Little Rock & fort Smith Railway Company v. Greer

• Decision Date: 06 January 1906
• Citation: 96 S.W. 129,77 Ark. 387
• Parties: LITTLE ROCK & FORT SMITH RAILWAY COMPANY v. GREER
• Court: Arkansas Supreme Court

96 S.W. 129

77 Ark. 387

LITTLE ROCK & FORT SMITH RAILWAY COMPANY v. GREER

Supreme Court of Arkansas

January 6, 1906

[Copyrighted Material Omitted]

Appeal from Conway Circuit Court; WILLIAM L. MOOSE, Judge; affirmed.

Robert L. Greer sued the Little Rock & Ft. Smith Railway Company alleging that he owned a dwelling house situated on Railroad Avenue, in the city of Morrilton; that defendant filled in its roadbed opposite plaintiff's premises, obstructing the public street, so as to prevent plaintiff and the public from the free use and enjoyment thereof in front of plaintiff's residence. The prayer was for $ 500 damages. There was an agreed statement of facts which recited the following facts:

"The plaintiff, R. L. Greer, is the owner of a certain lot or tract of land fronting and abutting upon Railroad Avenue, one of the principal streets in the city of Morrilton. The property is about 70 feet front and about 365 feet back. The plaintiff acquired title to the same by deed of conveyance from M. D. Shelby on the 22d day of April, 1896. He entered into possession of the same, and improved it by remodeling a certain house then standing upon it, and fixed his residence and began to reside upon and does now reside upon the same. Prior to the time the plaintiff acquired his property in the premises, and prior to the time when the defendant constructed its line of road along and near to said premises there was a public highway established and maintained along the north side of what was appropriated by defendant. The city of Morrilton, after the construction of said railroad, was laid out and built up along both sides of said railroad for a distance of about one mile. Within this distance of one mile is situated the premises of the plaintiff, but said premises were not regularly laid out and platted as any portion of said town of Morrilton. The said public highway afterward became known and recognized as the said Railroad Avenue above referred to. The said Railroad Avenue has been, since time prior to the construction of said railroad, continuously used as a public highway and as Railroad Avenue. * * * The defendant's road was constructed along said highway in the year 1871. * * * The said defendant company originally constructed its road along the south side of the old public highway, now known as Railroad Avenue, practically on the surface level, just opposite the plaintiff's property there being a slight cut, and continued to maintain and operate its said road along said line, claiming a right of way of 49 1/2 feet on each side from the center of the same. * * * Along in front of plaintiff's premises, the ground was practically level out to where the defendant's cut began, which was 6 1/2 feet from the end of the ties. In the early spring of 1902, the defendant railroad company elevated its grade line at the point in controversy to a height of 11 feet. In the elevation of the grade line, it constructed an embankment or dump upon which to operate its road. The said dump, at its top, is about 24 feet wide, that is to say, 12 feet wide on either side of the center line of the track. The base of said dump on the north side, and next to the plaintiff's premises, is 26 feet wide, measured from a perpendicular line dropped from the center of the track. There is yet between the base of said dump and sidewalk in front of plaintiff's premises a space of 18 feet, along which space the public highway, Railroad Avenue, now runs. Immediately next to plaintiff's premises there is now a sidewalk of six feet wide. The plaintiff's house is set back from the north of said sidewalk a distance of 28 1/2 feet to the front porch. It is 14 inches high from the ground, which is practically on a level with the said street. The residence portion of the city of Morrilton is practically divided by the railroad at the point in controversy. Before the construction of the embankment above mentioned, the railroad could be crossed by pedestrians at any point opposite the plaintiff's dwelling. It can now be crossed only by climbing over the said embankment, which rises at an angle of 45 degrees, or else by going 240 yards along said highway to the west, at which point the railroad company has constructed an underground crossing for persons, animals and teams. This is in an opposite direction from the business portion of the town, and just outside the corporate line, a distance of 20 or 30 feet. Persons crossing at the underground crossing mentioned are compelled to cross the property of an oil mill, located on the south side of the railroad, near said underground crossing, and go a distance of 750 feet to Church Street in order to turn back east one block toward the business portion of town, and to turn north in order to reach the dwellings on the south side of the railroad opposite plaintiff's property. Before the construction of the present embankment, there had been maintained for a long number of years a public crossing over defendant's railroad at a point 180 feet east of plaintiff's property. Said crossing has been closed by the construction of said embankment, and has not since been opened. Since the construction of said embankment it is impracticable to cross the same with vehicles of any kind. The nearest open crossing at this time at which the railroad may be crossed east of Greer's property, and toward the business part of the city, is 400 yards.

"It is agreed that the directors of the Little Rock & Fort Smith Railway, having decided that it was impracticable to operate its line of road and promptly move the traffic offered to it for shipment, on its present degree of curvature, and on its established maximum grade line, in April, 1902, passed at their annual meeting in the city of Little Rock, Arkansas, a resolution authorizing the re-establishment of its line of road on the same and different alignment and on a maximum of six-tenths of one per cent, grade line; that in pursuance to this resolution the large embankment in front of plaintiff's premises was constructed; that, in the exercise of the highest degree of care and skill in engineering, this large embankment was necessary to the perfect construction of defendant's line of road on the newly established maximum grade line; that said embankment was constructed after the most approved modern method, in the most skillful manner possible.

"For a number of years the defendant has been unable to move promptly the vast amount of freight offered to it for shipment for interstate points and locally. When defendant's line of road has been constructed according to the present plans adopted by its engineering department, each engine and crew of train hands will be able to move approximately sixty per cent. more of freight than such engine and crew has been able to move over the old line, operated with the most consummate skill. In the construction of the embankment in front of plaintiff's premises, defendant did not interfere with or injure physically the premises of the plaintiff. The public highway still exists along the base of said embankment and in front of plaintiff's premises, and wagons and vehicles of standard width are able to travel along and pass each other on said highway at any point. Whatever right of way defendant owns in front of plaintiff's premises, it owned long before plaintiff bought said property or improved the same. Cherokee Street railway crossing, which was closed by the obstruction of said embankment, is within the city limits of Morrilton, and the city authorities have taken no steps to re-establish said crossing, save to attempt to compel the railway company to open again the same. When the defendant's plans for the reconstruction of its road have been fully carried out, it will only be necessary for defendant to operate about half as many trains as at present, and the defendant will reduce fully fifty per cent. the chances of injuries to persons and property by the movement of trains."

The case was tried before the court sitting as a jury. Defendant moved the court to render judgment in its favor on the agreed statement of facts, but the motion was overruled. The court found for the plaintiff, assessing his damages at $ 250. Defendant appealed.

Affirmed.

Oscar L. Miles, for appellant.

When a line of road has been located and constructed, the maintenance of the line of road upon the original location, or upon another, is exclusively within the discretion of the directors. Kirby's Digest, §§ 6570, 6571. The company acquired with its right of way the indefeasable right to do all things necessary to promote the skillful maintenance and operation of its road. 35 Ark. 540; 53 Pa.St. 229. It acquired exclusive right of possession of the right of way. Elliott on Railroads, § 987. A subsequent purchaser takes subject to the burden of the railroad; and the right of payment if the entry was by agreement, or to damages if it was unauthorized, belongs to the owner at the time the company took possession. 3 Am. & Eng. R. Cases (N. S.), 106; 77 Pa.St. 335; 2 Watts, 343; 2 Wood on Railroads, 994; 54 Ga. 293; 107 Ga. 838; 33 S.E. 669; 158 U.S. 1; 72 Ill. 155; 39 Ill. 205; 77 Ill. 275.

Reid & Strait, for appellee.

Private property shall not be taken, appropriated or damaged for public use without just compensation. Const. 1874. The construction of the embankment caused special damage to plaintiff's property, for which he may recover. 45 Ark. 429; Elliott on Roads and Streets, 528; 11 L. R. A. 634 and notes; 23 L. R. A. 674; 51 L. R. A. 319, note.

OPINION

WOOD, J.

The Constitution provides that: "Private property shall not be taken, appropriated or damaged for public use without just compensation therefor." Const. 1874, art 2, § 22. In Hot Springs R. Co. v. Williamson, 45 Ark....