Burt v. Henderson

• Court: Arkansas Supreme Court
• Writing for the Court: HUMPHREYS, J.
• Citation: Burt v. Henderson, 238 S.W. 626, 152 Ark. 547 (Ark. 1922)
• Decision Date: 20 March 1922
• Docket Number: 247
• Parties: BURT v. HENDERSON

238 S.W. 626

152 Ark. 547

BURT v. HENDERSON

No. 247

Supreme Court of Arkansas

March 20, 1922

Appeal from Monroe Circuit Court, George W. Clark, Judge; reversed.

Judgment reversed and cause remanded.

Bogle & Sharp and Emerson, Donham & Shepherd, for appellant.

Hughes & Hughes, for appellees.

OPINION

HUMPHREYS, J.

This is an appeal from judgments rendered against appellant in the Monroe Circuit Court in suits instituted by R. H. Henderson and Katie C. Henderson separately against appellant and Richland Township Road Improvement District jointly, and consolidated for trial. Although served with process appellant did not plead or appear, and the trial resulted in two judgments being rendered against him, one in favor of R R. Henderson for $ 2,400 actual damages, and one in favor of Katie C. Henderson for $ 600 punitive damages. The purpose of the suits was to recover actual and punitive damages by each appellee against appellant for tearing down a fence, entering upon and removing dirt from certain lands within the road district to construct a road along the east boundary line thereof. The gist of the allegations contained in the complaints and amendments thereto was that the Richland Township Road Improvement District, created by act 219 of the General Assembly at its extraordinary session of 1920, through its duly appointed, qualified and acting commissioners, entered into a contract with the appellant, J. A. Burt, to construct the road authorized by said act; that, by and with the consent of said road district, said contractor, his agents, servants and employees, without authority from appellees, tore down a string of appellee's fence 500 feet in length and excavated 1,200 yards of dirt for the purpose of constructing said road, leaving a pit approximately 23 feet wide, 600 feet long, and 3 feet deep, for which there was no outlet; that as a result water stands in the excavation the entire year, and on account of the nearness of the pond to the residence on the land the health of those who attempted to live there was impaired; that on account of the unlawful, wilful and malicious manner in which appellants trespassed upon said lands each of the appellees suffered actual damages in the sum of $ 2,400 and punitive damages in the sum of $ 600.

Answers were filed to the complaints and amendments thereto by the Richland Township Road Improvement District, admitting its creation under special act of the extraordinary session of the Legislature of 1920, and alleging that the removal of the fence and widening of the road was done under authority of an order of the county court of Monroe County; that appellant J. A. Burt was employed by the district to construct the road, and that the acts complained of were not done wantonly, unlawfully or maliciously; that the land upon which the excavation was made was low and not in cultivation; that no damage resulted to appellee on account of the acts complained of.

Answers were not filed by appellant J. A. Burt. The causes were continued as to Richland Township Road Improvement District, and the judgments complained of were rendered against appellant J. A. Burt by default, a jury having first been...