Mallory v. Brademyer

Wood, J., (after stating the facts.) The burden was upon appellant to show that he was the owner of the land in controversy by accretion. Nix v. Pfeifer, 73 Ark. 201; Wallace v. Driver, 61 Ark. 429. The question as to whether or not the land in suit was an accretion to appellant’s land was submitted to the jury upon a correct instruction asked by appellant; and as the verdict was general, and no special findings of fact were made by the jury or asked by appellant, we must take it that the verdict was against him on the question of accretion. The only question therefore for us is, was the evidence legally sufficient to support the verdict? It was. True, the witness Brademyer was permitted to give his conclusion or opinion as to how the land in question was formed. But this was without objection from appellant, and he cannot complain here of that. The witness testified to his long familiarity with the river, and to his knowledge from observation and experience of caving banks and the making of islands and bars. He thus qualified himself, in a sense, as an expert in such matters, if expert testimony were demanded. But we see nothing about the formation of an accretion calling for the exercise of “peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to understand it or testify about it intelligently. As was said by us in Railway Company v. Thomason, 59 Ark. 140: “Such questions are open to all men of ordinary information.” , The witness detailed facts which he observed, and upon which he based his conclusion; and if the appellant objected to his stating his conclusions, he should have made known his objection specifically on this point to the trial court, to get the benefit of a ruling on it here. Certainly, much of the testimony of this witness was competent. Doubtless, the jury concluded that it was possible for even a ñsherman to tell the truth; and, however much we might differ with the jury in this particular case, yet it was their peculiar province, not ours, to pass upon the credibility of the witnesses and the weight to be given their testimony. Hot Springs Rd. Co. v. McMillan, ante p. 88; 2 Crawford’s Digest, pp. 905-6. This settles the controversy in favor of appellee, and we need not pass upon the question of limitations. Affirmed.