James v. Miles
| Decision Date | 02 May 1891 |
| Citation | 16 S.W. 195,54 Ark. 460 |
| Parties | JAMES v. MILES |
| Court | Arkansas Supreme Court |
APPEAL from Clark Circuit Court, RUFUS D. HEARN, Judge.
Judgment affirmed.
Atkinson Tompkins & Greeson for appellant.
Force is the gist of an action of forcible entry and detainer. Implied force is not sufficient. 38 Ark. 257; 38 id., 584. The proceedings show this to be an ordinary action of unlawful detainer, and the relation of landlord and tenant must exist or the action will fail. 31 Ark. 296; 33 id., 682. The tram in controversy was held under a mere license passing no interest in the land, and there could be no relation of landlord and tenant. 19 Ark. 32-33; 1 Washb., R P., sec. 9, p. 664. While title is not involved, it is admissible to introduce evidence of title to show right to possession. 77 Am. Dec., 550, and note.
Murry & Kinsworthy for appellee.
The testimony shows the relation of landlord and tenant. The agreement of the parties must determine the relation between them. 48 Ark. 415. The pleadings show this to be an action of unlawful detainer.
The appellant built a tramroad, under a verbal contract with Jacob Kern, from the saw mill of said Kern to the railroad. The agreement between him and Kern, was, as shown by the evidence of the witnesses, that Kern should furnish the material, and that appellee should build the tramway and have the use of it for five years, and Kern should pay him stipulated prices, according to the character of the lumber, for hauling lumber from the mill to the railroad. Afterwards Kern's mill fell into the lands of a receiver, who was to and did have it sold.
Appellee wanted to buy the mill at the sale and, learning that the appellant had some claim to the tramway, he sought him and entered into an agreement with him, orally, that the appellant should haul all the lumber cut at the mill, if appellee should buy it, for one year, over the tramway, and that appellee should pay him an agreed price for the hauling, and that appellant would surrender possession of the tramway to appellee after the expiration of the one year. Appellee then bought the mill and tramway. When the year expired, the appellant refused to deliver possession of the tramway, and appellee brought this suit of unlawful detainer, recovered judgment for possession of the tram, from which this appeal was taken.
Appellant denied leasing the tramway from appellee, but admitted that he had grown tired of the tramway and had agreed to surrender the possession of it to the appellee, after the expiration of one year, if appellee would pay him what he had been receiving for hauling lumber over it, provided he should be paid an amount which he claimed Kern owed him. Appellee said in his testimony that he did not agree to pay appellant what Kern owed him, and that its payment was not a condition upon the performance of which the surrender of possession of the tramway by appellant to him was to depend.
The cause was tried before a jury, which found for the appellee. We think there was evidence to warrant a finding that appellant built the tramway for Kern, and that h...
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