I respectfully dissent for the reason that I think the present case is controlled by the decision of this court in Missouri Pacific Rd. Company v. Barnes,197 Ark. 199, 121 S.W.2d 896. The situation in that case was similar in effect to that presented here. Here, the lease was between the Arkansas Sales Company and appellant, and it appears that Hamilton and Travis stored property in the building which was on appellant's right-of-way.
The lease provided against subleasing any part without written notice to appellant. Sections 10 and 16 in the present lease contain the following provisions: "(Lessee) . . . 10. To assume all damages resulting from want or failure at any time of title on the part of Lessor to said leased premises, or any part thereof, and all damages resulting from fire communicated from the right-of-way, premises, locomotives, trains, cars or other instrumentalities of Lessor, or otherwise, to *Page 873 property of any kind or character (including, among other things, buildings, structures, improvements, and the contents thereof) that may now or hereafter be upon said leased premises, or any part thereof, and to whomsoever the same may belong, whether any such damages shall be caused by negligence of Lessor or any of its agents, servants or employees, or otherwise. Lessee covenants and agrees to release and does hereby release, and to protect any and all demands, causes of action, suits, judgments, attorney's fees, costs and expenses on account thereof.
"16. Lessee shall have no right to, and will not, assign this agreement or sublet said leased premises, or any part thereof, or permit the same to be used or occupied by any person, firm or corporation other than Lessee, without first obtaining the written consent of Lessor thereto."
It seems to me that the language used is so simple, plain and crystal clear as to require no construction.
Appellees, Hamilton and Travis, were not on appellant's property with permission or consent of appellant, railroad company. The undisputed testimony shows that they had not obtained the written consent of the Lessor, railroad company.
In the Barnes case, supra, we held: "RAILROADS — LEASE OF RIGHT-OF-WAY — Fire. — In appellee's action for damages for the destruction of a warehouse by fire owned by her and located on appellant's right-of-way which she had leased for warehouse purposes under a lease providing for written notice of termination thereof and also exempting appellant from liability for loss whether the damage was the result of fire, flood or other agency, held that a verbal notice was insufficient to terminate the lease, and the lease being in force when the loss by fire occurred, appellant was not, under the terms of the lease, liable therefor."
Unless the Barnes case, which, as I see it, is squarely in point here, is overruled, which we refuse to do, the judgment here should be reversed.