(222 S.W.) branch of the case is ruled by the law as declared by this court in the case of Great Eastern Casualty Co. v. Robins, 111 Ark. 607, 164 S. W. 750, where we held, quoting from the syllabus, that "The term continuous confinement, within the meaning of an indemnity insurance policy, insuring plaintiff against sickness, does not mean that plaintiff must have been confined within the house every minute or hour, and the fact that he went out occasionally for the purpose of taking exercise and fresh air under the instructions of his physicians is not sufficient to prevent plaintiff from recovering in an action on the policy." The court in that case had given an instruction in line with the law as declared above, and we approved that instruction, notwithstanding the fact that there was undisputed evidence to the effect that the insured, though confined to the house by disease, went out for a short time each day, under the directions of his physician, for the purpose of getting sunshine and fresh air. The language of the policy in that case was substantially the same as the language of the policy now before us, except the word "strictly" is used in this policy, but was not used in the policy in the other case. We do not think that the use of that word changes the effect of this clause of the policy. If the language of the policy in the other case was not to be literally construed so as to take the case without its operation because the insured had in fact been outside the walls of the house, we do not think the use of the word "strictly" in the policy now before us would call for a more literal application of the language used. It would be a very unreasonable construction to put on the policy, and would practically nullify the benefits paid for under the policy, to say that because a man was out of the house one time he was not insured against loss. If necessary daily trips to get water and for sunshine under the advice of a physician excluded the insured from the benefits under the policy, then it would follow that a single excursion from the house under any circumstances would have the same effect. The language should have reasonable interpretation to give the policy some effect rather than to nullify it. On the other hand, it does not follow that if it is necessary for the insured to remain out of the house for the purpose of getting fresh air he can claim the benefits of the policy, because the insurer had the right to state the terms upon which its obligation was incurred, and they saw fit, in this instance, to insure only against such diseases as continuously confined to the house. If the disease required the insured to remain outside of the house, rather than to remain in the house, it does not come within the terms of the policy. But short trips away from the and this issue should have been submitted to [5] It is said by counsel for appellee that the additional instruction asked by appellant was not correct, and that therefore the case stood as if appellant had only asked for the peremptory instruction so as to bring it in the operation of the rule in Mulkey v. Railway, supra. Instruction No. 2, requested by appellant, was a substantial copy of the two clauses of the policy, which were self-explanatory. The effect of the instruction, if given, would have been to submit to the jury the question of fact as to whether or not appellant's contention fell within the clause of the policy. [6] It cannot be said that the testimony was undisputed, as there was no other testimony adduced in support of appellee's right of action under the first clause of the policy, and, appellee being an interested witness, the jury was not bound to accept his testimony. Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243; Lilly v. Robinson Merc. Co., 106 Ark. 571, 153 S. W. 820; Harris v. Bush, Receiver, 129 Ark. 369, 196 S. W. 471. Besides, under appellee's own testimony, it was a question for the jury to determine whether or not the disease was sufficient to compel his continuous confinement to the house. If the jury accepted his testimony as true, different inferences might have been drawn from it with respect to the effect of the disease in confining him to the house, except as to necessary trips for the benefit of the water and sunshine. For the error of the court in withdrawing the case from the jury by a peremptory instruction, the judgment will be reversed, and the cause remanded for a new trial. D. Dudley Crenshaw, of Dermott, for appellants. CITY OF DERMOTT et al. v. STINSON. (No. 7.) (Supreme Court of Arkansas. May 24, 1920. Rehearing Denied June 14, 1920.) 1. Adverse possession 33 Evidence held its council, passed a resolution to open a certo show city must have known abutting own-tain common within the city limits. ers were claiming common. The appellee instituted this action against In property owner's suit to enjoin city's the appellants to enjoin the opening of the interference with a claimed common, evidence common. He alleged that he is the owner of held to show that, so far as city was concerned, lots 3 and 4 of the original hamlet of Dermott, it did not recognize that abutting owners had as platted by S. A. Duke, March 30, 1882, any title to the common, but also that title which plat was duly recorded in Chicot counwas in dispute, showing city authorities must have known circumstances, and that abutting ty. He alleged that he occupied these lots lot owners, plaintiff among them, were holding and claiming to own the property, and yet took no steps to oust them. Where a common, on which certain lots abutted, was claimed by each abutting owner, and fenced so that lots extended across common to a street, character of inclosures and holdings was such as to give notice to members of city council that owners of abutting lots were claiming common adversely. 3. Adverse possession 50 Contract between lot owner claiming part of common and city held a recognition of lot owner's rights. So-called contract, executed by a lot own er abutting on a common and claiming to own part thereof, and by the city, concerning the building of sidewalks along the street on which the common abutted, held not a recognition by lot owner of title in city to land comprising common, being rather a recognition by city that lot owner was owner of his part of common, having right to possession. 4. Adverse possession 7 (2)-Possession of common for statutory period gave title. with an additional strip contiguous thereto, as his homestead, and that he and his predecessors in title had been in the continuous, open, and adverse possession of same for more than 35 years, claming to own same. He alleged that the strip of land which adjoined his lots is a part of what was designated in the plat filed by Duke as a "common"; that about the year 1883 by common consent of the owners of the lots adjoining upon said common, the same was inclosed by the respective owners, thus extending their holdings the width of each of their said lots west to the public road, which afterwards was incorporated and became a part of the Main street of the city of Dermott; that until July 8, 1918, no legal steps had ever been taken to question the appellee's title or right to possession of said tract. But on the above date the city of Dermott caused notice to be served upon the appellee to vacate the property and that appellants are now threatening to enter upon and tear down the fence and commit other acts of waste and trespass to the irreparable damage of the appellee. Appellee prayed that the appellants be enjoined and that his title to the tract of land be quieted. The appellants answered and denied the allegations of the appellee's complaint and pleaded that the appellee was estopped by an instrument which he and S. A. Duke, the orig Where a lot owner occupied part of an abutting common from 1883 to 1918, when he was given notice by the city to remove his fence, holding adversely, openly, and continuously, he acquired title by such adverse posses-inal owner and dedicator of the lands then sion for statutory period of 35 years. 5. Adverse possession 109-Lot owner with title to common by adverse possession held not estopped to assert it. Lot owner abutting on common who acquired title to a portion thereof by 35 years' adverse possession held not estopped by accepting from the city an amount expended in the construction of a sidewalk along the street on which the common abutted, and by surrendering the contract concerning the sidewalk, from asserting title to his part of the common. constituting the hamlet, now the city of Dermott, and others signed on March 30, 1882, and which was duly recorded on March 13, 1883. In that instrument it was recited, among other things, that the original plat filed by Duke was a correct plat of the hamlet of Dermott; that the streets, alleys, and commons as designated on that plat shall forever be common property for the use and benefit of the owners of property in Dermott and the public generally; that the streets, alleys, and commons should never be occupied or used Appeal from Chicot Chancery Court; N. B. for any other purpose except by the unaniScott, Special Chancellor. mous consent of every owner of real estate in the hamlet. Suit by H. C. Stinson against the City of The appellee testified that he is the owner Dermott and others. From decree for plain-of lots 3 and 4 in block 4 of the original hamtiff, defendants appeal. Affirmed. let of Dermott abutting on the strip of land (222 S.W.) in controversy; that he had been in the possession of these lots since March 25, 1882, at which time he purchased the same from S. A. Duke and obtained a waranty deed, which he introduced; that he had been in possession of the strip of land in controversy immediately west of his lots and between them and Main street of the city of Dermott since his acquisition of title to the lots mentioned; that he and other parties joined with Duke, the original owner of the lots, in the deed and plat of original dedication to the hamlet of Dermott; that the fence at that date was where it is now; that, a short time after this instrument was signed by him and others, the signers thereof agreed to abrogate the deed of dedication and continue their fences out to the boundary of the public road as it then existed; that at the time of dedication and continuously thereafter the strip of land in controversy has remained inclosed; that the strip of property has been inclosed and held as a part of his property ever since that date; that no attempt had been made by the city to oust him from the possession of the strip in controversy until the summer of 1918; that he used the front of his place, the strip in controversy, for a pasture; that January 10, 1910, he accepted a so-called "contract" from the town of Dermott, which is as follows: "This contract, made and entered into by and between the incorporated town of Dermott and H. C. Stinson, witnesseth: "Whereas, the said H. C. Stinson has caused to be constructed along the west boundary line of that part of the common lying in front and west of lots 3 and 4 in block 4 in the original town of Dermott, owned by him, concrete sidewalk and has paid for the same; "The said town of Dermott hereby agrees to and with the said H. C. Stinson that in the event the said H. C. Stinson should ever be divested of that part of the said common lying west of said lot by any act or consent of said town, then in that event it will repay to said H. C. Stinson any and all sums of money expended in the construction of sidewalk, without interest. "And the said H. C. Stinson hereby agrees on his part that he will maintain said sidewalk and a reasonably good looking fence along said western boundary of said common where same is situated in front or west of his lots 3 and 4 in block 4." Appellee testified with reference to this contract that, when he signed the agreement about the sidewalk, he did not recognize the town's right to the property; that he knew the town claimed it and he claimed it; that he took the money back as a condition of his surrender of the contract; that he thought as long as the town had used his money six or seven years he might use the money himself; that he received notice from the town to move his fence back, but did not emember whether it was before or after ne accepted the money; that he did not move the fence when he accepted the money or when he received notice to move same; that he got out the injunction because he did not intend to give it up; that the north end of the common is occupied by a brick building, and so far as he can tell is standing where the original building stood in 1882 and 1883; that no portion of the common has been open to the public since 1883, and the city has not since that time until the matter of the sidewalks came up in 1910 sought to eject any of the owners from the strip of land dedicated as the common. R. A. Buckner testified that he came to Dermott in 1884, and that at that time the common was occupied out to the street and he knew nothing of its existence for several years; that the appellee and other owners of lots abutting the strip in controversy were then and have since been in possession of same; that it was inclosed and had been occupied since 1884; that appellee claimed the common as his property; that he had never heard the title or right to possession of the common called in question until five or six years ago, when witness was employed as town attorney; at that time some of the council wished to take it, others did not; at that time appellee claimed the common abutting his lots as his own, and witness believed other property owners did likewise; that at the time the question of building the sidewalks was up before the council appellee claimed the property and talked to witness about making defense if the city ever attempted to assert title to the property. Different individuals, among them members of the city council, had talked about whether they ought to take possession of the common or not, but there was never any action taken by the council. Other witnesses testified substantially corroborating the testimony of the above witfar as he knew no owner of property in that nesses. One of the witnesses stated that so plat had ever recognized the right of the public in that land; that he had known the property since 1900; that when the town required the property owners, along the strip in controversy, to put down sidewalks, there was of the town to require that sidewalks be put a question raised at the time as to the right down. Witness asked whether if the property owners should put it down themselves if they could put it back on the line. The city authorities assured witness that there was no danger of the property owners losing their property, but for their protection the city would give them a 99-year lease. The town did not claim the title to the land when it offered them the 99-year lease. Witness only wanted it to settle any dispute that there might be as to the title. Witness J. T. Crenshaw testified for the appellants that he had been a resident of Dermott since 1881; that he had been connected with the city government at various times as alderman, mayor, and recorder, [ mon since the city was incorporated had been since it was incorporated. The strip in con- generally regarded as public property; that troversy was dedicated to the hamlet of Der- he had never heard of a controversy about mott by Maj. Duke, who wanted to put out the property until the one came up with Beltrees on it. Dermott was a small place then, ser; that that part of the common had been and no one took any interest in it. While inclosed all the time witness had resided in witness was a member of the council and Dermott. had charge of the city business, "the common was recognized as belonging to the town, but the people along there recognized it as belonging to them." There were two opinions about it. Witness did not know that the property owners claimed the common as their own. The people there had fenced it and lived there and were using it. The common was always recognized as city property. Witness could not say whether the owners of the lots abutting the common ever recognized it as city property or not. They recognized it as their own property and had it fenced in. There had always been a dispute about it. The city took active steps last year towards the assertion of its rights when they made one Belser move his house up when they found it to be on the parkway. Witness could think of no other assertion of right by the city. Other witnesses, some of them owners of lots abutting the common, testified that they did not claim the common and that in conversation with other abutting owners the right of the city to the common was recognized. The above are substantially the facts upon which the trial court found that the appellee had been in open, continuous, and adverse possession for more than 35 years of the strip of land designated as the common; that appellee was not estopped from setting up title by limitation; and that he had acquired title to the property. The court thereupon entered a decree perpetually enjoining the appellants from interfering with the appellee's possession. From that decree is this appeal. The undisputed testimony shows that in 1882 S. A. Duke, the original owner of the land in controversy, owned a farm in Chicot county, Ark.; that he platted a part of the same into blocks and lots with streets and alleys and a strip of land designated as the public common, of which the land in controversy is a part; that he designated the lands thus platted as the hamlet of Dermott; that on March 25, 1882, he sold lots 3 and 4, block 4, of the hamlet of Dermott to the appellee. Of the lands thus platted he had sold other lots to A. E. Petticord and C. P. Freeman. On March 30, 1882, all of the then property owners of the lands which had been platted by Duke as the hamlet of Dermott signed the instrument set out in the statement, dedicating the streets, alleys, and common to the public of the hamlet of Dermott. That instrument recites that the common thus donated by Duke should never be "occupied, inclosed, or used for any other purpose except by the unanimous consent of every owner of real estate in the said ham Witness Rayborn had lived in Dermott since 1880, during which time he had held all of the offices of the city except treasurer. During his administration there were SO many discussions concerning the common that he could not name any certain time only when the sidewalk was built; that while he was in office the town authorities were never notified that any of the owners of property abutting the common claimed the property inlet." front of their lots as their own, but they all recognized that the town owned it; that he was mayor a long time, the last time in 1913; that in 1918 the appellee said to witness: "This is where Delaney run the line between our property and the city property. He run it a little too close to my house, a little over the line, because the line is where the cedar trees are in front of where Petticord used to live, because Petticord set those cedar trees on the line." Witness further testified that the abutting owners all had good fences on their lines and did not present claim to any of the city property until after the death of Duke; that while witness was connected with the council there was no action taken by the city to open the common, "because there was an agreement for the people to move when they were dissatisfied and wanted the common opened." W. D. Trotter testified that he had lived The appellee testified that, a very short time after the plat was made and the instrument above mentioned was signed by him, the then owners of the property agreed among themselves to abrogate that contract and continue their fences out to the boundary of the public road as it then existed. He states that the parties interested at that time agreed to take what was designated as the common into their lots and hold them as a part of their property. All the other original signers of the instrument are dead. This testimony of the appellee is undisputed. The testimony of the appellee is positive to the effect that there had never been a time since he took possession of the strip of land that it had not been inclosed and held by him as a part of his property. The evidence is undisputed that the possession of the strip known as the common was taken and held by the owners of the abutting lots, (222 S.W.) that these abutting property owners were holding the common adversely to the city of Dermott. All except one of the owners of lots abutting the strip designated as the common testified corroborating the testimony of the appellee that they went into the possession and were holding as their own, and adversely to the city, the part of the strip abutting their lots, and the width of each lot to the public road which is now Main street of the city of Dermott. tween the appellee and the city, designated as a "contract," concerning the building of sidewalks, is not, as we construe it, a recognition by the appellee of title in the city of Dermott to the land in controversy. On the contrary, this instrument appears to us to be rather a recognition by the city of Dermott that the appellee was the owner and had a right to the possession of the property. [4] We conclude therefore that appellee's occupancy of the land from 1883 to 1918, The testimony of the appellee that the when he was given notice to remove his strip designated as the common was held ad- fence, was of such a character as to be enversely by the abutting lot owners is corrob- tirely inconsistent with the idea of mere perorated by witnesses who, it occurs to us, missible possession by the city of Dermott. were in the best situation to know the facts A preponderance of the evidence, on the and who gave the most direct and specific contrary, shows that it was adverse, open, testimony concerning the adverse claim. For and continuous for the statutory period, and instance, J. T. Crenshaw, one of the oldest that he therefore acquired title by adverse residents of the town and who had been possession. Gee v. Hatley, 114 Ark. 384, 170 officially connected with the city govern- S. W. 72. The trial court was correct in so ment ever since it became an incorporated holding. town, testified that "The common was recognized as belonging to the town, but the people along there recognized it as belonging to them." His testimony thus shows that, so far as the city was concerned, it claimed the property as its own, but, so far as the property owners were concerned, they were claiming it as their own property. Likewise, the testimony of Rayborn, who was an old resident and had held all the offices of the city except treasurer, shows that there had been discussions concerning the common in the city council so many times during his administration that he could not name any certain time. [1] The testimony of these witnesses proves clearly that so far as the city was concerned it did not recognize that the abutting property owners had any title to the common, but it also as clearly shows that the matter was in dispute. It clearly shows that the city fathers must have known the circumstances and have known that the abutting lot owners were holding and claiming to own the property, and yet took no steps to oust them from possession and to open the common to the public until notice was served upon them in 1918 to remove their fences. [2] The testimony shows that the so-called "common" was not inclosed by the property owners by one common fence, but that each had the part claimed by him in a separate inclosure extending his lot its entire width to Main street of the city of Dermott. The character of these inclosures and holdings was such as to give notice to the members of the city council that the owners of abutting lots were claiming the strip designated as the common adversely. If [5] We are also convinced that, after having acquired such title, appellee was not estopped by accepting from the city of Dermott the amount that had been expended in the construction of the sidewalk and surrendering the contract concerning same. we are correct in our view that appellee had acquired title by adverse possession, then appellee's contract with Dermott concerning the sidewalk would not operate to divest him of the title and invest title in the city. Such was not the purport, nor the effect, of that "contract." Hudson v. Stillwell, 80 Ark. 575-578, 98 S. W. 356. See, also, Broad v. Beatty, 73 Ark. 110, 83 S. W. 339; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; Turquett v. McMurrain, 110 Ark. 197, 161 S. W. 175; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399. The decree is correct. 2. Courts 185-Where objections to report of county treasurer, confirmed by judgment, were not disposed of during term, action was final, and objectors could appeal. Where county court, on objections to county treasurer's report, did not set aside a judgment confirming the treasurer's accounts, but continued the cause until another day of the same term for further testimony, and the term [3] The instrument of January 10, 1910, be-lapsed without the petition having been heard, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |