Kansas City Southern Ry. Co. v. Sevier County
| Decision Date | 28 June 1926 |
| Docket Number | (No. 95.) |
| Citation | 286 S.W. 1035 |
| Parties | KANSAS CITY SOUTHERN RY. CO. v. SEVIER COUNTY. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sevier County; B. E. Isbell, Judge.
Proceeding by Sevier County to open a public highway across the right of way of the Kansas City Southern Railway Company. From a judgment granting the relief prayed for, defendant appeals. Affirmed.
Jas. B. McDonough, of Ft. Smith, for appellant.
J. R. Campbell, Jr., and Henry Collins, both of De Queen, 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 appellants near De Queen under authority of sections 5228, 5229, and 5230 of Crawford & Moses' Digest. Appellants interposed three defenses to the proceeding, as follows: First, that the petitioners did not publish the notice as required by section 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 De Queen, 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 appellants 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 De Queen 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 De Queen, two miles south, or about two miles north to a crossroad. 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.
Appellants' 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...
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