Bolin v. Drainage Dist. No. 17

• Decision Date: 13 December 1943
• Docket Number: No. 4-7186.,4-7186.
• Parties: BOLIN v. DRAINAGE DIST. NO. 17 et al.
• Court: Arkansas Supreme Court

Page 143

176 S.W.2d 143

BOLIN v. DRAINAGE DIST. NO. 17 et al.

No. 4-7186.

Supreme Court of Arkansas.

December 13, 1943.

Appeal from Circuit Court, Osceola District, Mississippi County; Zal B. Harrison, Judge.

Unlawful detainer action by Drainage District No. 17, and others against H. C. Bolin. From a judgment awarding the relief prayed, defendant appeals.

Affirmed.

D. F. Taylor, of Osceola, Claude F. Cooper, of Blytheville, and T. J. Crowder, of Jonesboro, for appellant.

C. M. Buck, of Blytheville, for appellees.

FRANK G. SMITH, Justice.

On February 24, 1937, appellee Drainage District brought unlawful detainer to recover possession of a tract of land from appellant. For some reason, not explained, the trial at which the judgment was rendered, awarding the relief prayed, from which is this appeal, was not had until January 4, 1943.

One of the errors assigned for the reversal of this judgment is, that the testimony was not sufficient to sustain it. In considering this assignment we must, of course, give to the testimony tending to sustain the verdict, its highest probative value, and this testimony is to the following effect.

The land here in controversy constitutes a small part of a larger acreage which the District acquired under the authority of Special Act 103 of the Acts of 1917, page 485 (Schmidt v. Drainage Dist. No. 17, 140 Ark. 541, 215 S.W. 614), and is used as a floodway or spillway. The land lies between two levees and is subject to overflow to great depths during any rainy season.

Appellant entered upon a small tract of these lands believing the title to be in the State, and his possession was discovered by the chief engineer of the Drainage District in 1931, and a contract was made between appellant and the engineer of the District, under the terms of which appellant agreed to clear 15 acres of this land during each year of his occupancy, until he had cleared 45 acres. He cleared some land, and it does not appear to be contended that he did not clear the acreage required by the contract. It was agreed that he should have the land which he did clear, free of rent, for three years after clearing it, so that the first rent to be due upon the land cleared was for the fourth year of appellant's occupancy. When the rent for that year accrued, demand was made for its payment, and this suit was brought when appellant refused to pay the rent. He filed an answer in which he "denied all the material allegations of the complaint".

There was no definite agreement as to the amount of rent to be paid, except that the engineer testified that it was to be the customary rent. There was no testimony as to the customary rent for lands of this character, and appellee says such testimony was not offered for the reason that it was not believed that any judgment on that account would justify the trouble and expense of making the proof.

The question of rental value was not, therefore, submitted to the jury, and there was submitted only the question, whether the relation of landlord and tenant had been created and had later been breached. The instructions upon these issues read as follows:

"No. 1. In actions of this kind the title to the property is not involved. Its purpose is to determine the right to the possession of the property and it can only be maintained when the relation of landlord and tenant exists. Therefore, if you find that the defendant, H. C. Bolin, entered into possession of the lands in question under an agreement with plaintiff, by which he was to clear same and to pay rent thereon at the expiration of three years in a sum to be agreed upon, and you further find that defendant failed and refused to agree upon the rent for future use of the land or to pay any rent after the same became due and payable under the contract and agreement, then your verdict should be for plaintiff.

"No. 2. On the other hand, if you find from the evidence that defendant entered into possession of the lands in question, believing it to be State land, and for the purpose of acquiring title thereto, and without any contract or understanding with plaintiff, then your verdict would be for the defendant."

Appellant asked three instructions, all of which were refused. These were to the following effect: (1) that if appellant had had possession for three years, or more, before the institution of the suit, or (2) that if appellant was in possession at the time of making the alleged contract, or (3) if there was no agreement as to the amount of rent to be paid and the length of time appellant was to occupy the land had not been agreed upon, a verdict should be returned for the defendant.

We will consider and dispose of the assignments of error, relating to the refusal to give all, or any, of these instructions, together.

It is true appellant testified that he was in possession at the time of the making of the alleged lease contract, under the assumption that the title to the land was in the State; but that is unimportant, and would be equally so, if he had been in possession under a claim of title in himself. The title to the land is not involved in unlawful detainer suits, and the statute (Sec. 6054, Pope's Digest) provides that "In trials...