Western Union Telegraph Company v. Bush

• Citation: 89 S.W.2d 723,191 Ark. 1085
• Decision Date: 23 December 1935
• Docket Number: 4-4187
• Parties: WESTERN UNION TELEGRAPH COMPANY v. BUSH
• Court: Arkansas Supreme Court

89 S.W.2d 723

191 Ark. 1085

WESTERN UNION TELEGRAPH COMPANY v. BUSH

4-4187

Supreme Court of Arkansas

December 23, 1935

Prohibition to Clark Circuit Court; Dexter Bush, Judge; writ granted.

Writ issued.

W R. Donham and Rose, Hemingway, Cantrell & Loughborough, for petitioner.

Malcolm T. Garner, A. G. Meehan, Jno. W. Moncrief, J. H Lookadoo and Sam T. & Tom Poe, for respondent.

BAKER J. HUMPHREYS, J., dissents.

OPINION

BAKER, J.

C. J. Singleton and Frank Lester filed separate suits in the circuit court of Clark County to recover damages for alleged loss of crops of corn and cotton growing on certain lands in Pulaski County, Arkansas. Singleton was the owner of land and Lester was a tenant. It was charged in the complaints, in each case, that the defendant, Western Union Telegraph Company, cut a certain levee nearly or about a mile west of the lands owned and cultivated by the parties suing it, by digging a hole down into the levee and inserting therein a pole for the suspension of its lines, and that this placing of the pole in said levee caused the levee to break by weakening or destroying its resistance to the pressure of the flood waters caused by rain occurring on July 4th and 5th, 1932. The pole was put into the levee some time in April prior to the date of the break in the levee.

For a more elaborate or detailed statement in relation to the facts, reference is made to the case of Western Union Telegraph Company v. Turner, 190 Ark. 97, 77 S.W.2d 633. The case just mentioned grew out of the same alleged act of negligence on the part of the defendant, the same break in the levee and the injuries complained of are damages to crops on lands either near or adjacent to lands occupied and cultivated by the plaintiffs, Singleton and Lester, who filed their suits in the circuit court of Clark County.

The question that arises upon this petition for a writ of prohibition is the question of venue raised in the circuit court by motion to quash the service of summons. Motion being overruled, the defendant, Western Union Telegraph Company, upon being required to answer, filed the petition here under consideration. The petitioner asserts that the cause of action of these parties is a local action, the venue of which must be in Pulaski County, where the lands are situated, and that, for the destruction of the growing crops, as sued for, the action cannot be transitory. The respondent ruled adversely to this petitioner, and now defends this proceeding, upon the theory that the growing crops were chattels, and that the action is therefore transitory.

The petitioner relies primarily upon § 1164 of Crawford & Moses' Digest, which is § 84 of the Civil Code. It reads as follows:

"Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated:

"First. For the recovery of real property, or of an estate or interest therein.

"Second. For the partition of real property.

"Third. For the sale of real property under a mortgage, lien or other incumbrance or charge.

"Fourth. For an injury to real property."

Counsel for respondent, with more than extraordinary diligence, energy and powers of research, have furnished us with an elaborate array of authorities, either directly in point upon this vexing question or by analogy, pointing to the conclusions that they have drawn.

They call our attention to several legislative enactments of our State relating to crops, which statutes furnish, at least, a somewhat plausible ground upon which argument may be based to support the conclusions they would have us reach. One of these is a statute making legal mortgages upon crops. The ordinary crop mortgage, under this statute, c. 125, Crawford & Moses' Digest, is not different from the ordinary chattel mortgage, nor is the registration by filing different. This statute, however, though it may treat crops as chattels, does not expressly declare them to be such, but they may be so regarded when mortgaged without impairing any of the well-known tests as to certain attributes of real estate. The mortgage on a crop may be treated as a constructive severance. Any sale of a growing crop, not in contravention of the statute of frauds, would amount to constructive severance.

We think there could be little difference of opinion about severance of products from the soil, and that after severance they become movables and are therefore chattels, but it is equally true that there may be a constructive severance by which articles may thereby become chattels as one might sell or transfer a house, with the privilege or right of removal. The sale of fruit upon the trees by contract of the parties would be a constructive severance, and what had been prior to the contract a part of the realty would become chattels in legal effect. Cannon v. Matthews, 75 Ark. 336, 87 S.W. 428, 69 L. R. A. 827, 112 Am. St. Rep. 64.

We are cognizant of the arguments in the opinion in the cited case, but since the case arose out of the sale of strawberry plants, we suggest that perhaps the respondent has minimized the effect of the consequent constructive severance. The writer of this opinion was following the same theory as the respondent in the case of Lee v. Bandimere, 140 Ark. 277, 215 S.W. 635. There were two of these cases wherein Bandimere was plaintiff against Lee as defendant, in the first of which Bandimere sued in replevin for the crops. His second suit was a suit in ejectment. Bandimere got possession of the crops under his replevin suit, but this suit was dismissed for lack of jurisdiction, and the court was deemed to be without power to order a return of the severed crops. Bandimere won his ejectment suit and claimed the crops as a part of the real estate recovered by him. Lee claimed no right of possession to Bandimere's land. Bandimere was a resident of Colorado, and, during the interval of three or four years, had no one in charge of or looking after his property. During this interval Lee entered and lived upon it without right, planted and grew the crop in controversy in 1916. There was no constructive severance here as between Lee and Bandimere by mortgage or other kind of agreement, though Lee had mortgaged the crops to Hamilton. Lee secured the dismissal of the replevin suit, and, because of the fact there was no order for the return of the property, appealed to the Supreme Court. This fact appears on page 280 of the cited case. The dismissal was by a per curiam order, and is noted in 135 Ark. 617, 204 S.W. 307. Hamilton was unable to enforce his mortgage against Bandimere.

Blackstone, in his first paragraph of chapter 2, Book II, says: "The objects of dominion or property are things, as contradistinguished from persons; and things are by the law of England distributed into two kinds; things real and things personal. Things real are such as are permanent, fixed and immovable, which cannot be carried out of their place; as lands and tenements; things personal are goods, money, and all other movables; which may attend the owner's person wherever he thinks proper to go." Vol. 1, Lewis' Blackstone, 481.

Again it is interesting to note in chapter 25, Book II, Blackstone, 389, in a definition of "things personal" and an illustration thereof by the author, we find this expression: " (3) Such may be all inanimate things, as goods, plate, money, jewels, implements of war, garments, and the like; such also may be all vegetable productions, as the fruit or other parts of a plant, when severed from the body of it, or the whole plant itself, when severed from the ground." Vol. 1, Lewis' Blackstone, 848.

In our attempt at a solution of this problem, we will not be able to analyze and discuss all of the citations presented to us, and most naturally we forego a discussion of those of other jurisdictions, particularly, on account of the fact, that we believe a proper presentation and understanding of our own decisions will work a satisfactory settlement and determination of the controversy.

From a reading of the excellent brief furnished us we believe that counsel for respondent have suffered themselves to be led into error from an unsound or false theory that a trespass quare clausum fregit must necessarily be accompanied by some degree of force as they have argued in one case of proposition of cattle breaking an enclosure.

It is argued also that the telephone pole, inserted in the levee, which, it is alleged caused the break, was more than a mile distant from the lands where the crops were growing, which crops are the subjects of these suits; that, therefore, there was no "breaking of the close." That conclusion however does not necessarily follow. However we shall not enter upon a technical discussion of all the various matters constituting wrongs wherein the remedy was found in the old form of trespass quare clausum.

Although all those forms of actions and suits formerly existing were abolished by our Code, (§ 1030, Crawford & Moses' Digest), it is sometimes necessary, or at least somewhat more convenient, to recognize some of these ancient forms, in order that a better understanding may be had of the remedy as it then existed for an alleged wrong, and of the remedy now for the same wrong. We think it is not necessary that the wrongdoer must have been personally present or even present by some person as an agent at the point or place of actual injury. It is sufficient if the wrongdoer actually set in motion some dangerous agency which in itself, though far distant from the wrongdoer, inflicts a wrong, such as a "breaking of the close," and for such trespass relief is granted.

Any other theory would absolve the guilty and permit the wrongdoer to escape only by reason of shrewdness,...