Myers v. Hawkins

Wood, J.,

(after stating the facts.) The complaint alleges that plaintiffs will suffer irreparable loss from the acts complained of, but there is nothing in the proof to show that the alleged trespass or trespasses of the defendant tended to the irreparable injury of the property—nothing to show that these acts rendered the freehold less susceptible of enjoyment, or that the trespasses were of a nature to constitute a nuisance. There was no allegation or proof of the insolvency of the defendant—nothing in fact in the complaint or proof to show that the plaintiff did not and do not have a complete and adequate remedy at law. In Ellsworth v. Hale, 33 Ark. 637, this court said: “The distinction is obvious between such continued acts as render the corpus of the freehold less fitting for enjoyment,—such as turning water upon it, obstructing the light, or infecting the air,—and mere acts of aggression and injury,—such as pulling down fences and the like. Ia the former class of cases there arises a nuisance which maybe enjoined. In the latter there are mere trespasses, which, however often repeated, may be each time remedied by action.” The injury here complained of, as alleged and proved, belongs to the latter class. See Coulson v. White, 3 Atk. 21; Hatcher v. Hampton, 7 Geo. 48,—cited by Justice Eakin in case supra.

Moreover, it is clear that the appellee has no title whatever to the timber in question. The' Board of Directors of the St. Francis Levee District had no power to authorize the sale of timber on lands belonging to said district. The statute provides: “The said Levee District may sell said lands for the minimum prices of $2.50, $1.50 and fifty cents per acre as to grade, * * * * and the treasurer of the levee board of said district, upon the receipt of payment of any part or parcel of said lands, shall certify same to the president of said board, who shall execute a deed in the name of said corporation to the purchaser of said lands.” Acts 1893, p. 173, § 1. The express power here conferred upon the district is to sell the land, but there is no power granted to sell the timber, separate and apart from the land. It is not pretended that the board, acting as such, conferred upon Peterson Jackson the authority to sell timber. It is only claimed that the district, having received the proceeds of sales of timber made by Peterson Jackson, is estopped to deny his authority to make such sales, upon the doctrine of ratification. But even if the board had expressly authorized such sales, such act would have been ultra vires and utterly void. There can be no ratification of an act ■which was beyond the power of the board to perform. Newport v. Railway Co., 58 Ark. 270; Carson v. St. Francis Levee District, 59 Ark. 513.

The board is authorized to sell the lands belonging to the district. The St. Francis Levee District, by a regular conveyance in due form, sold the lands in controversy to a firm of which appellants were the members, thereby conferring upon them the legal title to the lands. As the firm of appellants has tbe legal title, their remedy at law is adequate and complete. They can sue in ejectment for possession of the land, recover the timber already cut, and that may be cut, in replevin, if it can be found, and, in case the timber already cut has been removed and cannot be found, they can recover its value; for it does not appear that appellee is insolvent.

We see no warrant for tbe interposition of a court of chancery, and the decree of the chancery court of St. Francis county is therefore affirmed.

Bunn. C. J., dissenting.