Gilbert v. Shaver

• Decision Date: 21 June 1909
• Parties: GILBERT v. SHAVER
• Court: Arkansas Supreme Court

120 S.W. 833

91 Ark. 231

GILBERT v. SHAVER

Supreme Court of Arkansas

June 21, 1909

Mandamus to Howard Chancery Court; James D. Shaver Chancellor; writ granted.

W. C Rodgers, for petitioner.

1. The answer and cross-complaint state facts entitling defendant to relief in equity. (1) Fraud. 29 Ark. 612, 617. Relief by injunction. 29 Ark. 139, 141; 74 Ark. 421, 425; 77 Ark. 221. All the necessary allegations are made. 46 Ark. 96, 102; 48 Ark. 312, 316; 56 Ark. 93-95.

2. A railroad cannot exercise the right of eminent domain for private use. 57 Ark. 359; 74 Ark. 425. If it attempts it, it may be enjoined. 76 Ark. 239; 43 Ark. 11.

3. As the chancery court had jurisdiction, it should administer complete and adequate relief, legal and equitable. 77 Ark 570-6; 83 Ark. 554-61; 84 Ark. 140-5; 46 Ark. 34; 52 Ark. 414; 37 Ark. 292; 75 Ark. 55, etc.

4. Petitioner is without remedy unless the court grants relief upon the allegations in the answer and cross-complaint, not by what may be shown in evidence at the trial. The writ should be granted, as it does not control the judicial discretion of the court. Const. 1874, art. 2, § 13, art. 7, § 4; 74 Ark. 352; 7 Ark. 262; 13 Ark. 41; 44 Ark. 100; 45 Ark. 346; 66 Ark. 347; 77 Ark. 585.

Sain & Sain and John S. Kirkpatrick, for respondent.

1. The DeQueen & Eastern Railroad Company is a railroad corporation, seeking a right of way on making compensation to the owner. The only question is one of damages, and it is entitled to a jury trial. No issue can be raised as to its right to condemn. Its motives cannot be inquired into. Const. art. 12, § 9; 20 L. R. A. 434; 76 Ark. 243-4.

2. A procedendo may be awarded when lower courts delay the parties, or where a cause is removed on insufficient grounds. 19 Am. & Eng. Enc. Law (1 Ed.) 218. No such case is presented here.

OPINION

BATTLE, J.

This is an original action in this court for a writ or order commanding the Hon. James D. Shaver, chancellor of the chancery court of Howard County, in the Sixth Chancery District of Arkansas, for a writ of procedendo or order from this court directing and requiring the said chancellor to take cognizance of and try the cause of DeQueen & Eastern Railroad Company v. P. S. Gilbert, brought to the February, 1909, term of the Howard Circuit Court, and by that court transferred to the chancery court of Howard County upon the filing of an answer and cross-complaint by the defendant setting up facts calling for the powers and jurisdiction of a court of equity. The petition, omitting the caption, is as follows:

"Comes P. S. Gilbert, petitioner, and for his cause of action herein states:

"1. That on the 28th day of September, 1908, the DeQueen & Eastern Railroad Company, an Arkansas corporation, filed its complaint in the Howard Circuit Court, alleging that it was a duly incorporated railroad company, organized and existing under the laws of Arkansas.

"2. That the defendant, P. S. Gilbert, is the owner of the S.W 1/4 of S.W. 1/4 of Sec 32, Tp. 8 S., R. 28 West, in Howard County, and that, in order to successfully prosecute its business and fulfill the obligations of its charter, and in order that it may properly enjoy the benefits of its charter, it is obliged to construct its line of railroad over and across the above described land, and is obliged to secure the right of way across the same. That defendant refuses to sell to plaintiff the right of way across said tract, or to permit the railroad to be constructed over his said land.

"3. That said land is only partially improved, and that a very small part thereof is in cultivation.

"Prayer that a jury may be impaneled to determine the question of the amount of damages the defendant is entitled to receive for the right of way across said land, and that costs be adjudged against defendant.

"As supplemental to the complaint, the said DeQueen & Eastern Railroad Company presented to the Hon. James S. Steel, judge of the Ninth Judicial Circuit of Arkansas, in vacation, its petition setting up the fact that the complaint had been filed and summons issued, and asking that he make an order in vacation designating an amount to be deposited by said railroad company, for the purpose of making compensation when the amount thereof has been ascertained by the proceedings instituted.

"Upon hearing said petition in vacation the said circuit judge directed the said railroad company to deposit in the Bank of Dierks $ 55 for the purpose of making compensation to the defendant for damages for right of way across the land mentioned when the same shall have been ascertained according to law.

"In due time the defendant in that cause, and petitioner in this, filed in the Howard Circuit Court his answer and cross-complaint, in which he admitted that he was the owner of said tract, and alleged that the plaintiff had taken possession of part thereof and constructed across same a tram railroad. In addition to the land mentioned in said complaint as belonging to petitioner herein, he alleged that he owned the following tract in section 31, immediately adjoining said section 32, to-wit: Beginning at the southwest corner of said section 31 and running thence west to Sand Creek; thence in a northeast direction up and along the channel of said creek to the line of said section 31; thence south to point of beginning. He denied that, in order to successfully prosecute its business and fulfill the obligations of its charter, and in order that it may properly enjoy the benefits of its charter, the said DeQueen & Eastern Railroad was obliged to construct its lines of railroad over and across the above described land or any part thereof. He denied that plaintiff was obliged to secure the right of way across the same or any part thereof. He admitted that plaintiff had offered to buy the right of way across his said land mentioned in plaintiff's complaint, and that he had refused to sell same. Further, that he still refuses to permit plaintiff to enter any part of his land for the purpose of building said tram or spur track or any other track. He alleged, moreover, that plaintiff is not a common carrier over his said land or any part thereof, and never was, nor does it ever intend to be. The plaintiff has tortiously and in disregard and defiance of the rights of plaintiff, vi et armis, entered upon the said land and built a tram over same. That in constructing the said tram the plaintiff, acting without the law and beyond any right of eminent domain, entered upon said land of defendant, made excavations and embankments through and upon which the said tramroad was to run. That they cut up the said land and diverted the natural courses of the water so as to greatly damage his said land. That the direction of the tramroad is angling across the said land, thereby greatly damaging it for agricultural purposes and making the use of same inconvenient and of greatly less value than before the construction of said tramway That, by reason of said construction of said tramroad, the defendants have been damaged in the use, value and enjoyment of said land in the sum of two hundred dollars.

"The defendant further alleged that the purpose and object in building the said tramroad or spur over and across his land is to reach certain logs of the Dierks Coal & Lumber Company. That this spur or tram has been laid and constructed over and upon said land of defendant for no other purpose. That the DeQueen & Eastern Railroad Company has a number of spurs or trams in Howard County, used only for the purpose of hauling logs for said Coal & Lumber Company. That the said tramway has been constructed since about October 1, 1908. That it has, since that time, been continuously used by the said plaintiff as a log road and for no other purpose. That the plaintiff does not carry any passengers or freight for the public, or otherwise carry out the duty imposed by law on common carriers on or over the said tramroad or any part thereof. That it has never done so and does not intend to do so. That the appropriation of said land for use of said tram is not in good faith as a railroad company and common carrier of freight and passengers over the same or any part thereof. That plaintiff is attempting to misuse the power of eminent domain, and has not even attempted, in building and maintaining the said tram or spur, to comply in good faith or otherwise with the duty imposed by law on railroad corporations vested with the right of eminent domain. That plaintiff is seeking the aid of the courts in evading the laws of this State, and is tortiously taking and appropriating, over the continual objection and protest of defendant and in defiance of his rights in the quiet and peaceable enjoyment of the property, the land in controversy.

"Making his answer and all the statements and allegations thereof his cross-complaint, defendant prayed that the cause be transferred to equity; that he recover of plaintiff $ 250 damages to his land; that the plaintiff, its agents, servants, representatives and assigns and all and every one of them be perpetually enjoined and restrained from passing over, going upon or in any way interfering with the said land and every part thereof; that the title and claim of the defendants be forever quieted and assured; that the defendant have judgment against plaintiff for all costs, and have all other equitable and general relief.

"At the February, 1909, term of the Howard Circuit Court, the cause was transferred to equity. At the May, 1909, term of the chancery court of Howard County, the court, upon motion of the plaintiff, remanded the cause to the Howard Circuit Court.

"The chancery court was of the opinion that the facts set up in the answer and cross-complaint were not sufficient to justify a...