best interests of the landowners to assume at the present time the additional burden of this improvement, although the improvement itself, when constructed, would be advantageous to the proposed district. However, the court did not undertake in its finding of facts to make specific declarations upon all of the questions, which were evidently considered, and upon which evidence was offered.

whether it would be to the best interests of the owners of real property within the proposed district that the same become a drainage district, which necessarily meant a single district, such as the one here proposed, but the court did not make that finding, but simply found that it would be to the best interest of the owners of real property within the proposed district that the land be drained. The significance of the difference between the declaration of fact asked and [2] At best, it can only be said in favor of the one made by the court is apparent when appellant's contention that the findings are considered in connection with the evidence conflicting, and this is not a case where we and the record in this case. Conflicting views should apply the rule that, when the specific were expressed as to whether Poinsett and finding of fact is inconsistent with the genCraighead counties should unite with Missis- eral verdict, the former controls the latter, sippi county in the formation of this dis- and the court must give judgment accordtrict, and the opposition of the landowners ingly. Where this rule applies at all, it is in the first two named counties appears to applicable alike to the finding of fact made have been almost unanimous. Counsel at- by the trial judge, as well as to a verdict tempt to explain this opposition by saying by a jury. Gebhart v. Merchant, 84 Ark. that Mississippi county must have the drain- 359, 105 S. W. 1034. It must be borne in age, and, when the project is an accomplish- mind that the court specifically found the ed fact, Craighead and Poinsett counties will facts to be that the petition for the proposed derive the same benefit as they would if they improvement did not comprise a substantial shared the burden of its construction, but number of the owners of real estate located that they selfishly seek to avoid the assump- in the district, and found that the remontion of their share of the costs, under the be- strance consisted of an overwhelming malief that Mississippi county will eventually jority in number, acreage, and value of the construct the improvement, even though it is owners of the real property in said proposed finally done entirely at its own expense. We district. It must be confessed that to some need not discuss the merits of this question. extent, at any rate, the court's findings are It is sufficient to say that the court refused conflicting, but we cannot accept that conto find it to be to the best interests of the struction of these apparently conflicting findlandowners that the proposed district become ings, which would overturn the judgment a drainage district, and found merely that it rendered upon them. Upon a consideration would be to the best interests of the owners of the whole case, he dismissed the petition of the land that the lands be drained. We and declined to establish the district. think that the distinction is manifest. The court did find that the establishment of the proposed district would be to the advantage of the owners of real property in said district, but the court evidently did not intend by this finding to annul its first finding. There may be advantages, as there are disadvantages. The court had before it much evidence to support a finding that advantages would be derived by the construction of the proposed improvement; upon the other hand, there was much evidence from which the court might have found that, while advantages would flow from the construction of the improvement, it was still not for the best interests of the landowners that it be constructed at that time. For instance, there was evidence before the court that a very disastrous overflow had resulted from breaks in the levee system, which protected the lands of the district from the annual inundation of the Mississippi river, and this break had occurred only a short time before the hearing of the case; and witnesses testified that the country had not sufficiently recovered from its effects to undertake the cost of this improvement, and there was evidence from which the court might have found that a drainage project must follow, and not pre

[3] Under this Act No. 279, supra, it was provided that, when three or more owners of real estate within a proposed district should petition for the establishment of a drainage district, it was the duty of the court to enter upon its records an order appointing an engineer to make a survey and ascertain the limits of the region which would be benefited by the proposed system of drainage; and the engineer was required to file a report showing whether the territory embraced would be benefited by the proposed system of drainage, and the court thereupon was required to enter an order laying off the district so surveyed as a drainage district, and to give notice of that fact. Section 2 of that act provided that this order of the court should be void, unless within one year thereafter there was filed with the clerk of the court a petition, signed by a majority, either in number, or in acreage or in value, of the holders of real estate within the district praying that the improvement be made. Under the provisions of this act, the proceedings were at an end unless within 12 months of the date of the court's preliminary order a petition as above stated was filed. Both sections 1 and 2 of the Act of 1909 were amended by Public Act No. 221 of the Acts

of 1911 provides for the same steps as the | age district, described in the foregoing petiAct of 1909 up to the time of final action tion, in case the drainage district is not on the question of creating the district. As formed, but in case the said district is formto that question the Act of 1911 contains this ed, then this obligation is null and void." additional provision: "At the time named This bond is conditioned as required by law, in said notices, said county court shall meet and covers only the cost of the survey. But and hear all property owners within the pro- the question arises whether the costs other posed district, who wish to appear, and ad- than that of the survey should be assessed vocate or resist the establishment of the dis- against the petitioners or against the coun trict, and if it deems it to the best interest ties. Section 4 of the Acts both of 1909 and of the owners of real property, within said 1911 contains this provision: "If for any district, that the same shall become a drain- cause the improvement shall not be made, age district, under the terms of this act, it the said costs shall be charged on the real shall make an order upon its records es property in the district, including railroads tablishing the same as a drainage district, and tramroads and shall be raised and paid subject to all the terms and provisions of by assessment in the manner hereinafter this act." The second section of the Act of prescribed." But there is no manner there1909 is devoted chiefly to the same matter in prescribed for the payment of these costs, as in the same section in the Act of 1911, where the district is not established. Where and is amended so as to read as follows: the district is established, these costs become "If upon the hearing, provided for in the a part of the general costs of the improveforegoing section, the petition is presented ment, and are collected as such, but in this to the county court signed by a majority, ei- case the district was not established, and ther in numbers, or in acreage, or in value, there is no way in which the costs can be of the holders of real property within the pro rated against the taxable property of proposed district, praying that the improve- the district, because there can never be any ment be made, it shall be the duty of the question of benefit or betterments against county court to make the order establishing which the cost can be assessed. Section 1 the district without further inquiry; but if of the Act of 1911 provides: "All expenses no such petition is filed it shall be the duty incident to the survey and the cost of pubof the county court to investigate, as pro- lication shall be paid by the county, as the vided in the preceding section, and to estab- work progresses, upon proper showing, but lish said district, if it is of the opinion that all expenses incurred by the county shall the establishment thereof will be to the ad- be repaid out of the proceeds of the first vantage of the owners of real property there- assessment levied under this act." But there in." Thus it is seen that the effect of the can be no assessment unless the district is amendments is to authorize the establishment established. It appears, therefore, that the of the proposed improvement, even though sureties upon the bond above mentioned are the same be not petitioned for by a majority | liable only as provided by the statute and of the landowners in number, acreage, or the terms of the bond itself for the cost of value, provided the court determines that the survey, but for this cost only. the establishment thereof will be to the advantage of the owners of the real property therein. This is certainly a very great power vested in the court, and, when exercised in the face of the failure of petitioners to secure the signatures of a majority either in number or acreage or value, there should be no uncertainty about it being to the advantage of the landowners; and under such circumstances any uncertainty should be resolved in favor of the owners of the property to be assessed, upon whose shoulders the burden of the improvement will rest. And,, in view of the uncertainty that here exists, we must decline to reverse the action of the court below and order the establishment of the district.

[4, 5] Appellant complains that the court ordered and adjudged all the accrued costs in this proceeding to be taxed against the petitioners and their bondsmen. This is error in so far as the judgment assessed any costs against the bondsmen, except the costs of the survey. The condition of the bond in this case is as follows: "We the undersigned, principals and sureties, promise to pay the

[6] It may be that the county is liable for the costs of publication, as the bond which petitioners are required to give embraces only the cost of the survey, and does not include the cost of publication. The section just quoted from requires the county to pay the expenses of the survey and publication as the work progresses. But the county is not a party to this proceeding, and we will not attempt to determine its liability for the cost of publication. As to the remainder of the cost, no order can be made because the district was not established.

[7] In the case of Wilson v. Fussell, 60 Ark. 195, 29 S. W. 277, it was said: "The right to recover costs did not exist at common law. It rests upon the statute only, and it is to the statute we must look for the authority to recover costs in any given case." And there appears to be no authority for the recovery of costs in this case, except as above stated.

Accordingly, the judgment of the court below is affirmed, except as to the costs, as to which it will be so modified as to charge the petitioners and the sureties upon their

[Ed. Note. For other cases, see Carriers, Cent. Dig. 88 1478, 1483-1491; Dec. Dig. much shame and humiliation on that account. 382.*1 There was evidence tending to support all of these allegations.

Separate actions by Floyd W. Branch and Philip H. Garrigan against the St. Louis Southwestern Railway Company. Judgment in each case for plaintiff, and defendant ap-heimer. The lines of defendant's road conpeals. Affirmed.

line railroad had been in operation for only |tion of their tickets by the defendant's serva few months, and the plaintiffs were making ant, who was stationed at the train for that their first trip over it; and, although they purpose. admitted changing cars at England, they did so in the nighttime, and claimed not to have understood how the trains would run on their return. It is admitted that the tickets were so stamped that their use was limited to the short line road; but the evidence tended to show that the stamping was indistinct, and the plaintiffs say that it escaped their observation, and would have been meaningless had it been observed. The plaintiffs testified that their business in Little Rock was urgent and important, and that they desired to return there as soon as possible, and to that end drove through the country from De Witt to Stuttgart; De Witt being on a branch line of defendant's road, which connects with the main line at Stuttgart. It appears that the defendant had a rule requiring prospective passengers to exhibit their tickets before entering the train and becoming passengers; and, in obedience to this rule, the plaintiffs were required to exhibit their tickets, both at Stuttgart and Altheimer. They testified that they were permitted to enter the train at Stuttgart, and were not advised that the tickets exhibited were not good for the entire trip, which they were about to make, nor did they know that additional fare would be demanded.

[1] It was said in the case of St. Louis & San Francisco Railroad Co. v. Blythe, 94 Ark. 153, 126 S. W. 386, 29 L. R. A. (N. S.) 299, that the railroad may require passengers to purchase tickets before entering the cars; and it was further said that such rules are reasonable, because they not only facilitate the order and convenient conduct by the railroad company of its own business, but they promote the safety and comfort of its passengers.

[2] Thus it is seen that the rule is not for the exclusive benefit of the railroad company; and we are of opinion, under the facts here stated, that it was the duty of the defendant company, either to have refused them admission as passengers on the ticket presented, or to have advised plaintiffs that the tickets would not be accepted for the entire trip to the destination named thereon, or, failing to do so, to have carried them to that destination without the demand of the additional fare charged, and without ejecting them for their failure to pay it. Of course, if they had been advised, when they tendered themselves as passengers, that they must either return direct through England or pay the additional fare, there would have been no cause of action for evicting them upon their refusal to pay; but they could not be required to pay this additional sum for transportation to the destination named in their tickets, when they had been received as passengers upon the presentation and examina

There was a verdict and judgment in favor of each defendant for the sum of $25, and defendant complains that this sum is excessive, for the reason that the proof affirmatively shows that both plaintiffs had the money with which they might have paid their fare upon the train, and that they should have done so, and that they cannot now recover a sum of money in excess of the sum demanded by the auditor upon the train. This is upon the theory that plaintiff "could not increase his damages for a breach of contract by negligence, or refusal to do that which would lessen them. By refusing to pay his fare, he contributed to his injuries. which are the direct result of his own conduct, and not the breach of the contract for his carriage"; and in support of the contention cites the case of St. L., I. M. & S. R. Co. v. Cates, 87 Ark. 162, 112 S. W. 202, from which case the above quotation is taken. That case also quoted the following language with approval from the case of St. L. S. W. R. Co. v. Reagan, 79 Ark. 484, 96 S. W. 168, 7 L. R. A. (N. S.) 997: "When a party has the money with which to purchase a ticket, the natural and ordinary damages which would result from a breach of a contract to give him free transportation would be the price of the transportation agreed to be furnished. If plaintiff in this case had the money with which to have purchased a ticket, we see no reason why he should be allowed to recover damages, for failure to furnish a ticket, beyond the price of a ticket."

[3, 4] But the Cates Case was the eviction of a passenger from the train of a connecting carrier, and the Reagan Case was a suit for damages for a failure to furnish free transportation to an injured employé in accordance with his contract of employment; and a distinction appears to be made between such cases and the case of an eviction of a passenger made by the contracting carrier. In the Cates Case, supra, Justice Hart, speaking for the court, said: "If appellee had been evicted from the train of the carrier with whom he made the contract, he would have had a right of action against it for breach of duty as a carrier, and his measure of damages, unless there was an element of malice, recklessness, or wantonness, would have included the humiliation that resulted from his expulsion from the train"-and Judge Riddick in the Reagan Case, supra, used language to the same effect.

As humiliation is an element of damages to be considered in a suit for wrongful eviction upon the part of the contracting carrier, and in view of the fact that plaintiffs were shown to have incurred an expense of $3.97, we cannot say that the judgment is excessive, and it is accordingly affirmed.

BARRE et al. v. DAGGETT et al. (Supreme Court of Texas. Feb. 5, 1913.) 1. PLEADING (§ 214*)-PETITION-DEMURRER- the community property described in the

BROWN, C. J. "Appellant and appellees are brothers and sisters." The suit was by appellees to recover from appellant her interest in the property. The allegations of the petition material to this proceeding are, in substance, that all parties were children of C. B. Daggett and Mary Daggett; that C. B. Daggett died, leaving Mary, his wife, his sur- [1, 2] The demurrer admits the truth of vivor, and the land in question was the com- the allegations in the petition, which show munity property of said C. B. and Mary Dag- that plaintiff in error received a valuable