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
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
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.
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
"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
"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.
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."
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.
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.
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
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:
"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
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
"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
"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 ...