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(248 S.W.) father, knowing they would likely meet Ar "4. The man who would ravish his brother's thur, may have been regarded as a ruse by wife and later murder him would fabricate a the jury. They may have disbelieved the defense just like Charlie Spier had done." testimony and concluded that he took the

The last three statements were expresgun for the purpose of engaging in a shooting fray with his brother. As they were sions of opinions only and, therefore, propabout to meet he was watching his brother er argument. The first statement did not reand quickly warned him not to draw his sult in any prejudice to the cause of appelpistol. The jury may have drawn an infer-lant, because the court instructed the juryence from his conduct and statement that he "that he (appellant) had a right under the was prepared to prevent Arthur from draw | law to pursue his regular or intended course ing the pistol, or, to put it in common par. that his failure to turn aside to some other

without turning aside to some other road, and lance, that appellant had beaten him to it. While appellant stated that Arthur was the road would not deprive him of his rights under

the law of self-defense." aggressor, his father, the only eyewitness, stated that he did not know who fired first.

[6] Appellant's fifth assignment of error The conflict in the evidence, and the rea- 1 is that the court refused to give four of the sonable jnferences that might be drawn instructions requested by him. We have extherefrom, warranted the submission of the amined the instructions carefully and, by charge of murder to the jury, and was suffi- comparison with other instructions given by cient to support the verdict and judgment. the court, find that the instructions request

[2] Appellant's second assignment of er- ed were fully covered by other instructions, ror is that the court permitted the wife of except that part of appellant's request No. deceased to testify that about two years be- 1, embraced in the first sentence thereof. The fore the tragedy appellant ravished her. court gave that part of appellant's request. This was the cause of the trouble between The court fully and correctly instructed the the brothers. The quarrel growing out of jury upon every issue involved in the case. the affair never abated but continued until No error appearing, the judgment is af. it culminated in the tragedy. Being the firmed. origin of the trouble, the testimony was clearly admissible.

[3] Appellant's third assignment of error is that the court admitted proof of the insan

BOAS et al. v. MISSOURI PAC, R. CO. ity proceeding against Arthur. No objection

(No. 211.) was made to the testimony of Mrs. Arthur Spier relating to the insanity proceeding, at (Supreme Court of Arkansas. March 5, 1923.) the time it was introduced. The testimony of the other witnesses concerning the in... Limitation of actions 55(7)—Suit to en, sanity proceeding was elicited by appellant

join obstruction of creek barred three years from his own witnesses. We are unable to

after completion of construction, see just how the introduction of the testi

A suit to enjoin a railroad from obstructmony prejudiced the rights of appellant, but, by filling in a trestle spanning it and digging

ing and diverting the natural flow of a creek even if it did, he is in no position to com

a ditch too small to accommodate the flow dur. plain.

ing heavy rains, thus causing water to back up [4, 5] Appellant's fourth assignment of er over plaintiff's lands, is barred after three for is that counsel for the state, over the years from completion of the construction; the objection and exception of appellant, made nuisance as well as the injuries being original the following statements in the course of and permanent. argument:

2. Limitation of actions 55(7)-Suit to en"1. The defendant could have turned aside to

join excessive discharge of water into ditch

not barred after three years from construcanother road when he saw he was going to

tion thereof. meet the deceased, and, having failed to do so, he did not use all the means within his pow

A suit to enjoin a railroad from discharging er consistent with his safety to avoid the dif- water in such quantities from its ,boilers and ficulty

. He was, therefore, not entitled to roundhouse into a ditch, dug by it along the invoke the law of self-defense.

side of its track to carry off water diverted "2. The defendant shed more tears in the from a creek, by so filling in a trestle spanning last 24 hours than he had shed for years prior it that the water backed up on plaintiff's laná to the trial; that he should have gone to the and became stagnaut, was not barred after prave of his deceased brother at the time of three years from completion of the fill and his funeral and shed some tears; that the evi- ditch; such acts constituting a continuing nuidence showed that he did not shed any at that sance and injury distinct from the original nui

sance and injuries. "3. When Charlie Spier ravished the wife of deceased be forfeited the right to live, un

Appeal from Lawrence Chancery Court;

L. F. Reeder, Chancellor.
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der the law.



Suit by Mrs. Ida Boas and others against , lants were inundated and greatly damaged the Missouri Pacific Railroad Company with backwater. From a decree dismissing the bill, plaintiffs [1] The nuisance complained of consisted appeal. Affirmed in part, and reversed and in filling in the trestle which theretofore remanded, with directions in part.

spanned Turkey creek so as to divert the W. A. Cunningham, of Walnut Ridge, for water from the channel of the creek, and by appellants.

digging a ditch too small to accommodate Thos. B. Pryor, of Fort Smith, and Ponder the flow of water during heavy rains. The & Gibson, of Walnut Ridge, for appellee.

decided weight of the testimony shows that

before the trestle was filled and the ditch HUMPHREYS, J. Appellants, 28 in num-constructed the water had not backed up ber, commenced this suit in the Eastern over any of appellants' lands, but immedistrict of the Lawrence chancery court, to diately thereafter and since that time has enjoin appellee from obstructing the natural backed up and seriously affected said lands. flow of Turkey creek until it provides com- The nuisance, as well as the injuries, were plete drainage to carry off the water and original and permanent, and the rights of from discharging water from their boilers action to enjoin the nuisance or sue for and roundhouse into the ditch, cut on the damages on account of permanent injuries west side of its track to turn Turkey creek, accrued when the construction which water backs up to and on the lands pleted in 1902, and suits should have been of appellant in such way as to stand and be instituted within three years after that time. come stagnant. Appellee filed an answer, ad- This court said in the case of Turner 1, Overmitting that it obstructed the natural flow ton, 86 Ark. 406, 111 S. W. 270, 20 L. R. A. of Turkey creek by damming the channel (N. S.) 894: or filling in the draw where the creek crossed

"When a nuisance is of a permanent charthe roadbed east of the lands of appellants, acter, and its construction and continuance are and turning the water into a ditch on the necessarily an injury, the damage is original, west side of its track, but alleging that the and may be at once fully compensated, and the right of action, if any, was barred by the statute of limitations begins to run upon the three-year statute of limitation; and deny. construction of the nuisance.” ing that it is discharging water from its boilers and roundhouse into the ditch which [2] The facts in that case are quite similar backs up to and on the lands of appellants to the facts in the instant case, and the so as to stand and become stagnant. Other rule announced therein is applicable and defenses were introduced, but the proof was controlling here. Appellants are clearly largely directed to the defenses set out above, barred from maintaining this suit to abate so we deem it unnecessary to set out the the original and permanent nuisance. The others. The court found that the cause of case, however, is different with reference action was barred by the three-year statute to water being continually emptied into the of limitation, and disinissed the bill of appel- ditch from the boilers and roundhouse. The lants for want of equity. From the decree weight of the testimony is to the effect dismissing the bill an appeal has been prose- that the water discharged from the roundcuted to this court.

house either passed through a sump into Appellants were owners of certain lands the ditch, or directly into it to such an exin the town of Hoxie immediately west and tent that it backs up two blocks in dry across appellee's railroad track from its weather and stands in a stagnant pool near terminal and switchyard. Originally Tur- or on said land. The act of appellee in key creek flowed down from the north part discharging this water into the ditch from of said property and passed under the main day to day is distinctively a continuing line of the railroad and thence in a souther- nuisance and injury. It is in no sense a ly direction along the east side of the road-part of the original nuisance and injuries. bed for considerable distance before The action to abate it was not barred when crossing back to the west side thereof. In this suit was instituted. The court erred 1902 appellee filled in the gap of its roadbed in dismissing this, the second cause of apwhere the creek first crossed it, so as to pellee's action. obstruct the flow of water, and in order to The decree is affirmed as to the first carry it off dug a ditch in a southerly direc- cause of action, but reversed and remanded tion along the west side of the roadbed to as to the second, with directions to enjoin connect with Turkey creek where it crossed appellee from emptying water out of its the roadbed a second time. According to the boilers and roundhouse, directly or indirectweight of the evidence, the ditch was not ly, into the ditch or the bed of Turkey creek large enough to carry off the water, and north of the ditch, without preparing faduring the heavy rains the lands of appel-cilities for carrying the water off.


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(248 S.W.)

township 14, range 12 east, and have been oc. WEBB et al. v. SPANN. (No. 193.) curving and claiming the same since the year

1911, without color of title thereto. (Supreme Court of Arkansas. Feb. 26, 1923.) “(2) That the lands occupied by them are

situated within the meander line of what is 1. Appeal and error 1010(1)-Findings of known as Hudgen's Lake. trial court accepted on appeal if supported “(3) That the plaintiff had color of title to by testimony.

and was claiming, clearing up, and bad actual Findings of the trial court sitting as a jury possession of the lands occupied by the defend. must be accepted on appeal if testimony is ants at the time of and prior to the occupancy legally sufficient to support them.

of the defendants.

“(4) That after the defendants took pos2. Limitation of actions on 105(2)-Pendency session of said lands, and within seven years, of suit to quiet title held not to prevent limi- the plaintiff commenced an action in the chan. tation in later action in ojectment.

cery court of the Osceola district of Mississippi Where a suit to recover land and quiet title county, Ark., against them, to recover said was begun within seven years after defendants land from them, and quiet bis title thereto, took possession of plaintiff's land, the pen., which action is still pending and undetermined. dency of that suit would prevent running of "(5) That, after said action was commenced limitations against it, but would not prevent by the plaintiff in the chancery court, and withlimitation against an action of ejectment be- in seven years after defendant took possession gun after expiration of the seven years where of said lands, the plaintiff and defendants enthere was no connection between the two cases, tered into an agreement, whereby plaintiff and and no nonsuit had been filed in the first one. defendants agreed to let the ownership of the 3. Limitation of actions on 15--Agreement to land abide the decision of the Department of

abide decision of Department of Interior held the Interior, the defendants agreeing, in case to toll limitations.

the Department of the Interior decided in faWhere, after suit to recover land within the por, of the riparian owners, to vacate said

lands immediately. meander line of a lake occupied by defendants

“(6) That the Department of the Interior dein 1911, and to quiet title, was begun, the par- cided in the year 1920 that there was no error ties agreed to let the ownership abide the de- in the original survey of Hudgen's Lake, and cision of the Department of the Interior, the including the lands claimed and occupied by agreement operated to prevent running of limi- the defendants, belonged to and were owned tations till the character of the land had been by the riparian owners, including the plaintiff.” determined by the Department, which made decision in 1920, and plaintiff's later action in [1] Inasmuch as the case was heard by ejectment was not barred by the seven-year the court sitting as a jury, these findings statute.

must be accepted if the testimony is legally 4. Ejectment 9(4)-Plaintiff in possession sufficient to support them when given its of land under color of title can maintain highest probative value in appellee's favor, ejectment against mere trespassers.

and we think it is sufficient for that purPlaintiff, having possession of land under pose. It is undisputed that appellants were color of title, can maintain ejectment against squatters, who entered upon and occupied mere trespassers.

the land on the theory that it was govern

ment land, and did not belong to the ripariAppeal from Circuit Court, Mississippi

At the time of their entry it County; W. W. Bandy, Judge.

was insisted by them that the government Separate actions of ejectment by J. C. survey was in error in showing the land Spann against J. C. Webb and others. Cases which they entered upon to be a lake, and consolidated for trial. From a judgment the Government Land Office was induced for plaintiff, defendants appeal.

Affirmed. to verify this survey. A finding was made T. J. Crowder, of Blytheville, for appel- by the Department that no error had been

made in the original survey. The Departlants.

ment of the Interior reviewed this finding, J. T. Coston, of Osceola, for appellee.

and affirmed it. The effect of that action

was, of course, to conclusively determine SMITH, J. Appellee brought separate the fact that at the time of the government suits in ejectment against appellants, to re

survey the land in litigation was a lake, cover certain parcels of land situated in and was therefore owned by the riparian section 22, township 14 north, range 12 east.

proprietors. The cases are identical, and were tried to It is insisted by appellee that, if the lake gether and disposed of as a single case. bed was apportioned among the riparian The court made findings of fact on all the proprietors in accordance with the rules for issues raised in appellee's favor, and the such apportionment, the land in litigation recital of these findings will explain and would fall within the boundaries of appelstate the case. They were as follows: lee's land; but the court made no finding

*(1) That the defendants are living upon to that effect, the finding being merely that and occupying land in the W. 12 of section 24, the lands covered by Hudgen's Lake were

CwFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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an owners.

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owned by the riparian owners, including them that, if the land was government land, appellee, and we do not feel called upon to he had no claim to it, and was willing for attempt to determine whether the land appellants to perfect their homestead would fall to appellee in this apportionment. claims, and with this understanding, and Indeed, the determination of that question because of it, he did not press the suit unwould involve the validity of appellee's title til the character of the land had been finalas a riparian owner—a question which we ly determined by the federal government. do not decide, as the case must be affirmed This finding of the Department of the Inupon other grounds. Appellee had color of terior was made on December 18, 1920; title to the land in litigation, and we think but appellants refused to vacate, and therethe testimony shows he had actual posses- after these suits were brought in the spring sion thereof at the time appellants entered ; of 1921. We think this agreement, which in fact, he had cleared about 100 acres of the court found the parties had made, opland in the south balf of the section, and erated to prevent the running of the statute had it about ready for the plow when ap- of limitations until the character of the pellants entered upon it.

land had been determined by the Depart[2] It is undisputed that after appellants ment of the Interior; and, with the period took possession of the land, and within of time covered by this agreement excluded, seven years appellee commenced an action the statute of limitations could not have in the chancery court to recover the land run against this suit. Shirey V. Whitlow, from them, and to quiet appellee's title so Ark. 444, 97 S. W. 444; Hudson v. Stillthereto, and this action is pending and un- well, 80 Ark. 575, 98 S. W. 356. determined This was the court's fourth

[4] Appellee had possession under color of finding of fact, and it is insisted that it is title. He was therefore entitled, as against conclusive of the case. We think, however, appellants, who, under the facts of this recthis fact is not of controlling importance, ord, were mere trespassers, to maintain this and would not operate to prevent the run- suit. Cotton v. White, 131 Ark. 273, 199 S. ning of the statute of limitations against W. 116. this suit, considered by itself; and, while The judgment of the court below is therethe pendency of that suit would prevent the fore affirmed. running of the statute of limitations against it, its pendency would not prevent the running of the statute of limitations against this one, as there was no connection be WYNNE, LOVE & CO. v. BUNCH. (No. 206.) tween the two cases, and no nonsuit had been filed in the first one. Such is the ef- (Supreme Court of Arkansas. March 5, 1923.) fect of the holding of this court in the case 1. Factors C30--Guaranty that cotton be sold of Hill v. Pipkins, 72 Ark. 519, 81 S. W.

for sum equaling advance, enforceable. 1216, and Wallace v. Swepston, 74 Ark. 520,

A guaranty that cotton shipped could and 86 S. W. 398, 109 Am, St. Rep. 94.

would be sold for a sum equaling the advance In 25 Cyc. p. 1290, it is said:

then made as a consideration for the shipment “The defense of the bar of the statute of is enforceable. limitations applies strictly to the particular | 2. Evidence from 595-Inference of writing not action to which it is pleaded, and hence, if that dispositive instrument, offered to show insuit be not brought within the statutory period, trinsic fact, is for jury. the bar of the statute cannot be avoided by showing that another action had been brought dispositive instrument, but merely offered for

Where a writing put in evidence is not a by plaintiff against defendant on the same

the purpose of showing an extrinsic fact, it is cause of action within the period limited by the for the jury to say what inference of fact is to statute."

be drawn from it. Numerous cases are cited in support of 3. Factors 30-Factor held not liable for the text quoted, including the two

guaranty in sale of cotton unless authorized from this court mentioned above. See, also,

to sell in good faith at best price obtainable. 2 Wood on Limitations (4th Ed.) p. 1197;

Where cotton was delivered to a cotton fac

tor under an alleged agreement that it was to 8 C. J. & 166. [3] The fifth finding of fact is, however, I would be sold for a sum equaling the advance

be shipped under the guaranty that it could and decisive of the question of limitation; and then made as a consideration for the shipment, we think there was testimony legally suffi- the seller could not hold the factor on such cient to support that finding. Appellee tes- guaranty unless the factor had authority to tified that, after the suit in chancery bad sell in good faith at the best price obtainable. been brought, he discussed the suit with | 4. Factors call-Duty of factor to exercise appellants, who insisted that they made no

good faith, diligence, and ordinary discretion claim to the land except that it was goy in sale of consigned goods. ernment land, and was subject to entry for A factor has the right, and it is his duty, homestead purposes, and appellee stated tolto exercise good faith, due diligence, and ordi


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(248 S.W.) nary discretion in selling the goods consigned substantially corroborated by the testimony for sale.

of one Kinmann, who accompanied him to 5. Factors 630_Material alteration in obli- appellant's office before the first shipment gation assumed without assort of guarantor was made. factor discharged him.

The cotton was finally sold by appellant, A material alteration in the obligation as- and lacked $1,104.87 of bringing the amount sumed by a factor who guaranteed price, made of the advances; and appellee was sued for without his assent, discharged him.

this difference.

Two defenses were set up: The first, that Appeal from Circuit Court, Mississippi the cotton had been shipped under the guar. County; W. W. Bandy, Judge.

anty stated; and, the second, that appellant Action by Wynne, Love & Co. against C. B. had negligently failed to sell the cotton when Bunch. From a verdict for defendant, plain- it could have been advantageously sold, and tiff appeals. Reversed, and judgment for the loss incurred was a result of this negliplaintiff.


Both of these defenses were submitted to
V. G. Holland, of Blytheville, for appel the jury in a single instruction, and there
R. A. Nelson, of Blytheville, for appellee. It does not appear upon which defense the

was a verdict for appellee—the defendant. SMITH, J. Appellant is a corporation do

jury found for the defendant; but it does ing business as a cotton factor in Memphis, established for the reasons hereinafter stated.

not appear to us that either defense was Tenn.; and appellee is a farmer residing in Mississippi county, Ark. During the season

[1] Upon the defense of the guaranty-that of 1920-21 appellee shipped to appellant 14 appellant could, and would, sell the cotton bales of cotton to be sold for appellee's ac- for a sum not less than the advances made count. There were three consignments of

thereon-it may be said that if, in fact, the this cotton. There were 9 bales in the first it could, and would, be sold for a sum equal.

cotton was shipped under the guaranty that shipment, 2 in the second, and 3 in the third. ing the advance then to be made, as a conAppellee and one Martin shipped a few bales of cotton later for their joint account, but sideration for the shipment, we know of no that cotton is not involved in this litigation. forced. Pugh v. Porter Bros. Co., 118 Cal.

reason why that agreement should not be enAppellee testified that at the time of the first shipment he visited the office of appel- 628, 50 Pac. 772. But appellee's own testilant, and talked with Mr. Wynne, its presi- mony shows that he did not rely on this dent, and explained to him that he had taken guaranty. contract, and that he abrogated it. the cotton over in settlement with his share

Appellant insists, however, that the tescroppers, with whom he must settle for their timony, in its entirety, shows that no such interest, and that he explained to Wynne agreement was made, and that the cotton was that, while he wanted the largest advance shipped to it, to be sold by it as a cotton that could be made on the consignment, he factor, in the usual and ordinary course of did not want, an advance which would exceed business; and it may be said that the corthe price the cotton would bring. In other respondence between the parties strongly words, after settling with his share croppers,

supports that view, be did not want to be put in position where

It is insisted that a particular letter from he would have to call on the share croppers appellee is an admission of the indebtedness to return money he had paid them for their sued on, and constitutes an account stated. interest in the cotton.

Appellant had sold, on May 18, 1920, six Appellee testified that Wynne told him bales of the cotton for 16 cents a pound, and that advances of $125 per bale were being five bales for 20 cents. Appellee was notified made on cotton at that time, and would be of this sale in the usual manner, and declined made on the 9 bales appellee' had ready for to accept that price for his cotton. Appellant shipment, and that Wynne also stated he canceled the sale except as to one bale, which would guarantee to sell the cotton for a sum had brought 20 cents and had been premanot less than the amount advanced and that turely delivered to the purchaser through erthere would be money coming to appellée aft

After appellee repudiated the sale, aper the cotton was sold. He further testified pellant wrote to appellee advising that it that in reliance upon this guaranty the 9 could not continue to carry this advance, and bales were shipped, and an advance of $125 if the sale was not to be confirmed a deposit was made on each bale. When the next 2 of $500 would be required to cover the decline bales were shipped, an advance of $100 per In reply, appellee wrote appellant the fol

in price, and an anticipated future decline, bale was made; and when the last 3 were an advance amounting to $250 was

lowing letter, dated May 27, 1920: made, and appellee testified that he was told “I received your letter of 24th. I am not by Wynne that the same guaranty would ap- able to send you any money. I am expecting ply to the remaining shipments. Appellee is my cotton to pay itself out of debt. I saw in

Fan For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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