McKennon v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 23 February 1901
• Parties: MCKENNON v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

61 S.W. 383

69 Ark. 104

MCKENNON v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

February 23, 1901

Appeal from Johnson Circuit Court, WILLIAM L. MOOSE, Judge.

STATEMENT BY THE COURT.

On the 8th day of August, 1898, appellant filed his complaint in the Johnson circuit court against appellee, alleging, in substance, that he is the owner and entitled to the possession of land twenty-five feet in width on each side of the right of way of the Little Rock & Fort Smith Railroad passing through the southeast quarter of the northeast quarter, section 7, township 9 north, range 23 west, of which appellees are in the wrongful and unlawful possession, and prays a recovery of said lands and damages, and states in the complaint his chain of title. At the May term of this court 1899, a trial was had without answer, it being agreed and understood that the same might be filed after the trial, the purport of it being at the time stated; and now, it not having been filed and not appearing in the transcript, it is agreed that it may be filed here, and treated as a part of the transcript. This answer says that the strips of land sought to be recovered are a portion of its right of way in Johnson county, Arkansas, and that appellees have been using said strips of land as a portion of its right of way for more than twenty years; and that early in the year 1893, at a time when appellees were enclosing their right of way through that portion of Johnson county where these lands and other contiguous lands lie, they enclosed these two strips of lands as a portion of their right of way; and that since that time appellees have maintained these strips of land, along with other lands, as a portion of its right of way; that said strips are absolutely necessary to the complete and successful operation of its line of road, and are necessary to give them the right of way authorized by the statutes of the state; and that they knew of no adverse claim of appellant to said strips until the suit was brought. The answer further says appellant is prohibited from maintaining his action in ejectment to recover these lands by the laws of this state. On the trial A. M. McKennon testified as follows "I am the plaintiff in this action, and the owner of the land for the recovery of which this action is brought. I bought the same from E. T. McConnell on the 31st day of March, 1893. The lands lie near the railroad track, and were enclosed by defendant some time during the month of June 1893. The railroad company's right of way through the forty-acre tract of which this land is a part is only fifty feet in width, the land sued for being two tracts or parcels lying adjoining said right of way on either side, each tract being twenty-five feet in width. The former owners of the land had cultivated up to defendant's right of way. While owned by E. T. McConnell, who was defendant's land agent, he cultivated it up to a ditch at the foot of the dump of the roadbed. The right of way of defendant along the track is 100 feet on the lands adjoining the tract in controversy, and when defendant fenced in the road the fence was made the same distance from the track on my land that it was where defendant had a 100 foot right of way; and this is the only use to which the land in controversy has been put by defendant. The rental value of this land is four dollars per acre per year. Estimating the damages in this way, I have been damaged in the sum of eighteen dollars for the last three years, there being an acre and a little more than a half of the land." He then read his title deeds. This was all the evidence in the cause.

The court, upon motion of appellee, instructed the jury to find a verdict for it, to which appellant at the time excepted. After verdict appellant filed his motion for new trial, setting up as ground that the verdict is contrary to law, contrary to the evidence, and that the court erred in instructing the jury to find for the defendant, which motion the court overruled, and appellant excepted, prayed an appeal to the supreme court, which was granted, and subsequently filed bill of exceptions, time having been given him; and now, since his case is here, the foregoing is a correct statement of it.

Judgment reversed and cause remanded.

J. E. Cravens, for appellant.

Appellee, having already condemned land for its right of way, is bound by its election. 23 Am. & Eng. R. Cas. 72.

Dodge & Johnson and Oscar L. Miles, for appellee.

Since the passage of the act of April 11, 1893, ejectment will not lie for the recovery of land appropriated for a right of way by a railroad company. Cf. 31 Ark. 508. Under the law of this state, appellant is estopped to maintain ejectment for this portion of defendant's right of way, even though ejectment were a proper remedy. 51 Ark. 265; 51 Ark. 500.

HUGHES J. BATTLE, J., dissents.

OPINION

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