A.RK.] KIBLER V. PARKER. 475 KIBLER V. PARKER. 4-3998 Opinion delivered October 21, 1935. LANDLORD AND TE N A NT-i-LEASE ON EITHER SIDE OF ROAD.—An agreement to lease land for a filling station on "either side" of a highway held to mean both sides, entitling the lessee to land on both sides of the highway to provide against competition for a filling station to be erected. 2. CANCELLATION OF IN STRU MENT S.—One who takes a lease of a strip of land on a highway for a filling station with actual knowledge that another has a lease of the same land on both sides of the highway for the same purpose acquires no right as against the prior lesSee, and his lease is subject to cancellation. Appeal from Greene Chancery Court ; J. F. Gautney, Chancellor ; affirmed. . • Chas. D.. Frierson and Charles Frierson, Jr., for appellants. - Arthur L. Adaints, for appellees. 'MCHANEY, J. This 'is an action for 8pecific performance. Appellees . procured from appellants, Kibler and wife, an option for lease for a filling station site, near the State line, between. MisSouri and 'Arkansas, in -Greeno Connty, on Highway No. 25. The option was in writing, acknowledged and recorded. It recites that Dallas Kibler is the owner of a strip of • ground containing • 79 acres, more or less; located in Greene County, Arkansas, through which State Highway No. 25 passes. After describing the land . the option agreement reads as follows :
476 KIBLER v. PARKER: [191 "In consideration. of • one dollar, receipt • of which is hereby acknowledged, and other valuable:consideration, I hereby. transfer •-to Olan• Parker and Marcus • Feiti, a strip of land 200 feet wide on either , side of Said Highway 25 on all my land fronting this -highway beginning at west :entrance to bridge spanning the St. Francis RiVer and running•west froin said bridge entrance.. This trans fer or option is given with the understanding that Olan Parker and Marcus Feitz, waht to use . a part or all of this ground for the erection of a service station, and I hereby agree that I, Dallas Kibler, will sign a lease agreement at any time within 120 days upon demand of said Olan Parker and Marcus Feitz to lease the land above set out for a period of one year at an annual rental of $300 a year," with reneWal options for a period of 25 years. This option was dated December 17, 1934. In January, 1935, and within the 120 days option period, appellees presented a lease to Kibler and wife . for their signature and aCknowledgment; reading . in part as follows: "We hereby rent, demise, lease and Jet pnto the said Olan Parker and Marcus Feitz for a period of one year beginning this date, strips of land .200 feet wide on each Side of said Arkansas State Highway NO. 25; being one strip of land 200 feet wide on the north . side and one strip Of land •200 .. feet .. wide in the solidi.. side of Ark-ansas State Highway No. 25, each Strip beginning at the extreme -edge or limit of my said described land,' first above described nearest to or boundod by the State boundary line, between the - States of Missouri and Ark-ansas, and extending along and bordering State Highway No. 25 westward on each side of said highway through the entire tr g et of my land hereinabove. described:" • Said lease contained proper clause relating-to the' payment of monthly rentals and options for'renewalS and extensions of ,thelease for the 25-year period originally mentioned in . the option. agreement, • Appellants Kibler and wife refused Ad sign said lease on the •ground that it gave to-appellees a lease on. both sides of Said highway whereas the option agreement provided for a lease only on one side of the highway; to be selected by appellees. This suit was instituted to compel them to execute said lease,
ABE:. KIBLER' V. PARKER'. 477 and to reform.theoption . agreemerit in the event , the court found it- ambiguons, Appellant WeStbrooke : WasE made .a party:tO the action for the reason-that- on -the 8th day-of January,. 1935,--appellant Kib1er.2had executed . 'Le; him . .as'attorney an 'option, on 200 feet of land in-width on that . side of -highway No.:25 above- mentioned; beginning at , the'. west end- Of the, bridge -and , aPproaCh thereto; cressing -St. -Francis: River; thence; -running -west to the• Westerii boundary ' of his land-.above ;described- -opPosite that selected: hy .0 -lan -Parker and -Marcus Feitz -under. ari option given.te them ' under a contract dated Decem-ber" 17,• 1934,- and recorded in Mortgage; Reeord: 67 at page 579,:in the office: of 'the cirebit :clerk and ; recorder. of' Greene. C.Ounty, Arkansas. :• . .. A: trial of the . case ;resulted , in a -decree in ; - appellees ' favonfor Specific perforniance • reqUiring appellants, Kib-ler and; Wife; . to- 'execute 'a . lease conveying te 'appelleeS striPS , Of land on eaeh side: of -highway '25. as above, set out on aeonsideration• of paYment by them -of an annual rental of $300. ',The decree also enjoined appellants from proceeding further': under' the Westbrooke oPtion and . canceled. same:..- The; ca g e is :here on appeal.. • • • 'For a'reversal • Of this decree) appellants cOntend that the* optiOn - to -appellees . coVers; one Or -tbe Other side: of. the • highway and : Uot • • ." 'Webster New -linernational • Dicti r O Y n , a 2nd.- Edition i- Unahridged,1 1935 defines the . wOrd -" either" .as ; -• • -' • • • ; • • '`- --Each Of • two -;-the -one' and the:othet; 'as, 'danger on e i ther"side;:somefimesyesP. formerly; of More th•an two; for • each; each' 'one': al g o; formerly with pltralS; for.' both. • • • • . •-4 ` 2: One 4::1T . the other •(of tWO • alternatives) ;' a g take eitherroad : . " • . : 'We agree With -the-i triaF 'conrt that the uSe- of:tiro Worc..0'eitlier "'in . the 'optiOn a -greement teappelleiS WaS u8ed . 'in the' sense' Of .bOth, and . Such Use 'is . not lincomthon.: AS-said ih Ohidesier; - Spring fielck etc.;' 'CO.; 59 I: ll: 87 "The word • 'either' is 'soinetimes -used-in -ihe . g ense of one or-the' other of several' things, -and 'SometimeS in-the senSe'.. of one and- the- other. • its -usO ; in- the ha'sf sense -is'
478 KIBLER V.. PARKER. [191 not infrequent, thus it is common to say on either hand, on either side, meaning thereby on each hand or side." For instance, in this case Mr. Kibler owned the land on either side of highway No. 25. When we consider the purpose for which appellees desired to lease this land, that is for filling station purposes, within the permissible distance of the Missouri-Arkansas line, so as to compete with Missouri prices of gasoline, under our statute which permits such sale at the rate of taxes prevailing in such State, it would" seem certain they would want to shut off any competition in such distance by leasing both sides of the road. Of course, they had no intention of putting a filling station on both sides of the . road, but it is certain that they would not want any one else to build a competing station so close to them. Moreover, the testimony of the witnesses, Martin, Cox., Herringer and Jacobs, all disinterested witnesses, in addition to the testimony of appellees, is to the effect that both Mr. and Mrs. Kibler admitted that they at all times understood that their option to appellees covered both•sides of the highway, and that they had so informed Mr. Westbrooke and his client, Long, for whom Westbrooke negotiated the second option in his own name. The testimony is undisputed that it took Messrs. Westbrooke and Long a considerable period of time to convince Mr. Kibler that he had kased only one side of the road to appellees, and that he was not then convinced until he, in company with them, went to submit the matter to his attorney to get his opinion as to whether he had leased both sides of the road. His attorney was not in, but he consulted another who gave an opinion to the effect that he had leased only one side of the road. It was then and then only that Mr. Kibler executed the second option covering the side of the road not selected by appellees, and Mrs. Kibler did not sign this option. The proof further shows that $25 per month or $300 per year is a fair rental value for both sides of the road and that Judge Pillow had, prior thereto, taken an option on both sides of the road from Mr. Kibler, which he failed to exercise,- at $10 per month. When we consider all the facts and circumstances in evidence, to-cr ether with the written option, we are of the opinion
ARK.] 479 that the . court correctly found that the option to lease covered both sides of the Toad, and that the Kiblers should be COmpelled to convey both sides, and that the lease to Westbrooke for Long was therefore correctly canceled. There is no question of innocent purchaser in this case, as contended by appellants, for not only did Messrs. Westbrooke and Long have actual knowledge of thelease, saw it Of record, but, according to several witneSses, Were informed by both Mr. and Mrs. Kibler tha t they had leased to appellees both sides of the -road. Affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.