Appeal
from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed.
STATEMENT
BY THE COURT.
This is
the second appeal in this case. The case on the first appeal
is reported in 84 Ark. 21 (Lake v. Combs), 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 worth $ 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 from 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 thirty feet in the air to the iron
rod where it is fastened, and this was a strip one inch wide
and one hundred 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 fifteen 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 counties. 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 side of
the ferry. If the court should eject me from the Lake land
and make me move my cable from the iron rod, I would fasten
it to the trees. The anchor on the Lake land is not necessary
to the operation and maintenance of the ferry. I took the
wire cable loose from where Wilbur and his crowd had fastened
it, and moved it back upon the Lake land, and fastened it to
the iron bar or rod because it is the best and safest place
for it. But there are other places in the bluff just above
and just below where my ferry is, but they are on the Lake
land, too. Where I fastened my cable, it is so high above the
road that it does not interfere with any one passing. This is
an entirely different ferry from the one that Lake and I
operated year about, and has no connection with it, as all
interest I then had in the ferry lapsed."
The
appellant asked the court to instruct the jury to return a
verdict in his favor, which request the court refused, and
appellant excepted. The court then instructed the jury as
follows:
"As
I understand it, the opinion of the Supreme Court gives the
plaintiff the possession of the land, and limits the trial
here to the issue of the usable value of the land. You will
return a verdict for plaintiff for the possession of the
land, together with a reasonable amount for the usable value
of the land by Combs, considering the use it is put to, and
whether in operation of the ferry it can be tied to a tree
and anchoring the cable some other place." The appellant
duly excepted to the giving of the above instruction.
After
the argument of counsel, the court said to the jury:
"Counsel have presented the question to you. I instruct
you that the usable value of the land is the value for the
purpose of tying a cable to it, and does not include the
value of the boat." The appellant excepted to the
instruction.
The
jury returned a verdict in favor of appellees for the sum of
$ 569.50. Judgment was entered for that sum after motion for
new trial had been overruled. The motion assigned as error
the rulings of the court, to which exceptions had been duly
saved, and the further grounds that the verdict was contrary
to the evidence, and that the amount thereof was excessive.
This
appeal has been duly prosecuted.
Judgment affirmed.
Z. M.
Horton and Allyn Smith, for appellant.
1. The
evidence of C. A. Lake was irrelevant because (1) It was only
the opinion of the witnesses, and not a statement of facts
from which the jury could draw a conclusion. 4 Barb. (S. C.)
256, 261; 4 Denio 311; 17 Wend. 137-161; 19 Ohio 142; 5 Hill
608; 6 Kan. 54; 29 Barb. 422; 47 Ark. 497; 76 Ark. 549; 56
Ark. 581. (2) The value of the ferry privilege was not the
measure of damages on the remand of this cause by this court
(84 Ark. 21). The Lakes had no ferry privilege. 25 Ark. 26;
20 Id. 561; Kirby's Dig., §§ 4556-9
3562, 3568-9-70. The question was the value, the usable
value; not mere speculative damages. 57 Ark. 207; 47
Id....