Ark-La Electric Cooperative, Inc. v. Randall

• Decision Date: 05 April 1943
• Docket Number: 4-7019
• Citation: 169 S.W.2d 874,205 Ark. 646
• Parties: ARK-LA ELECTRIC COOPERATIVE, INC., v. RANDALL
• Court: Arkansas Supreme Court

169 S.W.2d 874

205 Ark. 646

ARK-LA ELECTRIC COOPERATIVE, INC., v. RANDALL

4-7019

Supreme Court of Arkansas

April 5, 1943

Appeal from Garland Chancery Court; Sam W. Garratt, Chancellor affirmed.

Decree affirmed.

Thomas B. Fitzhugh, for appellant.

A. D Shelton, for appellee.

OPINION

HOLT, J.

Appellees, E. A. Randall and Harry B. Howard, brought separate suits against appellant to recover damages for land taken by appellant for right-of-way purposes for a power line across tracts of land owned by them.

Appellee, Randall, alleged, among other things, that he owned 80 acres of land, approximately eight acres of which appellant had taken for right-of-way purposes; that he executed a "right-of-way easement" form presented to him by appellant under a misunderstanding; that said easement was executed and delivered by him on Sunday, was without consideration and void, and prayed for damages in the amount of $ 2,000.

Appellee, Howard, alleged that he executed, in favor of appellant, a similar right-of-way easement to that executed by Randall; that appellant had taken approximately 3 1/3 acres of the land described in the easement for right-of-way purposes; that said right-of-way easement had been nullified and voided after its execution and delivery to appellant for the reason that it "was materially altered and changed without plaintiff's (appellee's) consent by adding descriptions of other real estate owned by plaintiff in Garland county, Arkansas," amounting to 14 acres and that "the right-of-way was taken across and on this said 14 acres." There was a prayer for damages in the amount of $ 1,000.

The two causes were consolidated for the purpose of trial. Upon a somewhat lengthy hearing at which many witnesses testified, both for the appellant and the appellees, the court found, among other things, that "the right-of-way easement granted the defendant by the plaintiff, Harry B. Howard, should be canceled, in so far as the same affects the right of the said plaintiff to damages for the appropriation and taking of said right-of-way, for the reason that the defendant has made an alteration of a material part of said grant by adding descriptions of other property owned by said plaintiff to the easement (which other property was affected by the easement), since the execution and delivery of said easement to the defendant, said alteration being made without consent of plaintiff; that the right-of-way easement granted by the plaintiff, E. A. Randall, to the defendant should be canceled, in so far as it affects the right of said plaintiff to damages for the taking and appropriation of said right-of-way, for the reason that said instrument of easement was executed and delivered by the plaintiff, E. A. Randall, to the defendant on Sunday, March 8, 1942, and being void because of its execution and delivery on Sunday has not been subsequently ratified by said plaintiff on any week day."

There was a decree for appellee, Randall, in the amount of $ 430, and for appellee, Howard, in the amount of $ 398.50. This appeal followed.

Appellant says: "This appeal is made in the belief that excessive damages were allowed, and that in the case of appellee Randall the Sunday execution was valid. In the case of appellee Howard the additional description was added with his tacit if not formal approval."

It is conceded that the Randall right-of-way easement was executed and delivered on Sunday. Under many decisions of this court this would invalidate the easement unless it were subsequently ratified on a week day. In a comparatively late case, Burnette v. Elsesser, 180 Ark. 750 22 S.W.2d 386, this court said: "We think the court correctly canceled the deed to app...