Arkansas Power & Light Co. v. Murry, 5-2011

• Decision Date: 25 January 1960
• Docket Number: No. 5-2011,5-2011
• Citation: 231 Ark. 559,331 S.W.2d 98
• Parties: ARKANSAS POWER & LIGHT CO., Appellant, v. Orvall MURRY, et ux., Appellees.
• Court: Arkansas Supreme Court

Page 98

331 S.W.2d 98

231 Ark. 559

ARKANSAS POWER & LIGHT CO., Appellant, v. Orvall MURRY, et ux., Appellees.

No. 5-2011.

Supreme Court of Arkansas.

Jan. 25, 1960.

Joe W. McCoy, Malvern, House, Holmes, Butler & Jewell, Little Rock, for appellant.

William C. Gilliam, Malvern, for appellees.

HARRIS, Chief Justice.

In August, 1922, Arkansas Power and Light Company, ¹ appellant herein, obtained a right-of-way permit from W. H. Woodall and wife, owners of a certain 40 acres in Hot Spring County. The right-of-way covered 72 feet in width over the Woodall lands, giving the company the right to construct and maintain a line across same. In 1952, appellant found it desirable to enlarge and improve the transmission line across this property, and in contemplation of this improvement, obtained from the owner a new permit, which granted a similar right-of-way across the lands, with the right to clear a right-of-way 100 feet in width. In 1954, Orvall and Helen Murry, appellees herein, acquired title to the above 40 acres, with full knowledge of the existence of the two permits. In January, 1957, appellant company went onto the lands, clearing the right-of-way to a width of 100 feet, and also cutting additional trees outside the right-of-way, which the company considered a hazard to the line. Suit was instituted by the Murrys against appellant company, seeking damages for trees cut outside of the right-of-way, and also seeking damages for alleged damage caused to the land by the company, through the use of heavy clearing equipment. The jury awarded damages in the sum of $800, ² and from such judgment comes this appeal. For reversal, appellant argues two points, as follows, to wit:

'I.

'The Court Erred in Submitting Over Defendant's Objections, Plaintiffs' Instruction No. 2 as Modified.

'II.

'The Verdict of the Jury and Judgment Thereon Was Not Based on the Evidence and Was Excessive--The Court Erred in Denying the Motions for New Trial.'

I.

Appellant contends that under the provisions of the right-of-way permit, it was permitted to remove timber not only from the 100 foot width, but also to remove timber outside the right-of-way which might be considered a hazard to the line. The permit cites a consideration of 'thirty dollars and other good and valuable considerations, to us cash in hand paid, * * *' and the provisions pertinent to this litigation are as follows:

'The rights hereby conferred provide for the privilege and authority to enter upon said lands for the purpose of constructing and building said pole line, maintenance and operation thereof, with the right to clear and keep clear a right of way one hundred ³ feet in width, and to remove all other timber and obstructions that may interfere with the use of said line or that may or might be a hazard to the use of the same, and for the repairing, reconstructing, operating and the removing of same at any and all times.'

Further:

'The following items are included in this settlement: The right to change from a single pole line to a double pole line. Value of use of right of way and timber damage. ^3a Said Grantee agrees that it will pay other damages not included in above settlement inflicted by it in the construction and maintenance of said line.'

Appellant emphasizes the word 'other' in the permit, and argues that the cutting of trees considered hazardous to the line was included under the consideration paid by the company. Of course, appellees in opposing this contention, quickly call attention to the fact that such a construction is most illogical; i. e., it is not logical that a landowner would give a company a right to perhaps cut any number of valuable trees, outside the right-of-way, over an unlimited length of time, ⁴ for a consideration of only $30. Appellant points out that the instrument also recites 'other good and valuable considerations', but, were the consideration actually a greater amount, it would appear that appellant would have placed in evidence the amount of the actual and true consideration, particularly since the small consideration, among other things, is one of the points relied upon by appellees in their contention for a different interpretation of the contract. If appellant's interpretation is correct, the power company is not limited to a 100 foot right-of-way, for if it is entitled to cut hazardous trees outside this 100 foot area without paying additional compensation--then it actually, in effect, has a right-of-way wider than that granted by the 100 feet, since but few, if any, trees in the immediate adjacent area would be permitted to grow to maturity. It is, of course, admitted that the company had the right to cut trees within the right-of-way without payment of further compensation; appellees, while not conceding that appellant had the right to cut trees beyond the 100 foot right-of-way, do state 'that the most the 1952 permit could have done by the clause set out earlier was the right to cut 'danger trees' off of the 100 foot right-of-way, and then pay for the damage to the land and trees at a later date.' This view was apparently taken by the Murrys in their interpretation of the contract, for in bringing suit, they did not seek double or treble damages. We think, without question, that the language in the permit is subject to more than one construction, i. e. is ambiguous, and we have held many times that in case of doubt, or ambiguity, a contract or agreement shall be interpreted against the party who prepared the instrument. See American Insurance Company v. Rowland, 177 Ark. 875, 8 S.W.2d 452. Likewise, it is well settled that in construing a contract, the intention of the parties is to be gathered, not from some particular phrase, but from the whole context of the agreement. This agreement was prepared by the appellant company, and consists of a printed form containing several blank spaces to be filled in by hand. Following the first pertinent clause, heretofore set out, relied on by appellant, we particularly observe the language in the second clause set out herein, as follows: '* * * said grantee agrees that it will pay other damages not included in above settlement inflicted by it in the construction and maintenance of said line.' Considering that the language of the instrument leaves doubt as to the intention of the parties, and noting the other factors, previously mentioned, we have reached the conclusion that the power company, under the permit,...