chancery; all the public highways, streets, and alleys

William L. Moose, Judge. within the city, and may grant an exclusive

Action by R. C. Sadler and another against privilege of the streets of the city for street James K. Perry and wife. From a judgment railway purposes for such term of years as for plaintiffs, defendants appeal, and plainthey may agree upon. Kirby's Dig. 88 5530, tiffs prosecute a cross-appeal. Affirmed. 5448. This power extends to all the streets J. M. Parker, for appellants. Bullock & within the city, and continues so long as Davis, for appellees. they remain in the city, regardless of the time they have been in or may remain in the

HILL C. J. Perry and Sadler entered into city. It is exclusively governmental. The a written contract on November 11, 1890, streets in question in this case, together containing, among many other clauses, this with the care, supervision, control, and power one: "Said Perry to deed unincumbered to over the same, remained in the city of Little said Sadler the Keywood place say about 68 Rock until the 22d day of February, 1904, acres more or less and 32 acres off lower side when they became a part of the city of of Brown place along upper side of KeyNorth Little Rock, according to the act en- wood place." Pursuant to this contract, two titled "An act to amend the laws in relation deeds were executed, one to R. C. Sadler, and to municipal corporations," approved March one to R. C. Sadler and Elizabeth C. Sadler, 16, 1903 (Acts 1903, p. 148). The ordinances his mother, to different tracts. In the deed in question were passed by the city council to R. C. Sadler "all of north half of the south of Little Rock while the streets of which east quarter except the 32 acres off the south they were the subjects of legislation were side in sec. 15, T. 6, N. R. 20," etc., is conin that city, and within its territorial juris-veyed. In the deed to Sadler and his mother diction; and, as an incident to that juris. the following description is found: “The diction, it had the power to pass them. Ap- south half of the south east fractional quarpellant accepted them, and undertook, by the ter containing sixty eight acres more or less expenditure of considerable sums of money and thirty two acres off of the south side of the and labor, to construct a railway over the north half of south east fractional quarter, streets according to the terms thereof. The all in sec. 15, township six, north of the base ordinance thereby became a valid contract, line and range 20 west 5th principal meribinding upon the public, the city of Little dian,” etc. The Keywood place was convey. Rock and of North Little Rock. State ex rel. ed to Perry in 1883 as “the south half of the v. Madison St. Ry., 72 Wis. 617, 619, 40 N. south east quarter of section fifteen in townW. 487, 1 L. R. A. 771; City Ry. v. Citizens' ship 6 north and range 20 west containing Ry., 166 U. S. 557, 563, 17 Sup. Ct. 503, 41 66 acres more or less."

This action is L. Ed. 1114; Elliott on Roads & Streets, S8 brought by appellants, claiming a small tract 741, 742; 27 Am. & Eng. Ency, of Law (2d of 62-100 of an acre, being described in the Ed.) 15.

governmental surveys as southwest fractionI think the ordinances should be sustained. al quarter of section 14, township 6 north,

range 20 west, and its accretions and the acWOOD, J., concurs in this opinion.

cretions to said 68-acre and 32-acre tracts.

It is undisputably shown that it was an appropriately described, so that the lines unintentional oversight in the conveyances to could be, and they were, laid out in accordPerry and from Perry to Sadler that said ance therewith. When located, there was an fractional quarter section of section 14 was accretion between the lines thus located and not included. It was a small wedge-shaped the river. This tract was not described by tract running almost to the dwelling house name or number, like the Keywood place, on the Keywood place, including part of the thereby carrying the boundary to the shiftyard and garden. This part of it was in- ing water line, but this boundary was fixed, closed with other land, and all of it under and the acreage determined by the contract control of the owner of the Keywood place. and deed. The parties did not know that this fraction The chancellor was right, and the crossdid not pass under the deeds, as they sup- appeal is not sustained, and the decree in posed all of this land was in section 15, and all things affirmed. 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 ANGLIN et al. v. CRAVENS et al. fronts the Arkansas river, and there is a

(Supreme Court of Arkansas. June 17, 1905.) large accretion there formed by alluvion. Appellants contend that the contract and


ING ON APPEAL. conveyances were to convey to Sadler 100

Kirby's Dig. 88_6298-6300, 6314, 6315, reacres, no more nor less, and that the 32 lating to the revival of an action in the name acres were to be conveyed from the Brown of the representatives on the death of a party

pending action, apply to causes pending in the tract in order to add to the Keywood tract

Supreme Court on appeal, as well as to causes of 68 acres to constitute the 100 acres, and pending in the trial courts. that the accretions did not go with the con- 2. SAME-TIME FOR REVIVAL. veyances, as the 100 acres was conveyed Under Kirby's Dig. $8 6314, 6315, providwithout them. The contract to convey the

ing that an action shall not be revived without

defendant's consent after one year from the Keywood place shows that the tract going

time the order might have been first made, and under that name, containing approximately that where it appears that either party to an 68 acres, was to be conveyed, and the con

action has been dead for so long a period that

the action cannot be revived without the conveyance of it contained the words "more or

sent of both parties it shall be stricken from the less," indicating that the acreage was an ap- records, where more than a year has elapsed proximation and not a fixed quantity. This since the order to revive might have first been court has adopted the rule of the Supreme

made, a motion to dismiss the appeal must be

sustained. Court of the United States in regard to conveyances affecting accretions. This is the Appeal from Circuit Court, Marion Counprinciple which governs here: "Where a ty, in Chancery; Elbridge G. Mitchell, Judge. water line is the boundary of a named lot, Suit by W. M. Anglin and another against that line remains the boundary, no matter A. G. Cravens and others. From a decree how it shifts, and a deed describing the lot for plaintiffs, but denying their prayer for by number or name conveys the land up to foreclosure of a mortgage, plaintiffs appeal. that shifting line, exactly as it does up to the Appeal dismissed. fixed side lines.” Towell v. Etter, 69 Ark.

W. M. Anglin and H. H. Hilton brought 33, 59 S. W. 1096, 63 S. W. 53. The convey

this suit in chancery against appellees to ance of the Keywood place by name in the foreclose a deed of trust on real estate execontract, and the conveyance of what was

cuted by appellees to appellant Hilton, as supposed to be the Keywood place by the

trustee, to recover payment of an alleged governmental survey numbers (and which

debt to Anglin, and also to declare a lien for was in fact all of it, except this small tract

an amount paid by Anglin in redemption of which the chancellor reformed the deed to

the lands from tax sale. The lands were convey), carried the line to the river, and

sold for taxes and purchased by one Laytou, included the accretions. The chancellor so

and Anglin bought and received a deed froin held, and his holding is affirmed,

Layton, paying him $300 therefor, but only The chancellor held that the accretions claimed it to be a redemption. The chanfronting the 32-acre tract did not pass to cellor declared a lien in favor of the plainSadler and his mother, and, as the appellant tiff Anglin for the taxes and interest found Mrs. M. C. Perry (wife of the other appel- to have been paid on the lands, amounting lant) had acquired title to all of that tract to the sum of $233.03, but denied the prayer except the 32 acres conveyed to Sadler and

of the complaint for a foreclosure of the his mother, that she was entitled to the ac

mortgage, and the plaintiffs appealed to this cretions between it and the river. The ap. court. Appellant Hilton was only a formal pellees Sadler and mother cross-appeal from

party by reason of being trustee in the deed, this part of the decree.

and he has no interest in the suit. AppelThe contract and deed designated a cer- lees file their motion to strike the case from tain number of acres to be taken from a the docket of this court, and for grounds certain part of the Brown place. It was show by affidavit that appellant W. M. An

88 S.W.453

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 upoil 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.

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.

[ocr errors]

McCULLOCH, J. (after stating the facts). STATE V. WESTERN UNION TELEThe question to be first considered is wheth

GRAPH CO. er or not the case can now be revived. The

(Supreme Court of Arkansas. June 17, 1905.) statute provides that, where either of the

TELEGRAPHS FAILURE TO TRANSMIT MESparties to a pending action dies, the cause

SAGES-PENAL STATUTES-CONSTRUCTION. may, on motion of any party interested, be

Kirby's Dig. $ 7946, requiring telegraph revived in the name of a special adminis- companies, under the penalty of $500 for each trator, if there is no general administrator. refusal, to transmit messages without discrimKirby's Dig. 88 6298-6300. It is further pro

ination, when construed with the act which it

repealed (Mansf. Dig. $ 6419), which prescribvided that "an order to revive an action in

ed a penalty of $100 for "every neglect or rethe name of the representatives or successor fusal" to transmit a message, and with Kirby's of a plaintiff may be made forthwith, but

Dig. $ 7943, which requires messages to be cor

rectly transmitted without unreasonable delay shall not be made without the consent of the

and section 7944, providing that any officer or defendant after the expiration of one year agent who willfully violates the preceding secfrom the time the order might have been tion is guilty of a misdemeanor, and making the first made" (Kirby's Dig. $ 6314); and that

company liable for damages, applies only to a

willful or intentional refusal to transmit a mes"when it appears to the court by affidavit

sage, and not to a refusal resulting from negthat either party to an action has been dead, ligence on the part of the agent in ascertaining

for a period so long that the action whether or not the company has an office at the cannot be revived in the names of his repre

place to which the message is directed. sentatives or successors without the consent

(Ed. Note.-For cases in point, see vol. 45,

Cent. Dig. Telegraphs and Telephones, 88 79, of both parties, it shall order the action to be 80.] stricken from the docket" (Id. 8 6315). This statute applies to cases pending in this court

Appeal from Circuit Court, Miller Counon appeal, as well as to cases pending in trial

ty; Joel D. Conway, Judge. courts. State Fair Association y. Townsend,

Action brought by the state of Arkansas 69 Ark. 215, 63 S. W. 65.

against the Western Union Telegraph ComThe statute is mandatory in its terms, and

pany to recover the statutory penalty of $500 the revivor, to be effective, must be applied

for refusal to transmit a message.

The for within the time pointed out. An action,

court, sitting as a jury, found for the deafter the death of either of the parties, can

fendant, and rendered judgment accordingly, proceed no further until it has been prop

and the plaintiff appealed. Affirmed. erly revived, and the object of the statute is

Robt. L. Rogers, Atty. Gen., for the State. to fix a time within which those interested in

William F. Kirby, for appellee. the suit may have it revived, and, if not revived within the time prescribed, to require an abatement. When the plaintiff dies dur

McCULLOCH, J. (after stating the facts). ing the pendency of the action, any person

The statute (Kirby's Dig. $ 7916) provides interested in the further prosecution thereof

that "every telegraph and telephone company may have a revivor in the name of the ad- doing business in the state must, under a ministrator or executor, if there be such, penalty of five hundred dollars for each and and the right of action be one that survives every refusal so to do, transmit over its in favor of the personal representative, and wires to locations on its lines, for any indiif there be no general administrator or exec- vidual or corporation or other telegraph or utor, the revivor shall be in the name of a telephone company, such messages, dispatches special administrator appointed by the court or correspondence as may be tendered to it, in which the action is pending. The order or to be transmitted to any individual or to revive may be made forthwith--as soon as other telegraph or telephone companies, at the court in which the action is pending the price customarily asked and obtained for convenes after the death of the plaintiff — the transmission of similar messages, disand must be made within one year after that patches or correspondence, without discrimitime, except by consent of parties. The limi. nation as to charge or promptness." The tation of time in the statute applies equally 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 bad 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 covery 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. 8 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 clear. ly 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 & 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 nd. 405, 9 N. E. 927.

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


« AnteriorContinuar »