physical impossibility for any oil or gasoline | flowed into the well was from appellant's to have gotten over in that well from an tanks, and the only way in which it could earth stratum or from the surface. From have gone into the well was by penetrating witness' idea and experience in the gasoline and going down through some vein into the business, he contended that no pure gasoline well. The court found that the appellee had could have gotten over to that well through been damaged in the sum of $200, and renthe strata of earth unless there was a pipe ordered judgment in his favor for that sum, something else. If it was wasted or poured from which is this appeal.

out there it would flow off of the surface [1] The court erred in finding that appeland down the ditch and evaporate. Gaso lee's well was ruined by the flow of gasoline line will not penetrate more than an inch or into same and in giving the appellee damtwo on account of evaporation. Coal oil ages as for a permanent destruction of his would stay longer and penetrate deeper. property. The fact that on two occasions Witness, in answer to a question, stated the gasoline flowed into appellee's well from that he did not think it was possible for gas- the defects in appellant's pumping machinery oline to have soaked down in the ground and which rendered the water in the well at to have struck a vein and flowed down into those times unfit for use would hardly justhe well. Witness was positive about that. tify the court in finding as a matter of law Another witness testified on behalf of the that the well was permanently destroyed. appellant that he was the agent in charge | While the proof was to the effect that on the of the appellant's plant at Mena in 1919 and 1920 on the occasion that the pump broke. At that time they lost about 10 gallons of gasoline. All that spilled was what was in the pumps after they took them apart to repack them. The gasoline did not hardly get the ground wet around there. The pump was on a cement base, and it just barely ran off of the cement base. On another occasion there were about 25 or 50 gallons of oil spilled around the pump. It was not close to the time when the gasoline was wasted. Witness was not there in 1918, the two years prior to July, 1920, when they claimed that gasoline was wasted. But in July, 1920, witness knew that not exceeding 10 gallons of gasoline were wasted when the pumps got out of fix.

first occasion the appellee endeavored to remove the gasoline from his well and was unable to do so, and on that occasion the party who was sent down into the well to dip out the water from the bottom was overcome by the fumes and had to desist, yet these facts are not undisputed proof of a permanent damage to the well. The testimony on behalf of the appellant is undisputed that gasoline is a volatile liquid and would quickly evaporate in the air and be readily absorbed by the earth into or over which it flows. Therefore, even though the testimony would have justified a finding that the well on the two occasions mentioned was rendered unfit for use by the overflow of gasoline from the appellant's pumps, there was no testimony to warrant a finding that this condition was

Other witnesses also for the appellant tes-permanent. There was no testimony to wartified that in 1920 a very small amount of gasoline escaped when the pumps were being repaired.

In rebuttal the appellee testified that in July, 1920, appellant's pump or some part of it burst, and the natural flow of the gasoline from the tank to the pumps was running out on the concrete at the pump and spattering off on the ground. There was no one there to take charge of it, and appellee did not know how long it had been running. The pump ran all night. Part of the time there was no one there. Appellee in passing saw that the door was shut and locked and the pump running. The next morning at the time the appellee saw the gasoline flowing around there was no one there.

rant a finding that the defect in the appellant's pumps was a permanent condition. On the contrary, the testimony only tended to prove that the overflow of gasoline into the appellee's well took place on two occasions, and something like two years intervened between the first and second overflows.

[2] Since under the undisputed testimony gasoline is a volatile liquid and one readily absorbed in the earth, and since it had flowed into the appellee's well only on two occasions, and since the defect in the appellant's pumping machinery was not such as to cause a constant flow of gasoline into appellee's well, it was obviously contrary to the laws of nature, and the physical facts as shown by the testimony, to conclude that the injury and damage to appellee's property were permanent and continuous, and to allow damages on the theory that the well was wholly destroyed. Waters-Pierce Oil Co. v.

In rebuttal a witness for the appellant in charge of the pump testified, denying that the pumps were left running at night without any one in charge; that they never pumped there at night. The trial court vis-Knisel, 79 Ark. 608, 96 S. W. 342; 8 A. L. R. ited the premises.

Upon substantially the above facts the court found that the well was ruined by a flow of gasoline into it, and that the only source from which the gasoline could have

798, note 2, and other cases in note to Kelly v. Jones, 8 A. L. R. 792 It appears from the testimony, as already stated, that the inherent physical nature and quality of gasoline is such that it would soon evaporate into

(238 S.W.)

the air or be absorbed in the ground; that it The message should have been dated Linis a lighter liquid than water. Therefore, coln, Ark. The plaintiff immediately wired unless the source of its flow was perennial, J. A. Miller at Lincoln, Neb., that she would it could not have permanently destroyed ap- leave on the first train for that place. She pellee's well, because when the water was purchased a ticket for Kansas City, Mo., and drawn off the gasoline also would be drawn proceeded on her way. While on board the off. Hence the measure of appellee's damage train in the state of Kansas, she received a was not as for a total destruction of his well message from a friend in Dardanelle advisand the cost of digging another one, as the ing her that a mistake had been made in the learned trial judge found, but the expense telegram and for her to return to Lincoln, which appellee would necessarily have to in- Ark. She immediately returned to Lincoln, cur in order to restore his well to its former Ark., but arrived there 26 hours later than use. We are convinced that the testimony she would have done had the mistake not did not justify the court in finding as a mat- been made. She suffered great mental anter of fact that appellee's well was wholly guish on account of the delay. She found destroyed and in declaring as a matter of her father seriously ill and he died in a few law that he was entitled to damages as for days. She paid out in extra railroad fare a permanent and total destruction of his the sum of $30. property. The judgment is therefore reversed, and the chief operator of the Western Union Tele the cause remanded for a new trial.

1. Commerce 28-Transmission of telegram between points in one state over route passing out of state is "interstate business." Transmission of a telegram between two points in the same state over the ordinary route passing out of the state is interstate business, preventing recovery for mental anguish because of negligence in transmission.

[Ed. Note.-For other definitions, see Words

state Business.]

According to the testimony of T. D. Daniel,

graph Company at Muskogee, Okl., the message in question was received through his office. The message was sent from Lincoln, Ark., to Muskogee, Okl., and was relayed to Kansas City, Mo. From Kansas City, Mo., it went to Little Rock and from Little Rock, Ark., to Russellville, Ark. It then was sent by telephone by the company from Russellville to the plaintiff at Dardanelle. The message followed the established route of the company which had been customary for a large number of years. The Western Union Telegraph Company has a line of poles from Lincoln, Ark., to Fayetteville, Ark., but it has no connection out of Fayetteville. It has a line of poles from the north running through Fayetteville to Ft. Smith, Ark., but

there is no connection between the two lines.

and Phrases, First and Second Series, Inter-It also has wires on poles from Ft. Smith, Ark., to Russellville, Ark., but they are cut out of the board at Russellville. If the message 2. Courts 97(5)-Federal court to be fol- had been sent from Lincoln, Ark., to Fayette

lowed in construction of Interstate Commerce Act.

It is the duty of the Supreme Court of a state to follow decisions of the Supreme Court of the United States in the construction of the federal Interstate Commerce Act.

ville, it would still have been transmitted to Muskogee and through Kansas City and Little Rock to Russellville. There is no physical connection between Russellville and Ft. Smith. The routings that are fixed and used for messages are for the purpose of facilitat

Appeal from Circuit Court, Pope County; ing or expediting the amount of traffic for A. B. Priddy, Judge.

Action by Fay Shannon against the Western Union Telegraph Company. From an adverse judgment, plaintiff appeals. Affirmed.

the benefit of all the offices concerned, and also to save operating expenses. It was also shown by the manager of the Western Union office at Lincoln, Ark., that all messages from that place, except local business, takes the

Fay Shannon sued the Western Union Tele-route through Muskogee. graph Company to recover for mental an- The court directed a verdict for the plainguish caused by its negligence in transmit- tiff in the sum of $30, being the amount tenting a telegraphic message. The message, which was delivered to the plaintiff at Dardanelle, Ark., was as follows:

"Lincoln, Nebraska, 11 a. m. February 6th, 1921. 9-1-exa.Rush. Miss Fay Shannon, Dardanelle, Ark. Your father bad sick. Come at once. Answer. [Signed] J. A. Miller. 11:55 &. m."

dered to the plaintiff by the company. From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

John B. Crownover, of Dardanelle, for appellant.

Francis R. Stark, of New York City, Calvin Sellers, of Morrillton, and Rose, Hemingway,

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Cantrell & Loughborough, of Little Rock, for the demurrer was overruled, that defendant appellee.

The facts in the present case are in all Action by G. O. Duffey and others against essential respects precisely similar to the T. A. Gray, County Judge, to restrain the enfacts in that case, and it is our duty to forcement of orders fixing rates of tolls for follow the decision of the Supreme Court ferries. From a judgment overruling a deof the United States in the construction of murrer to the complaint and making perthe Interstate Commerce Act passed by Con-petual a temporary restraining order, defendgress (24 Stat. 379). The ruling of the trial court was in accord with the rule announced by the Supreme Court of the United States, and damages for mental anguish are accordingly not recoverable.

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(238 S.W.)

chancery court overruling a demurrer to the the county court, without objection, in the complaint and making perpetual the tempo- case of Covington v. St. Francis County, 77 rary restraining order issued at the com- Ark. 258, 91 S. W. 186. mencement of the action.

[1] It is contended by counsel for appellees, in the first place, that the decree is not final and appealable. The decree recites that the parties appeared and appellant presented a demurrer to the complaint; that the demurrer was heard by the court and overruled; that appellant stood upon the demurrer, refused to plead further, and saved his exceptions to the ruling of the court; and that it was "ordered and decreed that the temporary order heretofore issued herein be, and the same is hereby, made perpetual." The record also recites that the defendants prayed an appeal to the Supreme Court, which was granted.

[2] We are of the opinion that the decree was final and that an appeal was properly prosecuted therefrom. It is true that the record entry of the decree does not show what the terms of the restraining order were, but the order was a part of the record in this case and the decree must be read and interpreted in the light of the temporary order, which was as much a part of the record as the decree itself. The only omission was the failure to award costs, but that did not affect the finality of the decree. The perpetuation of the temporary order was necessarily final in its nature.

[4] Again, it is contended that, even if the Constitution as originally written conferred jurisdiction on county courts in such matters as the regulation of ferries, it was taken away by the adoption of Amendment No. 2, which authorizes the creation of a commission "to correct abuses and prevent unjust discrimination and excessive charges by railroads, canals and turnpike companies for transporting freight and passengers." This amendment has no application to the control of ferries, at least the language is not sufficiently explicit to be construed as an abrogation of the provision in section 28 of article 7, quoted above.

Counsel for appellees cite, in support of their contention that fixing ferry rates does not invade the jurisdiction of the county court, our recent decisions, beginning with Sallee v. Dalton, 138 Ark. 549, 213 S. W. 762, holding that the creation of improvement districts for the purpose of improving public roads is not an invasion of the constitutional jurisdiction of county courts over roads. There is, we think, no analogy between the two questions, for the improvement of public roads does not displace the authority of the county court over the subject of public roads. On the other hand, the attempt on the part of any other agency to fix ferry tolls is es

within the powers of the county court.

[3] The main question in the case is wheth-sentially a regulation which falls clearly er or not the power to fix ferry tolls is vested in the county court by the Constitution, or in the Railroad Commission by the recent statute creating that Commission. Act No. 124, Acts of 1921, p. 177.

The Constitution (article 7, § 28) provides that "county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants," etc. Section 5 of the act of 1921, supra, attempts to confer jurisdiction on the Railroad Commission in "all matters pertaining to the regulation and operation of * * toll bridges, ferries, steamboats," etc.

It is claimed that the provision of the Constitution quoted above relates merely to jurisdiction to establish ferries, which said jurisdiction is conferred upon the county court, but that the Legislature was left free to provide any agency it saw fit to regulate rates. We do not agree to this interpretation of the constitutional provision, which in plain terms confers jurisdiction on the county court "in all matters relating to county taxes, roads, bridges, ferries," etc. This undoubtedly in'cludes the regulation of ferry rates because it is a part of the control of ferries. It was the plain purpose of the framers of the Constitution to place within the jurisdiction of the county court all control and regulation of ferries. The jurisdiction was exercised by

Our conclusion is that the decree of the chancery court was erroneous, and the decree is therefore reversed, and the cause remanded, with directions to sustain the demurrer to the complaint.

STEPHENSON v. LEWIS. (No. 204.) (Supreme Court of Arkansas. March 6, 1922.)

I. Depositions 76-Where delivered by the attorney to the clerk unsealed in violation of statute, are prima facie inadmissible.

Crawford & Moses' Dig. § 4236, directs that depositions shall be directed and forwarded to the clerk of court, and the action of the atclerk unsealed in violation of this statute rentorney in delivering these depositions to the ders them prima facie inadmissible, and, where there appears in the record no showing to remove this presumption, it was error to overrule a motion to suppress the deposition. 2. Landlord and tenant 262(4)-In suit to enforce a landlord's lien against crop, evidence held insufficient to support decree for defendant.

In an equity suit to enforce a landlord's lien against proceeds of a crop, where the depositions of the defendant and his wife should have been excluded, held, that the remaining

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evidence was insufficient to support the de- contract on that account to provide for an cree rendered for the defendant.

3. Landlord and tenant

245-Landlord's lien held to apply to money rent for remainder of land as well as grain rent for the cultivated lands.

A landlord's lien exists on all crops to secure all the rents, under Crawford & Moses' Dig. § 6889, 'where the contract was an entire one and the rent reserved was an agreed share of the crop grown on the lands cultivated, money rent for the remainder, the lien exists for the payment for the remainder of the land as well as for the payment of the agreed share of the crop.

4. Landlord and tenant 245-Landlord's lien for money rent is not defeated because liability therefor attached upon contracted contingency.

A landlord's claim for money rent is not defeated because liability therefor attached upon the happening of the contingency contracted against, that is, the tenant's failure to cultivate a portion of the land, where the money to be paid in this contingency was made a part of the rent and furnished a part of the entire consideration for the whole of the land demised, is covered by the landlord's lien.

5. Landlord and tenant 245-Rent payable in money held secured by landlord's statutory

lien.

In a proceeding to enforce a landlord's lien on the proceeds from crop, where the tenant failed to cultivate the land according to agreement, held, in the absence of a modification of the contract, that the rent payable in money was as much a part of the rent as that payable by a portion of the crop and is secured by lien given by law to the landlord to secure payment of the rent which accrued for the year for which the premises were demised.

agreed share of the cotton and corn and for $8 per acre rent on any land not cultivated by the tenant. Lewis carried over a large indebtedness due him by Lewellen during the year 1919, and there is a sharp conflict between his testimony and that of Stephenson as to the terms of the 1920 rental contract. Lewis testified that he refused to advance Lewellen until after Stephenson had modified the rental contract to make it the same as the 1919 contract had been; that is, that the rent should be only an agreed share.

The deposition of Lewis' wife was taken, and she testified that she heard the negotiation between Stephenson and her husband and corroborated her husband as to the mod ification of the 1920 contract. A motion was made to suppress this deposition upon the ground that Mrs. Lewis, as the wife of the defendant, was incompetent to testify; but this motion was overruled.

[1] There was a motion to suppress the deposition of Lewis himself and that of his wife upon the ground that the notary publie who took the depositions gave them to defendant's attorney, who took them, unsealed, and delivered them in that condition to the clerk of the court. The order of the court made on the hearing of this motion recites the admission of the attorney for the defendant that the depositions had been transmitted by him and delivered unsealed to the clerk. The motion to suppress was overruled; but it does not appear what showing, if any, was made to warrant that order. In the absence of an affirmative showing that the integrity of the depositions had been preserved, the depositions were prima facie in

Appeal from Woodruff Chancery Court; admissible. Section 4236, C. & M. Digest, diArthur L. Hutchins, Chancellor.

Suit by V. W. Stephenson against Fletcher Lewis. From a decree in favor of the defendant, plaintiff appeals. Reversed and remanded for new trial.

R. M. Hutchins, of Augusta, for appellant.
Harry M. Woods, of Augusta, for appellee.

rects how depositions shall be directed and forwarded to the clerk of the court in which

they are to be read. The action of the attorney in delivering these depositions to the clerk unsealed was in violation of this statute and rendered the depositions prima facie inadmissible; and there appears in the record no showing which removes this presumption. St. L., I. M. & S. R. Co. v. Webster, 99 Ark. 265, 137 S. W. 1103, 1199, Ann. Cas. 1913B, 141; Mo. & N. Ark. Rd. Co. v. Johnson, 115 Ark. 448, 171 S. W. 478.

SMITH, J. Appellant Stephenson was the plaintiff below, and brought this suit in equity to enforce his lien as a landlord against the proceeds of certain cotton received and [2] It is conceded that the deposition of sold by appellee Lewis, defendant below, who Mrs. Lewis is incompetent and that the is a merchant and who furnished Lewellen, court should have excluded it; but it is inthe tenant, the money and supplies to make sisted that the competent testimony in the the crop grown during the year 1920 upon case sustains the finding made by the court the demised premises. The parties occupied below that the complaint was without equithe same relations to each other during the ty. This is not true, for, with the deposition. year 1919, except that the rental contract of Mrs. Lewis suppressed, as it must be, and for that year provided for an agreed share in the absence of a showing validating the of the crop. Stephenson testified that Lew- deposition of Lewis himself, the decree is ellen failed to cultivate a portion of the land without evidence to support it and must in 1919, and he therefore changed the 1920 therefore be reversed.

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