Cloth v. Chicago, Rock Island & Pacific Railway Co.
| Decision Date | 19 December 1910 |
| Citation | 132 S.W. 1005,97 Ark. 86 |
| Parties | CLOTH v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Monroe Circuit Court; Eugene Lankford, Judge; affirmed.
Judgment affirmed.
Manning & Emerson, for appellant.
Buzbee & Hicks, for appellee.
The appellee is a railroad corporation, and for a number of years it has, under due and legal authority, owned and operated a line of railroad in this State and through the town of Brinkley. It instituted proceedings to condemn a lot belonging to appellant situated in said town for the purpose of constructing thereon a freight depot. In its petition it alleged that it maintained a station at said town, and that in the due and proper operation of its railroad and the prosecution of its business it was necessary to conduct a freight depot at that place, and it asked the court to ascertain the amount of compensation which it should pay to appellant for said lot. Having deposited the amount designated by the circuit judge as the value of the property it took possession thereof for said purpose.
In her answer the appellant alleged that the property was of the value of $ 2,500, and that she was damaged in the additional sum of $ 1,000 by reason of the appropriation thereof by appellee. She asked for a judgment against appellee for $ 3,500 for the property and her damages. Also, in her answer she denied that it was necessary for appellee to construct a freight depot upon her lot, and she asked that the cause be transferred to the chancery court to determine whether or not appellee had the right to condemn the same. To defeat the right to condemn the property, she alleged that prior to March 8, 1909, appellee owned a lot in the town of Brinkley upon which it had constructed a freight depot which was destroyed by a cyclone upon that day, and that it still owned this lot, which was suitable for the purpose of a freight depot; and that on this account it was not necessary to take her property for that purpose. It also alleged that appellee had entered into an agreement with citizens of Brinkley or the municipality itself by which it was provided that the appellee should change the location of its freight depot from the former site thereof to the lot of appellant and that said citizens or said town would pay a certain part of the consideration for the taking of her property. The court refused to transfer the cause to the chancery court, but proceeded to impanel a jury to determine the damages which appellant was entitled to recover by reason of the condemnation of said property. During the progress of the trial appellant offered to prove the allegations of her answer by reason of which she denied the right of appellee to condemn her property. The court refused to permit the introduction of any testimony tending to prove these facts, but only admitted testimony showing the value of her property and the damage thereto. The jury returned a verdict in favor of appellant for $ 1,000; and from the judgment entered thereon she has appealed to this court.
By virtue of our Constitution the State's right of eminent domain is conceded, and the Legislature, as the representative of the State's sovereignty, or the agency to which the Legislature has granted the power, has the right to take any kind of property for public use. Const. art. 2, §§ 22, 23. But private property can, under the power of eminent domain, be taken only for a public use. It cannot be taken without the owner's consent and appropriated solely to the private use of another person or a corporation; and whether or not the property is taken for a public use. It can not be taken without the owner's consent and to have determined by the courts. 2 Lewis on Eminent Domain (3 ed.), § 599; Railway Co. v. Petty, 57 Ark. 359; Mountain Park Terminal Ry. Co. v. Field, 76 Ark. 239, 88 S.W. 897; Gilbert v. Shaver, 91 Ark. 231, 120 S.W. 833; 15 Cyc. 632.
In order to constitute a public use, it is necessary that the public shall be concerned in such use thereof, and the purpose for which the property is to be used must be in fact a public one. 15 Cyc. 581; Railway Co. v Petty, 57 Ark. 359. A railroad corporation is recognized as a public agency, and by the Legislature it is authorized to exercise the power of eminent domain in aid of the purposes for which it is organized. By statutory authority it is empowered to condemn private property for its right-of-way (Kirby's Digest, § 2947); and the right-of-way "includes all grounds necessary for sidetracks, turnouts, depots, workshops, water stations, and other necessary buildings." Kirby's Digest, § 2958. These uses are for railroad purposes, and they are of a public character, and a railroad company has therefore the right to condemn land for all such purposes. If the use for which the property is desired is in fact a public one, then the right to condemn the property follows. The mere fact that private ends of others will be advanced by such public user will not defeat the right to condemn the property. As is said in the case of Railway Co. v. Petty, 57 Ark. 359: "It is common for the interests of some individuals to be advanced, while that of others is prejudiced, by the location of railway stations and switches, when there is no motive on the part of the railway officials to discriminate between them." But the character of the use is no less public, and that public character is not changed, although private purposes will be incidentally served by the location of the railroad and its stations and buildings. And it is held in the case of Railway Company v. Petty, supra, that: "The courts do not assume to interfere with the right of the company to locate its line, stations or switches," if it does not place an unreasonable restraint on the public to use same, although such location may incidentally subserve the interests of private individuals. And, as is...
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