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MCMILLAN v. MALVERN GRAVEL COMPANY

December 20, 1955

JOSEPHINE MCMILLAN, PLAINTIFF,
v.
MALVERN GRAVEL COMPANY, A CORPORATION, AND MALVERN AND OUACHITA RIVER RAILROAD COMPANY, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

This case was tried to the Court, without a jury, on November 16, 1955, and at the conclusion of the trial the Court took the case under advisement pending receipt of briefs from the parties. The briefs have been received and the case is now ready for final disposition, and the Court, having considered the pleadings, ore tenus testimony of the witnesses, exhibits, stipulations, interrogatories and answers thereto, and briefs of the parties, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

1.

The plaintiff, Josephine McMillan, is a citizen and resident of Hot Spring County, Arkansas.

The defendant, Malvern Gravel Company, is a corporation organized under the laws of the State of Delaware and is authorized to do business in Arkansas. It is engaged in the processing and sale of sand and gravel within the State of Arkansas, with its principal office at Malvern, Hot Spring County, Arkansas.

The value of the rights and things in controversy and to be adjudicated in this action exceeds the sum of $3,000, exclusive of interest and costs.

2.

On January 10, 1919, the heirs of the estate of J.W. Keith, deceased, executed a lease to J.J. Ball leasing: "all the gravel bar within certain lands lying and being situated in Hot Spring County, and State of Arkansas, to-wit:

    "North West quarter of the South West quarter
  of Section Sixteen, (16), East and West of the
  Ouachita River, and all gravel in Section
  Seventeen (17), Township Four (4) South, Range
  Seventeen (17) West, lying East and West of the
  Ouachita River.
    "Party of the second part is to construct a
  Railroad track to said gravel bed on or before
  December 31st, 1919, but the second party is not
  to excavate closer than fifty feet to high bank
  on the South side of gravel bar East of the River
  in
    "The South East quarter of the South East
  quarter of Section Seventeen (17).
  and not to excavate closer than two hundred feet
  of the South line of the
    "South West quarter of the South East quarter
  of Section Seventeen (17)."

Apparently J.J. Ball made no attempt to take gravel from the property covered by the lease, and on June 29, 1928, the lessors canceled the lease since no payments had been made or tendered to them by J.J. Ball.

3.

On December 23, 1926, George C. Miller purchased by warranty deed the hereinafter described lands from James F. Hall and Amanda Hall, the deed being recorded in Hot Spring County Deed Record Book 47 at page 104 thereof:

    "The West Half (W 1/2 ) of the Northeast
  Quarter (NE 1/4) of the Southwest Quarter (SW
  1/4) of Section Sixteen (16) Township Four (4)
  South, Range Seventeen (17) West, containing
  twenty (20) acres, more or less."

4.

George C. Miller died intestate on February 13, 1928, seized of said lands and left surviving him his wife, Mattie Miller, and the following named heirs at Law: Harry B. Miller, John E. Miller, and Archie Harrison, children by his first wife; and Edna M. Jordan, James M. Miller, Jewell M. McHenry, Jennie M. Williams, Kathleen M. Stinson, George C. Miller, Jr., and Robert P. Miller, children by his second wife, being the said Mattie Miller.

5.

Thereafter and on the 22nd day of March, 1928, Harry B. Miller and Lillie E. Miller, his wife, John E. Miller and Wordie L. Miller, his wife, and Archie M. Harrison and husband, B.E. Harrison, conveyed all of their rights, title and interest in and to the said lands to Mattie Miller by warranty deed which is recorded in Hot Spring County Deed Record Book 48 at page 595 thereof.

6.

On April 8, 1929, Mrs. Jennie S. Keith, widow of J. W. Keith, and several other Keith heirs executed a "Sand and Gravel and Right of Way Lease" to H.F. Riley, J.J. Ball, and Frank McGillicuddy. The lease was for a period of 20 years and covered the following lands:

    "All lands owned by the lessors, containing
  gravel, in Sections Sixteen (16), Seventeen (17),
  and Twenty-One (21), in Township Four (4) South,
  Range Seventeen (17) West."

The lease provided that the lessees should, inter alia, establish a gravel washing plant, and in this connection the lease provided as follows:

    "It is agreed that the establishing of a gravel
  washing plant upon the West Half of the Northeast
  Quarter of the Southwest Quarter (W 1/2 NE 1/4 SW
  1/4) of said Section Sixteen (16), being land
  sold to George Miller, shall be deemed a
  sufficient compliance with the agreement to build
  and maintain a washing plant upon the leased
  land * * *."

The lease further provided:

    "The lessees are granted the right, during the
  existence of this lease, to mine, excavate and
  remove all gravel, both river gravel and hill
  gravel, which may be located upon same. This is
  to include all river gravel which may accumulate
  on said leased lands during the period of this
  lease."

7.

On the 25th day of May, 1929, an instrument which the defendant contends is a real estate lease covering the above described lands was executed by Mattie Miller in her own right and as guardian of George C. Miller, Jr. (George Miller) and Robert P. Miller (Patrick Miller), and by Edna Jordan, Jim Miller, Jewell McHenry, Jennie Williams and Kathleen Stinson, to Frank McGillicuddy, Trustee, lessee, his heirs and assigns. This instrument was recorded on the 16th day of July, 1929, in Hot Spring County Record Book 51 at page 515 thereof, and reads as follows:

"Real Estate Lease

    "This Lease, made and entered into this the
  25th day of May 1929, by and between Mattie
  Miller in her own right and Guardian of George
  Miller and Patrick Miller, Edna Jordan, Jim
  Miller, Jewell McHenry, Jennie Williams, Cathline
  Stinson, Parties of the first part, and Frank
  McGillicuddy, Trustee, his heirs and assigns,
  party of the second part. Witnesseth:
    "That for and in consideration of the sum of
  $150.00 Dollars payable yearly in advance party
  of the first part does hereby lease, let and by
  these presents deliver possession to the said
  Frank McGillicuddy, Trustee, his heirs and
  assigns for the term of ten years the following
  described lands lying in the County of Hot Spring
  and State of Arkansas, to-wit:
    "The West Half of the Northeast Quarter of the
  Southwest Quarter of Section 16 Twp. 4 S, R. 17
  West. and the said Frank McGillicuddy, Trustee,
  his heirs and assigns shall have the right to
  build railroad tracks upon said lands in the
  operation of a gravel washing plant, and at the
  expiration of this Lease shall have the right to
  remove from said lands all railroads and
  equipment of

  whatsoever kind that may be placed on said lands.
    "It is further agreed by and between the
  parties of the first part, and the party of the
  second part that should the party of the second
  part desire to do so he shall have the right to
  extend this lease from year to year beyond the
  term of ten years, until the said Frank
  McGillicuddy his heirs and assigns shall remove
  all gravel and sand out of the gravel pit known
  as the Keith pit, by the payment of the sum of
  $150.00 Dollars per year as herein provided.
    "That the party of the second part shall have
  the right to terminate this lease at any time
  after the expiration of five years by giving the
  parties of the first part thirty days notice in
  writing.
    "It is further agreed by and between the
  parties of the first part and the party of the
  second part, that should the party of the second
  part sell or remove any gravel or sand from the
  above described premises, the party of the second
  part shall pay once each month to the Bank of
  Malvern, Malvern, Arkansas, to be paid out by
  said Bank to the parties of the first part as
  their interest may appear Five Cents per cubic
  yard 3000 lbs. to the cubic yards, for each cubic
  yard of gravel or sand removed from said lands.
    "To which Lease and Agreement we and each of us
  have hereunto set our hands and seal this the 25
  day of May 1929.
                "Mrs. Mattie Miller
                "Edna Jordan
                "Jim Miller
                "Jewell McHenry
                "Jennie Williams
                "Kathleen Stinson
  "State of Arkansas,
  "County of Hot Spring.
    "Be It Remembered, That on this day came before
  me, the undersigned a Notary Public, within and
  for the County aforesaid, duly commissioned and
  acting Mattie Miller to me well known as the
  grantor in the foregoing Lease, and stated that
  they had executed the same ...

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