Greer v. City of Texarkana

• Court: Arkansas Supreme Court
• Writing for the Court: SMITH, J.
• Citation: Greer v. City of Texarkana, 147 S.W.2d 1004, 201 Ark. 1041 (Ark. 1941)
• Decision Date: 24 February 1941
• Docket Number: 4-6292
• Parties: GREER v. CITY OF TEXARKANA

147 S.W.2d 1004

201 Ark. 1041

GREER v. CITY OF TEXARKANA

4-6292

Supreme Court of Arkansas

February 24, 1941

Appeal from Miller Chancery Court; A. P. Steel, Chancellor affirmed.

Decree affirmed.

Louis Josephs and Frank S. Quinn, for appellant.

A. G Sanderson, Jr., Willis B. Smith, Ben E. Carter, J. E. Gaughan and Pat Mehaffy, for appellees.

OPINION

SMITH, J.

Appellant Greer is the owner of a triangular tract of land or city lot at the south end of College street in the city of Texarkana where that street connects with Dudley avenue. These streets are a part of U.S. highway 71. College street crosses the yards and tracks of the Missouri Pacific Railroad Company over a viaduct, and crosses the tracks of the St. Louis Southwestern Railway Company, commonly known as the Cotton Belt, at a grade crossing. It is proposed to reroute this traffic in a somewhat circuitous manner, not necessary here to state, which will eliminate the grade crossing over the Cotton Belt tracks, and will involve the removal of the viaduct over the Missouri Pacific tracks.

Appellant filed a suit against the city of Texarkana and these railroads in which he seeks to enjoin this change of the route of 71, and he prays, in the alternative, that if denied this relief he be compensated for the diminution in the value of his lot which will result from this change.

An examination of the maps filed in this case, and a consideration of the testimony heard at the trial from which is this appeal, fully sustain the finding of the court below that public convenience and safety require that the proposed change be made; but it is equally certain that the value of appellant's property will be depreciated if the change is made.

The court below dismissed the complaint as being without equity, and this appeal is from that decree.

To effectuate this change the council of the city of Texarkana, which is a city of the first class, passed an ordinance, No. B-623, entitled, "An ordinance to vacate that portion of College street in the city of Texarkana, Arkansas, within the boundaries of the St. Louis Southwestern Railway Company's property and to close said street crossing over the St. Louis Southwestern Railway Company's tracks."

Section 2 of this ordinance provides that it shall not become effective until a new viaduct over the Missouri Pacific tracks at a different location shall have been erected and an underpass under the Cotton Belt tracks shall have been constructed where there is now a surface crossing.

The proposed plan involves the closing of College street at the point where it crosses the Missouri Pacific tracks, as the viaduct over which traffic now passes is to be removed.

Section 9944, Pope's Digest, confers this power upon the city; but it may not be exercised if act 145 of the Acts of 1939, p. 344, is invalid.

It appears that the 1907 General Assembly passed an act requiring the St. Louis, Iron Mountain & Southern Railway Company (now Missouri Pacific Railroad Company) to build a viaduct over its tracks where they are crossed by College street, (act 261, Acts of 1907, p. 606). This act ordered the railroad company to construct the framework of the viaduct, and the city to maintain its floor. In 1923, another act was passed requiring the railroad company to maintain the whole structure. (Act 394, Special Acts 1923, p. 840.) It is now proposed to remove this structure, and the effect of that action will be to close that part of College Street which crosses the yards and tracks of the Missouri Pacific Railroad Company. It is essential that the city, through its council, direct that action, and it is stated in the briefs that this has been done by an appropriate ordinance. Notwithstanding this fact, there are the acts of the General Assembly above mentioned which require the railroad company to maintain the viaduct the removal of which is commanded by the city ordinance.

The proposed change in the route of highway No. 71 has been under consideration by both the state and federal highway authorities for several years, and the purpose of the city ordinance is to effectuate the plan finally approved by these agencies. To that end there was passed, at the 1939 session of the General Assembly, an act, No. 145, entitled, "An act to repeal act No. 261 of the General Assembly of the State of Arkansas for the year 1907 and act No. 394 of the General Assembly of the State of Arkansas for the year 1923, and for other purposes." Acts 1939, p. 344. These are the acts referred to which required the railroad company to erect and maintain the viaduct.

The preamble to act 145 recites that "the United States Government has agreed to construct a grade separation project in the city of Texarkana, Arkansas, consisting of crossing the Missouri Pacific Railroad tracks by an overhead viaduct the Nix Creek bottoms by fills and bridges, and the St. Louis Southwestern Railway Company tracks by an underpass upon the following described tract of land in and adjacent to the city of Texarkana, Arkansas, to-wit:" There follows a description of the land above referred to, and the recital that upon the completion of the grade separation project "public necessity will not require a continuance of the present viaduct erected under the provisions of act No. 261 of the acts of the General Assembly for the year 1907." It is then enacted that act 261 of 1907 and act 394 of the 1923 session of the General Assembly be repealed, the repealing act...