Gurdon & fort Smith Railroad Co. v. Vaught

• Decision Date: 09 January 1911
• Citation: Gurdon & fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S.W. 1019 (Ark. 1911)
• Parties: GURDON & FORT SMITH RAILROAD COMPANY v. VAUGHT
• Court: Arkansas Supreme Court

133 S.W. 1019

97 Ark. 234

GURDON & FORT SMITH RAILROAD COMPANY v. VAUGHT

Supreme Court of Arkansas

January 9, 1911

Appeal from Howard Circuit Court; James S. Steel, Judge; affirmed.

Judgment affirmed.

W. E Hemingway, E. B. Kinsworthy, W. V. Tompkins and James H Stevenson, for appellant.

James D. Head, J. S. Lake and Hill, Brizzolara & Fitzhugh, for appellee.

OPINION

FRAUENTHAL, J.

This was an action instituted by the plaintiffs below against the Gurdon Fort Smith Railroad Company to recover damages for the appropriation by it of plaintiff's land for a right-of-way upon which it built its railroad. The plaintiffs alleged that they were the owners of eighty acres of land in Montgomery County through which ran a narrow pass in the mountains, known as Caddo Gap, which was especially valuable for railroad purposes. On either side of this gap, for a great distance to the east and west, were high and impassable mountain ranges so that it constituted substantially the only practicable route for a line of railroad through that section of the country. The defendant had entered and built its railroad on this land through this gap. The plaintiffs asked for $ 100,000 as a compensation for the land thus appropriated by the defendant; and recovered a judgment for $ 3,200.

The defendant claimed to be the owner of the right-of-way running through this gap by reason of conveyances thereof made by the plaintiffs and those through whom they claim title to the land; and on this appeal it also urges that, in event it shall be determined that plaintiffs are the owners of said land and the right-of-way, incompetent testimony was admitted upon the trial of the case in fixing the value of the land appropriated by it, which was so prejudicial to the rights of the defendant as to call for a reversal of the judgment.

In 1887 one B. F. Vaught purchased the land in controversy for himself and his brothers, the plaintiffs, W. M., J. R., A. P. and J. H. Vaught, but took the legal title in himself. He died in 1899 leaving surviving him his widow, the plaintiff, Rosie Vaught, and his children, who are the minor plaintiffs herein. Subsequently, by decree of the Montgomery Chancery Court, it was determined that said four brothers and the heirs of B. F. Vaught were each the owner of an undivided one-fifth interest in said land. The plaintiffs are therefore the owners of the land, and are entitled to compensation for the appropriation thereof by defendant, unless it has acquired it by grant from them, because it has never condemned same for its use. Kirby's Digest, § 2903.

1. On December 15, 1887, B. F. Vaught executed to the St. Louis, Iron Mountain & Southern Railway Company an instrument by which, in consideration of one dollar and the benefits to accrue to him from the building of said company's railroad along this route, he conveyed a right-of-way 100 feet wide through this land to said company "to have and hold as long as used for the purpose of a railroad and no longer;" but the instrument did not provide that the right-of-way should also pass to said company's successor or assign. On May 4, 1907, the St. Louis, Iron Mountain & Southern Railroad Company conveyed said right-of-way to the defendant, who now claims the rightful ownership thereof under that conveyance.

It is contended by the plaintiffs that the St. Louis, Iron Mountain & Southern Railway Company abandoned said right-of-way and thereby lost all rights thereto acquired by it by said deed from B. F. Vaught. It appears from the undisputed testimony in the case that about the time it acquired this deed the St. Louis, Iron Mountain & Southern Railway Company surveyed a railroad from Gurdon to Fort Smith and filed a map of it, and that it was along this route that it was contemplated that this company should construct a railroad. It was solely in consideration of the construction of a railroad along this route that this deed was executed to it by B. F. Vaught; but that company did nothing further at any time towards the construction of a railroad along this route or through the land. It took no steps at any time to build a railroad along this route, and did no act of any kind by which it evinced an intention to build such a road. During all the time from the execution of said deed up and until 1907, the plaintiffs and B. F. Vaught were in the exclusive possession of this land except for a short time in 1903 and 1905, and at no time did said company enter on any of the land through which the right-of-way passed, nor by any act did it indicate that it still claimed this right-of-way and intended to build any road thereon. On the contrary, in 1900 or 1901 this company agreed to give whatever interest it had in the right-of-way to defendant without any consideration. This is the first time after it had acquired the deed in 1887 that this company ever gave its attention to the right-of-way, and it was then willing to get rid of it as a gift.

The defendant was organized as a railroad corporation in 1899 or 1900 for the purpose of building a railroad along this route and on the right-of-way over plaintiff's land, and proceeded to make surveys and to file maps thereof, but the St. Louis, Iron Mountain & Southern Railway Company raised no objection to any action taken by it, and made no claim that it was the owner of this right-of-way. On May 4, 1907, it executed to defendant a quitclaim deed to the right-of-way for a nominal consideration. For almost 20 years the company failed to make any use of this right-of-way, and made no active claim thereto; and by its conduct during that time, its failure to assert any claim to the right-of-way when the plaintiffs and others were occupying it and asserting claim thereto adverse to its rights, and by its gratuitous disposition thereof, we think it clearly manifested an intention to abandon the right-of-way.

A railroad company may abandon a right-of-way acquired by it by grant and thereby lose all right thereto. Whether or not an abandonment exists in any given case depends upon the particular circumstances of such case. A right-of-way is but an easement, which will be held to be abandoned when the intention to abandon and the acts by which such intention is carried into effect clearly indicate such abandonment. While nonuser does not alone constitute an abandonment, yet it is some evidence thereof, and when, in addition to such nonuser, facts are proved and circumstances shown in testimony evincing that intention, then the abandonment is established. In the case of Roanoke Inv. Co. v. Kansas City & S. E. Ry. Co., 108 Mo. 50, 17 S.W. 1000, it is said: "But, while it is true that mere nonuser will not amount to an abandonment, it is well settled that an easement acquired by grant or its equivalent may be lost by abandonment. To constitute an abandonment of an easement acquired by grant, acts must be shown of such an unequivocal nature as to indicate a clear intention to abandon. It is said, however, that abandonment will be more readily inferred when the easement was granted for public purposes than when it was created for private use."

In the case of Roby v. New York Central & H. R. Rd. Co., 142 N.Y. 176, it is held that an easement may be abandoned, and the owner of the fee will then become entitled to the possession of the land; and it is therein said: "An easement may be abandoned by unequivocal acts showing a clear intention to abandon, or by mere nonuser, if continued for a long time."

In the case of Townsend v. Michigan Central Rd. Co., 101 F. 757, the court, in speaking of the abandonment of a right-of-way by a railroad company, said: "This deed conveys an easement or right-of-way for the use and purposes therein stated. * * * Abandonment is a question of intent. From long nonuse it may be found as a matter of fact. To constitute abandonment of a right-of-way there must be a clear, unequivocal and decisive act of the party showing a determination not to have the benefit intended." The abandonment of a grant of an easement of a public nature, like a railroad right-of-way, is more readily presumed from long nonuser. In the case of Louisville Trust Co. v. Cincinnati, 76 F. 296, it was held (quoting syllabus) "that the failure for over 20 years to operate a railway on certain streets included in a franchise granted raises a presumption of abandonment of the grant." In that case it was said: "There are no circumstances in this case tending to show that this company intended at any time to avail itself of the privileges of this grant. There are no circumstances tending to make the intention of this company by this long disuse doubtful."

The question as to whether or not a railroad company has abandoned a right-of-way acquired by it is to a great extent one of intent; but such intention can be established by the acts of the company clearly indicating its purpose not to use such right-of-way and by long nonuser thereof. 2 Elliott on Railroads, 931; 2 Lewis on Eminent Domain, §§ 469 473; Beattie v. Carolina Cent. Rd. Co., 108 N.C. 425; Mobile, Jackson & K. C. Rd. Co. v. Kamper, 88 Miss. 817, 41 So. 513; McLemore v. Charleston & M. Rd. Co., 111 Tenn. 639; New York, etc., Rd. Co. v. Benedict, 169 Mass. 262, 47 N.E. 1027; Hamel v. Minneapolis, St. P. & Sault Ste. M. Ry. Co., 97 Minn. 334, 107 N.W. 139; McClain v. Chicago, R. I. & P. Ry. Co., 90 Iowa 646, 57...