Kansas City Southern Ry. Co. v. Sevier County

• Decision Date: 08 November 1926
• Docket Number: (No. 248.)
• Citation: 287 S.W. 404
• Parties: KANSAS CITY SOUTHERN RY. CO. v. SEVIER COUNTY.
• Court: Arkansas Supreme Court

Page 404

287 S.W. 404

KANSAS CITY SOUTHERN RY. CO. v. SEVIER COUNTY.

(No. 248.)

Supreme Court of Arkansas.

November 8, 1926.

Concurring opinion.

For majority opinion, see 286 S. W. 1035.

WOOD, J.

The CHIEF JUSTICE and the writer concur in the judgment for the reason that the proposed highway does not invade any land of appellant that is now in actual use as yards. The county surveyor testified concerning this, in effect, that the appellants had indicated the yard limits by a sign painted on a post, which post was a considerable distance north of the proposed road; that the sign "yard limits" had been at the same place north of the proposed highway for 15 or 20 years; that the proposed road was 912 feet north of the last switch at the north end of the yards of appellant. The testimony of witnesses of the appellant, its superintendent, trainmaster, civil engineers, and the civil engineer of the De Queen & Eastern and the Texas, Oklahoma & Eastern, was to the effect that the land condemned for the proposed highway was acquired several years ago by appellant for yard purposes; that "it is necessary that this land be held by the railway company for future expansion and use as yards"; that "it would be dangerous to permit, or to have a highway running through the yards, "both to the traveling public and the railroad. The assistant engineer of appellant, in answer to a question, stated that he did not know of any proposed changes in the yards of appellant at this time. The appellant's superintendent, on cross-examination, referring to a map of the situation of the appellant's road at De Queen, testified that appellant had 2,500 feet south of the proposed road crossing upon which appellant could build tracks if it desired. Appellant had not thought about extending the yards for the past 10 years; it had not been necessary. This witness exhibited a drawing showing the tracks that are now in actual use, and those that would be necessary when the tracks would have to be expanded and extended. He was asked how far in the future that would be, and answered: "That depends on the traffic of the country." He was further asked the following question: "I wish to get some idea from you about how long it will be before that will take place, and whether or not there is any immediate danger of that taking place" — and answered: "There is no immediate danger." He further stated that, in his opinion, it is necessary now for the better operation of the road and transportation of freight, out the superior officers of the railway company, while agreeing to the idea, were not quite ready for it. Witness had not received any instruction to extend the yards at De Queen and did not know of any proposed changes in the yards of the Kansas City Southern in De Queen at this time.

It occurs to us that the above testimony was legally sufficient to sustain the finding and judgment of the county court and of the circuit court "that the county of Sevier had the right to condemn a highway over the property of the defendants," because, according to the undisputed testimony, the appellants were not using the land condemned for the highway as yards and the above testimony was sufficient to warrant a finding by the court that it was uncertain when, if ever, that the land condemned would be actually used by appellants as railroad yards. While the lands were acquired many years previous for yard purposes, appellants had not used the land condemned for railroad yards and whether they would so use them was, under the evidence, a possibility and probability which the future exigencies of railroad traffic would determine. Appellants could not purchase land and appropriate it for yard purposes by merely designating same as "yards." Bottomed upon such facts, we concur in the judgment.

But these facts do not justify this court in announcing broadly that "the whole matter of condemning railroad yards is one of sound discretion by the county court and subject to review." Such, we believe, is not the law. The exclusive jurisdiction vested in county courts "in the matter of public roads" by our Constitution, art. 7, § 28, does not confer upon county courts the power to condemn railroad yards that are in actual use as such for the purposes of public highways. Section 5226 of C. & M. Digest provides as follows:

"All public roads and highways shall be laid out, opened and repaired agreeably to the provisions of this act, and the county court of each county shall have full power and authority to make and enforce all orders necessary as well for establishing and opening new roads as for changing and vacating any public road or part thereof."

The general powers conferred by the above statute to lay out, open, and repair public roads, do not vest county courts with authority to condemn for public highways railroad land that is set apart and being used for railroad yards. Under our Constitution, statutes, and decisions construing them, "a railroad corporation is by its charter clothed with the power of eminent domain to the extent of its necessities." Railroad corporations have the right to acquire land, to the extent of their necessities in the building and operation of their roads, either by condemnation, purchase, or voluntary grants and donations. See section 1, art. 17, Constitution; Section 8450, C. & M. Digest, subdivs. 2, 3, 4, 5, 6, and 8; St. L., I. M. & So. Ry. Co. v. Faisst, 99 Ark. 61, 137 S. W. 815; St. L., I. M. & So. Ry. Co. v. F. S. & V. B. Ry. Co., 104 Ark. 344, 148 S. W. 531. See, also, McKennon v. St. L., I M. & So. Ry. Co., 69 Ark. 104, 61 S. W. 383.

It is wholly immaterial by what method the lands are acquired by the railway company. If they are set apart, and are in use, for railroad yards, it is not within the power of the county court to lay off and establish a public road over such yards without special legislative authority so to do. Such authority is not included, as we have stated, under the general power vested in the county court to establish public roads. The question is one of very great importance and in various phases, depending upon the facts in the particular case, the question of the right to exercise the power of eminent domain over land that under such power has already been devoted to the use of the public, has been before many courts of last resort in this country. It is unnecessary to review them all. Suffice it to say, that under statutes conferring general power similar to that conferred by section 5226, supra, the power does not exist in the county court to condemn for a public highway land which has been purchased, and which is being used by, railroad companies, for yards. Such power can only be exercised by express legislative authority. The cases establishing this doctrine are cited and succinctly and correctly reviewed in the excellent brief of counsel for the appellants. In New York, S. & W. R. Co., Prosecutor, v. Mayor, etc., of City of Paterson, 61 N. J. Law, 408, 39 A. 680, the court states the doctrine as follows:

"Under the authority given by the charter of the city of Paterson to lay out and open streets, and to take such lands as may be necessary therefor, upon making compensation, the city has no power to lay out a street through land used by a railroad company as a freight yard, when it will deprive the company of the beneficial use of such freight yard, and compel it to transfer its freight business to another locality. To authorize such an invasion of the rights of the company, there must be an express grant of power by the Legislature, or an implication equally conclusive. Such power will not be inferred from the general authority granted to lay out and open streets." Winona & St. P. Ry. Co. v. City of Watertown, 4 S. D. 323, 56 N. W. 1077.

See, also, C., R. I. & P. Ry. Co. v. Williams (C. C.) 148 F. 442; Richmond, F. & P. Ry. Co. v. Johnston, 103 Va. 456, 49 S. E. 496; St. Louis & San Francisco Ry. Co. v. City of Tulsa (D. C.) 213 F. 87; Pros. Park & C. I. R. Ry. Co. v. Williamson, 91 N. Y. 552, 561; Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167. See, also, St. Paul Union Dep. Co. v. City of St. Paul, 30 Minn. 359, 15 N. W. 684; Town of Alvord v. Great Northern Ry. Co., 179 Iowa, 465, 161 N. W. 467; In re Saratoga Ave. in City of New York, 226 N. Y. 128, 123 N. E. 197; B. & O. Ry. Co. v. North, 103 Ind. 486, 3 N. E. 144; City of Seymour v. J., M. & I. Ry. Co., 126 Ind. 466, 26 N. E. 188; City of Ft. Wayne v. Lake Shore Ry. Co., 132 Ind. 558, 32 N. E. 215, 18 L. R. A. 367, 32 Am. St. Rep. 277; City of Terre Haute v. Evansville & T. H. Ry. Co., 149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189.

The rationale of the doctrine is that lands once taken and devoted under the power of eminent domain for a public purpose cannot be taken under the same power for a...