Little Rock & fort Smith Railway Co. v. Alister

Decision Date08 February 1896
Citation34 S.W. 82,62 Ark. 1
PartiesLITTLE ROCK & FORT SMITH RAILWAY COMPANY v. ALISTER
CourtArkansas Supreme Court

Appeal from Franklin Circuit Court, Ozark District, JEPHTHA H EVANS, Judge.

STATEMENT BY THE COURT.

The petition in this case was filed by the railway company for the purpose of condemning a right of way 100 feet wide through section 24, township 9 north, range 26 west, in the county of Franklin. All proper allegations were made and exhibits attached necessary to entitle the plaintiff to have said land condemned. The circuit judge ordered a deposit of $ 20 to be made, to the end that work might begin at once. No answer or reply to the petition was filed by defendants, but on September 27, 1893, a trial was had, and a verdict rendered for $ 2,000 against plaintiff. At the inception of the trial it was admitted before the jury, and agreed to by all parties, that the amount of land embraced in the right of way sought to be condemned was, in area, 2.84 acres, and that the actual value of the same was $ 30.

James Alister, one of the defendants, testified as follows "The plaintiff's line of railway, recently built over the lands described in its complaint, runs where our tipple stood when we were working what is known as the 'Free Labor Slope,' which is situated in Franklin county, Ark., and 50 feet on the north side of its. road measuring from the center of the track, will extend 3 feet on to the dump of dirt and slate taken out of the mine in opening it, and deposited in front of the opening, which dump is about 240 to 260 feet long, extending east and west parallel with the road, and 50 feet wide from north to south and is an average of 10 to 12 feet deep. From the outside or north line of said 50 feet right of way to the original opening or entry of said mine is 87 feet, and from that point to the present opening 35 feet. The tipple, where it originally stood, made a grade from the mine to it quite an easy road, so we could raise the coal from the mine to the tipple with the use of a mule. In order to work the mine now it would require the removal of this dump, of dimensions before stated, which I think would cost $ 800 or $ 1,000. It would be necessary to do this in order to lay the three lines of railway track which would be necessary to deliver the coal on to the cars. The taking of such 50-foot right of way would necessitate the building of the tipple much further north and near the opening or mouth of the slope; and, in order to make the tipple the required height, it would become necessary to raise the road leading into the mine an average of 25 feet for the distance of 150 feet back from the mouth of the mine. In order to do this, the top of the present opening would have to be shot or blasted down, and the road thus built up. Besides this, it would be necessary to build up the road on the outside of the mine from the mouth of the slope to the tipple, a distance of 72 feet, to correspond with the raised condition of road inside the mine. It cost us $ 1,600 to make the opening or slope from the surface down to the coal, and to thus take down the top, and fill up, and elevate the road down the slope, as above stated, would be more difficult and cost more than to make the original opening. I would fix the cost at $ 1,600. My testimony refers solely to what is known as the 'Free Slope,' which is the only matter in controversy, and has nothing to do whatever with what is known as the 'Convict Slope,' situated some 300 yards east of this slope. The line between Johnson and Franklin counties runs about midway between the two slopes, leaving the Convict Slope in Johnson county and the Free Slope in Franklin county, formerly so called because the convicts were once worked in the Johnson county slope, while the Franklin county slope was worked by free labor. My brother and co-defendant, David Alister, and I own both of these mines, which we leased to the Ouita Coal Company June 13, 1885, for the term of twenty years. For a time said company worked both of these mines by convicts and free labor, using both slopes; but when the convicts were removed from Coal Hill, they abandoned their work on the Free Slope altogether, and have never worked it since, but confined their operations solely to the Convict Slope, which abandonment was some two or three years ago. The tipple at the Free Slope was torn away by plaintiff in building its line of railway over the line sought to be condemned. At the time we leased to the Ouita Coal Company, there was no underground connection between the two mines, but there was entry made by the said company, after the convicts were removed, from the convict into the free mine; but since that time the props and pillars have been taken out by the Ouita Coal Company in the western portion of the convict mine, adjacent to the free mine, and the roof...

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