Appeal from Circuit Court, Marion County; B. B. Hudgins, Judge.
Action by E. B. Lake against Thomas Combs. Judgment for plaintiff, and defendant appeals. Affirmed.
This is the second appeal in this case. The case on the first appeal is reported in 84 Ark. 21, 104 S. W. 544, 1094, where the issues and facts are fully stated. On the former appeal we reversed and remanded the cause "with instructions to proceed with the suit for the recovery of the land and the usable value thereof from the date Combs took possession." When the cause on remand reached the lower court, additional pleadings were unnecessarily filed to present the only issue that could be presented under the mandate, to wit, "the recovery of the land and the usable value thereof."
At the last trial appellant, Lake, testified: "I claim damage for what the land would be worth from July 1, 1905, to this date. I was offered $300 a year for it if I would deliver the place that Combs holds with the lands, so that the ferry could be put in and operated from that place; but I could not get possession, as Combs held it, and so lost the deal. The place that Combs has his wire cable attached to is worth $300 a year to operate a ferry from, and if Combs would give it up I could get $300 a year for it, but he persists in holding it because it is the best on the Lake land to attach a ferry to and get out from the river." Appellant objected to the above testimony as incompetent, irrelevant, and immaterial, and because the witness was not an expert on the question of damage value.
Witness further testified, over appellant's objection, as follows: "And what the children now want is their land, and what its usable value is worth from July 1, 1905, to date, and which is $300 per year." The appellant duly excepted to the ruling of the court in admitting this testimony. In varying form the testimony of this witness to the above effect was given, over appellant's objection, to which he duly excepted. The testimony of this witness further showed that the usable value of the land in controversy disconnected with ferry privileges was nothing. Appellee, Lake, further testified that the only place that the appellant's ferry touched the land was from the line where the cable crosses 30 feet in the air to the iron rod where it is fastened, and this was a strip 1 inch wide and 100 feet long; that appellant had prevented the Lake heirs from running a ferry; that appellee Lake had demanded possession of the appellant, and he had refused to give it up.
The appellant in his own behalf testified in part as follows: "I am the owner of this ferry, and I am in possession of the land on the Cotter side of the river, and on the Marion county (Lake) side of the river the ferry
lands at the public road. This road lies between the river bank and the land where the iron stake is driven to which the cable is fastened. This iron stake or bar was put in about 15 years ago by me with Mr. Lake's consent, and we used it a number of years, year and year about — Lake and myself — before I sold my land to the Redbud Realty Company. In 1903 Lake sold the ferry to Wilbur, and through a company to Cornell, who sold the ferry to me. I have the ferry franchise license from Marion and Baxter county. It was transferred to me when I bought from Cornell, and it has been renewed to me from year to year since. There is another ferry about a quarter of a mile above there. The operation of this Lake ferry is a losing proposition, and I have offered to let any one have it who will run it and keep it up. The Lake ferry is the one which has the cable anchored to the land about which this suit is over. Mr. Lake, if he could get a license to operate a ferry, owns the land just below and just above the ferry, and he could put a cable across the river and anchor it on the bluff, and my possession and the attachment of my wire to that iron rod would not interfere with his doing so, but I would enjoin him if he undertook to run one there. I own the upper ferry, and I am a stockholder and am interested in the Redbud Realty Company, which owns the land on the Cotter side of the river, and I have permission from them to operate the ferry from that side of the bank. In high water we have to suspend the operation of the ferry, as we cannot land on the Lake...
