Arkansas Light & Power Co. v. Decker

Decision Date02 June 1930
Docket NumberNo. 29.,29.
Citation28 S.W.2d 701
PartiesARKANSAS LIGHT & POWER CO. v. DECKER.<SMALL><SUP>*</SUP></SMALL>
CourtArkansas Supreme Court

Appeal from Hot Spring Chancery Court; W. R. Duffie, Chancellor.

Action by Mrs. L. M. Decker against the Arkansas Light & Power Company. Decree for plaintiff, and defendant appeals.

Reversed, and case dismissed.

Robinson, House & Moses, of Little Rock, for appellant.

Albert W. Jernigan and Henry B. Means, both of Malvern, for appellees.

BUTLER, J.

On the 4th day of September, 1913, J. H. York, then being the owner of the N.E.¼ of Sec. 36, Tp. 3 S., R. 18 W., Hot Spring county, Ark., executed a warranty deed for the express consideration of $4,000, by which deed he conveyed all the sand and gravel on and under said land for a term of ninety-nine years, the grantor agreeing for himself and his successors in title to pay the taxes on said land during said term of years. This deed was recorded in said county on the 23d day of September, 1913, and on December 13, 1913, for $1 and other valuable considerations W. S. Kirkham conveyed by warranty deed the above-mentioned sand and gravel to Loula M. Foster, now Mrs. L. M. Decker, which deed was recorded on the proper record of the aforesaid county on the 23d day of December, 1913. The grantee of this deed, who afterward became Mrs. Decker (appellee here), was at that time visiting in Hot Springs, her home being in Texas where she has resided from that date until now. The land in question bordered on Ouachita river, and consisted at that point of a sand and gravel bar. It was near this point that afterward the dam known as the Remmel dam was constructed for the purpose of generating electricity.

In January, 1923, negotiations were begun with York for the purchase of the gravel by the Caddo River Power & Irrigation Company, which purchase was finally completed, and the land was then conveyed by said company to the Arkansas Power & Light Company, appellant's predecessor. An abstract was prepared and furnished to these companies in which the deeds from York to Kirkham and from Kirkham to Foster appeared. The title, as disclosed by the abstract, not being satisfactory, certain affidavits were obtained to the effect that York had been in continual possession of the land for a considerable number of years; that the deed from York to Kirkham had been placed in escrow until payment of purchase price and obtained through fraud without anything being paid York for the conveyance. These affidavits apparently satisfied the Arkansas Power & Light Company, and in April, 1923, this company installed machinery and began to remove the sand and gravel from about two or three acres of the land and used the same in the construction of the dam. From April of 1923 until the latter part of September, 1924, the work of removing the sand and gravel was continuous, and about the last of September, 1924, the employees were paid off, and the record shows that on the 4th day of October, 1924, the work of removing the gravel had been completed. The plant was shut down and dismantling of the machinery begun, and on November 28, 1924, the dam was fully completed and the production of electricity started.

Some time in the summer or fall of 1927, Mrs. Decker, appellee, first learned by rumor that the gravel she had purchased from Kirkham was being removed from the land, and thereafter, on December 13, 1927, she filed this action against the appellant, successor of the Arkansas Power & Light Company, for the willful trespass on said land in the removal of sand and gravel therefrom in large amounts, for which she asked damages. The trial resulted in a decree in favor of Mrs. Decker, from which this appeal is prosecuted.

A number of questions are presented and discussed in the briefs of counsel which it will be unnecessary for us to consider, since at the outset of the case the appellee is met by the bar of the statute of limitations. Section 6950 of C. & M. Digest provides: "The following actions shall be commenced within three years after the cause of action shall accrue, and not after: First. All actions founded upon any contract or liability, expressed or implied, not in writing (a). Second. All actions for trespass on lands (b) or for libels. Third. All actions for taking or...

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