St. Louis, I. M. & S. Ry. Co. v. Ft. Smith & V. B. Ry. Co.

• Decision Date: 27 May 1912
• Citation: 148 S.W. 531
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. FT. SMITH & V. B. RY. CO.
• Court: Arkansas Supreme Court

148 S.W. 531

ST. LOUIS, I. M. & S. RY. CO. v. FT. SMITH & V. B. RY. CO.

Supreme Court of Arkansas.

May 27, 1912.

Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge.

Condemnation proceedings by the Ft. Smith & Van Buren Railway Company against the St. Louis, Iron Mountain & Southern Railway Company. Decree for petitioner, and defendant appeals. Modified and affirmed.

W. E. Hemingway, of Little Rock, and Lovick P. Miles, of Ft. Smith, for appellant. S. W. Moore, of Kansas City, Mo., and Read & McDonough, of Ft. Smith, for appellee.

McCULLOCH, C. J.

Appellee is a domestic railway corporation chartered for the purpose of constructing and operating a railroad from the city of Ft. Smith, Ark., to the city of Van Buren, a distance of about five miles. Its proposed line crosses in the city of Ft. Smith the main track and certain side tracks and spurs of appellant railway company, and it seeks in the present proceeding to condemn the right of way for these crossings, seven in number.

The statutes of this state contain the following provisions concerning the rights of intersecting railroads:

"Sec. 6769. Every railroad corporation created and organized under the laws of this state, or created and organized under the laws of any other state or the United States, and operating a railroad in this state, shall have the power to cross, intersect, join or unite its railroad with any other railroad now constructed or that may hereafter be constructed, at any point on its route and upon the grounds and right of way of such other railroad company, with the necessary turnouts, sidings and switches and other conveniences in furtherance of the object of its construction. And every railroad company whose railroad is or shall be crossed, joined or intersected by any new railroad shall unite with the owners and corporation of such new railroad in forming such crossing, intersection and connection, and shall grant to such railroads so crossing, intersecting or uniting all the necessary facilities for that purpose as aforesaid.

"Sec. 6770. If the two corporations can not agree upon the amount of compensation to be made for the purposes set forth in the foregoing section, or the points or manner of such crossing, junctions or intersections, the same shall be ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for right of way for railroads." Kirby's Digest.

Maps or blueprints of the proposed line of appellee's road and of the crossings sought to be condemned were filed with the complaint and it is alleged in the complaint that the two corporations had failed to agree as to the said crossings. Appellant filed an answer containing the following statements: "Plaintiff * * * is not a railroad corporation created, organized and existing under the laws of the state of Arkansas; it is not entitled, under the law, to bring and maintain an action for the condemnation of the crossings. * * * The plaintiff has not found it necessary to cross, intersect or unite its railroad with the railroad of the defendant, as shown in the complaint; * * * denies that it has become necessary for the railroad purposes of plaintiff, in constructing its main line of railroad from Ft. Smith to Van Buren, to make the crossings shown in the blueprint; * * * says that it is wholly unnecessary, unreasonable, and unwise for plaintiff to have the crossings Nos. 1 to 7, inclusive, demanded as set out in the complaint; the location of the said line of plaintiff is into, through, and upon that portion of the property of defendant devoted to yard use, and to the service of industries, and the construction of the line of plaintiff, as proposed in the complaint herein filed, will result in the destruction of and damage to the property of defendant, and in an unsafe and inefficient railroad for plaintiff." The answer is made a cross-complaint, asking that the cause be transferred to the chancery court so that equitable relief might be granted, and as ground for such relief the following statement is made: "Defendant says that it is informed and believes and alleges upon information and belief that the Ft. Smith & Van Buren Railway Company is a private enterprise, which was chartered ostensibly to build a line from Ft. Smith to Van Buren, Ark., but it is not so chartered at the present time, and that it has no intention of constructing such a line, and does not intend to build or operate any line as authorized by its charter, but seeks to condemn solely for the construction of a switch or switches while never intending to own or operate a main line with which to connect. Its proposed line, as now projected, is not intended to, nor will it, be a main line, nor an aid to the convenience of operation of any main line of plaintiff. It is conceived and intended to serve only private industries, in which it will be financially interested and to which the public will have no access in common. It does not intend to locate or maintain any station buildings, or to render the public service contemplated by the laws and by the Board of Railway Incorporators when its charter was granted. It has not acquired any right of way in the city of Van Buren, nor any terminal facilities, has made no provision for crossing the Arkansas river at Van Buren, has acquired no right of way between the city of Van Buren and a point approximately one mile and a half northerly from its crossing of defendant's line at No. 1, nor has it done any construction work within such distance from the town of Van Buren, notwithstanding its charter was issued April 9, 1910. The present purpose of plaintiff is entirely in conflict with, and constitutes an abandonment of, the purposes for which it was chartered, as will more fully appear upon a full disclosure of its records, to which defendant has not now access. It is now seeking to use its alleged articles of incorporation as a subterfuge with which to subserve only the private interests of its stockholders, and the result will be, if permitted, the perpetration of a fraud upon the state by exercising the right of eminent domain of the state for a purpose not contemplated by the state when its charter was granted; and its present purpose is to use such charter as subterfuge to take the property of this defendant and impose an irreparable loss upon defendant for a purpose not contemplated by said charter."

The court overruled the motion to transfer and proceeded to the trial of the cause, the parties waiving trial by jury and agreeing that the case should be tried before the court sitting as a jury.

The first assignment of error is as to the ruling of the court in refusing to transfer the case. This court has repeatedly held that the sole object of the statutory proceedings to condemn land for railroad purposes is to ascertain the compensation to be paid to the owner for his damages, and that no provision is made for an issue upon the right to condemn, but that "the owner is not without remedy when his land is sought to be taken for purposes other than public use, and the courts of equity will mold an adequate remedy by injunction in order to give relief." St. L., I. M. & S. Ry. Co. v. Faisst, 137 S. W. 815, and cases cited. All of our decisions on this subject have been rendered in controversies between railway companies and individual owners as to the right of the former to condemn. None of the cases involve a controversy between two railway corporations as to the right of one to condemn a crossing over the other's line. The only difference between the respective statutes providing for the proceeding is that, as to the condemnation of private property for railroad purposes, the sole inquiry is to ascertain the amount of compensation, whilst in the proceedings to condemn a crossing over another railroad, where the two parties have failed to agree "upon the amount of compensation to be made * * * or the points or manner of such crossings * * * the same shall be ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for right of way for railroads."

The doctrine established by our previous decisions is that a railroad corporation is by its charter clothed with the power of eminent domain to the extent of its necessities, and that this gives it a prima facie right to condemn, which cannot be questioned in a statutory action at law brought in the exercise of its power of eminent domain. Niemeyer & Darragh v. Little Rock Junction Ry. Co., 43 Ark. 111, settles that question, we think, beyond dispute, and the only remedy is by injunction granted by a court of equity, or by transfer to such court for equitable relief for the purpose of ascertaining the right of a corporation to exercise the right of eminent domain. That is the same as an independent suit in equity for an injunction. This applies to a suit by one railroad to condemn for the purpose of crossing the line of another railroad. The statute gives the court in those cases only the right to ascertain "the points and manner of such crossing" in addition to ascertaining the amount of compensation to be paid. The Constitution of this state (article 17, § 1) declares that "every railroad company shall have the right with its road to intersect, connect with, or cross any other road," and, whenever that right is asserted in an action at law to condemn, it cannot be questioned in that forum. The only remedy is in a court of equity, to which the cause may be transferred on proper showing of facts sufficient to justify equitable relief, as indicated in the decision referred to. It follows, therefore, that appellant was entitled to have the case transferred to equity for the purpose of determining appellee's right to exercise the power of eminent domain upon sufficient allegations of facts and proper verification.

The next question to be considered is,...