Kansas City Southern Railway Company v. Sevier County
| Citation | 286 S.W. 1035,171 Ark. 900 |
| Decision Date | 28 June 1926 |
| Docket Number | 95 |
| Parties | KANSAS CITY SOUTHERN RAILWAY COMPANY v. SEVIER COUNTY |
| Court | Supreme Court of Arkansas |
Appeal from Sevier Circuit Court; B. E. Isbell, Judge; affirmed.
Judgment affirmed.
James B. McDonough, for appellant.
J. R Campbell, Jr., and Henry Collins, for appellee.
This suit was commenced in the county court of Sevier County, by certain landowners, to open a public highway over a railroad right-of-way of appellant near DeQueen, under authority of §§ 5228, 5229 and 5230 of Crawford & Moses' Digest. Appellant interposed three defenses to the proceeding, as follows: First, that the petitioners did not publish the notice as required by § 5230 of Crawford & Moses' Digest; second, that the petitioners did not give the bond with security required by law; and third, that railroad yards cannot be condemned for a public highway.
The suit was first tried in the county court, then on appeal in the circuit court, where it was adjudged upon the testimony and law that the highway should be opened across appellant's right-of-way at a point where its land had been acquired exclusively for railroad yards.
An appeal has been duly prosecuted to this court from said judgment. The record reflects the following facts pertinent to the issues involved in the appeal.
The proposed highway will intersect the railroad right-of-way about a mile and one-half north of the depot in DeQueen, over land acquired by the railroad for yard purposes. The proposed crossing is 912 feet north of the most northerly switch and at a point where the railroad has only one track and where the right-of-way begins to narrow in width. It is the purpose of appellant to use its land at the proposed point of highway and railroad right-of-way intersection for terminal and switching purposes in the natural expansion and development of its business. The right-of-way purchased for yard purposes is about 800 feet wide, whereas the customary width of rights-of-way is 100 feet. Appellant also introduced testimony to the effect that, when the switching tracks should be laid on the north end of the yard, it would be dangerous to have a highway through it on account of cars moving back and forth. The proposed road will connect county road No. 2, mail route, west of the railroad track, with the Jefferson Highway running parallel with the railroad on the east side thereof, and being the main highway between DeQueen and Mena. The proposed road is about two miles long, and will furnish the people in its vicinity and the neighborhood west of the road an outlet to the Jefferson Highway without being compelled to go around by DeQueen, two miles south, or about two miles north to a cross-road. The petition for the proposed road was filed in the office of the county clerk on the 30th day of January, 1922. Notice of the application was published March 31, 1922. Proof of the application of the notice was filed April 3, 1922. The bond required by the statute was approved April 4, 1922. The viewers for the proposed road were appointed April 6, 1922, and filed their report on July 3, 1922, the day the order was made establishing the highway.
Appellant's first contention for a reversal of the order or judgment establishing the road is because the petition was presented before notice was given that the application would be made for the road. Section 5230 of Crawford & Moses' Digest requires that notice must be given by publication of the intended application for the road previous to the presentation of the petition for same, and that the notice shall be duly authenticated and presented with the petition to the county court. We think the statute means that, before the petition shall be called to the attention of the court for action, a required notice shall have been published and duly authenticated. It did not mean that the notice should be necessarily published and authenticated before the petition could be filed in the clerk's office. The record reflects that the petition was filed several months before it was acted upon by the court, but the court did not act upon it until after the notice had been properly authenticated and filed. The petition was directed to the court and not the clerk. Of course, the court did not acquire jurisdiction until the notice had been given, authenticated, and filed, because it was a necessary prerequisite and the basis of any action on the part of the court, but it would be technical indeed to interpret the statute as meaning that the notice could not follow the filing of the petition when the statute provides, in so many words, that the notice shall be duly authenticated and presented with the petition to the county court.
Appellant's second contention for a reversal of the order or judgment is that the court approved a bond without security and appointed the viewers on April 2, 1922, before the notice had been published for a full week. The objection made to the bond is that it was not signed by a surety. It was signed by two of the petitioners, presumably solvent, and was approved by the court. We do not think appellant is in any position to complain of this, since the bond was given to protect the county for costs and expenses incident to the view in case the prayer of the petitioners should not be granted or in case the proceedings should not be finally confirmed and established. Section 5228 of Crawford & Moses' Digest. Objection was also made because the bond was filed and the viewers appointed before the notice had been published for a full week. These were mere irregularities in the exercise of jurisdiction, and not necessarily prerequisites to the exercise thereof by the court. Polk v. Road Improvement District No. 2 of Lincoln County, 123 Ark. 334, 185 S.W. 453.
Appellant's third and last contention for a reversal of the order or judgment is that highways cannot be opened across lands acquired by a railroad for yard purposes, although not being used for such purposes. The testimony was to the effect that, at some future time, the land at the point of intersection of the railroad and the proposed highway would likely be used for yard purposes. The argument is that highways opened across railroad yards entail great hazard and danger upon users of the roads and much inconvenience to the railroads themselves. The same might be said concerning the extension of streets through railroad rights-of-way in cities and towns, yet it is a common thing and acknowledged right to do so. St. L. S. Ry. Co. v. Fayetteville, 75 Ark. 534, 87 S.W. 1174. It is common knowledge that streets run through railroad yards where there are many switches and tracks, and that the extraordinary hazard and danger to the traveling public is guarded against by flagmen. We can see no reason why railroad and public cannot occupy the land for their respective purposes, as the uses may reasonably coexist. In this State county courts have exclusive jurisdiction in the matter relating to county roads. Article 7, § 28, Constitution of 1874. It is provided by § 5226 of Crawford & Moses' Digest that:
"All public roads and highways shall be laid out, opened and repaired agreeably to the provisions of this act, and the county court of each county shall have full power to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof." When a railroad acquires or condemns property for railroad purposes, it takes it with full knowledge that its easement is subject to the establishment of intersecting highways or crossroads wherever necessary for the convenience of the public, and the existing necessity therefor is within the sound discretion of the county court so far as rural highways are concerned. It is suggested by appellant that this rule would allow county courts to lay off highways through depot buildings and other like expensive improvements of railroad companies. Not so, for this could be avoided by slight detours, and it would be an abuse of discretion not to make a detour under such circumstances. And likewise it would be an abuse of discretion to unnecessarily cross railroad yards with highways when it could be avoided by a slight deviation in the route of the road, or when it would be practical to construct an overhead or underground way. The whole matter is one of sound discretion by the county court, and subject to review.
We do not think that the testimony in this case shows that the county court abused its discretion.
No error appearing, the order or judgment is affirmed.
The CHIEF JUSTICE and Mr. Justice WOOD concur in the judgment.
The Chief Justice and the writer concur in the judgment for the reason that the proposed highway does not invade any land of appellant that is now in actual use as yards. The county surveyor testified concerning this, in effect, that the appellants had indicated the yard limits by a sign painted on a post, which post was a considerable distance north of the proposed road; that the sign "yard limits," had been at the same place north of the proposed highway for fifteen or twenty years; that the proposed road was nine hundred and twelve feet north of the last switch at the north end of the yards of appellant. The testimony of witnesses of the appellant, its superintendent, trainmaster, civil engineer of the DeQueen & Eastern and the Texas, Oklahoma & Eastern, was to the effect that the land condemned for the proposed highway was acquired several years ago by appellant for yard purposes; that "it is necessary that this land be held by the railway company for future expansion...
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