Missouri & North Arkansas Railroad Co. v. Chapman

• Decision Date: 31 October 1921
• Docket Number: 197
• Citation: Missouri & North Arkansas Railroad Co. v. Chapman, 234 S.W. 171, 150 Ark. 334 (Ark. 1921)
• Parties: MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. CHAPMAN
• Court: Arkansas Supreme Court

234 S.W. 171

150 Ark. 334

MISSOURI & NORTH ARKANSAS RAILROAD COMPANY v. CHAPMAN

No. 197

Supreme Court of Arkansas

October 31, 1921

Appeal from White Circuit Court, J. M. Jackson, Judge; reversed in part.

STATEMENT OF FACTS.

Appellees filed their suit in the circuit court against appellant to recover damages for the appropriation of a part of their land for a railroad right-of-way.

Mrs. R D. Chapman owned block 34, in the town of Kensett, White County, Ark.Mrs. Chapman died on February 22, 1904, while living on the block above referred to with her family.At the time of her death she was survived by her husband, J. H Chapman, and appellees, who were their children and sole heirs at law.Two of the children, viz: Charles Chapman and William Chapman, were adults when the land was appropriated by the railroad for a right-of-way.

On the 6th day of February, 1908, J. H. Chapman, the father of appellees, executed a right-of-way deed to the Missouri & North Arkansas Railroad Company, conveying to it a strip of land 100 feet in width across said block above mentioned for a right-of-way for its railroad.The railroad company then took possession and constructed its railroad across said strip of land.It has operated its railroad across said strip of land ever since, and has not paid the appellees any compensation for said right-of-way.J. H. Chapman, the father of appellees and the husband of Mrs. R. D. Chapman, deceased remained in possession of said land, except the strip conveyed to the railroad for a right-of-way, until his death which occurred in July, 1918.The present suit was filed on December 29, 1919.

The jury returned a verdict in favor of appellees, and the case is here on appeal.

Judgment affirmed.

Shouse & Rowland, for appellant.

1.It was error to try the case and charge the jury upon the theory that appellees' damages were to be measured upon the value of the lands at the time of the trial, and to exclude testimony offered by appellant as to the value of the lands in the year 1908, when it was taken.

2.Appellees' cause of action accrued when the railroad company entered upon the land in 1908, under the deed from their father.45 Ark. 252;67 Id. 84.

3.In assessing the damages it must be determined from the market value of the land at the time it was taken.10 R. C. L § 183, p. 214;20 Corpus Juris§ 262 p. 826citing49 Ark. 381;15 Neb. 231; 18 N.W. 51;98 F. 789, 790;67 Ark. 84;129 Ala. 577;29 So. 985.

Brundidge & Neelly, for appellees.

1.Until the death of appellees' father, who had an estate by the curtesy in the property, the possession of the appellant under its deed from him was not hostile, but permissive.42 Ark. 361;1 R. C. L. 758;71 N.Y. 192.There was no entry here without right so as to set the statute of limitation to running from the date of entry; neither did the railway company elect to proceed under the right of eminent domain and bring both the life tenant and the remaindermen into court in one action.

The property was a part of the homestead of appellee, hence the statute of limitations did not begin to run until the youngest child became of age.53 Ark. 400.

2.Appellees were not entitled to possession until after the death of their father, the life tenant, and the value of the land at the time they were entitled to possess it is the correct date from which to measure their damages.There was no error in permitting witnesses to testify as to present market value of the property.The question as to who are competent to give testimony as to the value of land taken and to give their opinions thereon, is one of which is left largely to the discretion of the trial court.103 Ark. 409;88 Ark. 132.

OPINION

HART, J., (after stating the facts).

Appellant filed a plea of the statute of limitations, and claims that Charles Chapman and William Chapman, who were adults at the time their father executed the right-of-way deed and the railroad company took possession of the land for a right-of-way, are barred by the seven-year statute of limitations.The railway company entered into possession of the land under its right-of-way deed in 1908, and the present suit was not filed until in December, 1919.

Sec. 3930 of Crawford & Moses' Digest provides that whenever any corporation, authorized by law to appropriate private property for its use, shall have entered upon and appropriated any property, the owner of the property shall have the right to bring an action against such corporation for damages for such appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations.

In construing this statute, the court has held that it supersedes the common-law remedies afforded the owner, and that the statutory remedy for damages is exclusive.McKennon v. St. L. I. M. & So. Ry.Co., 69 Ark. 104, 61 S.W. 383.The statute fixes the time for bringing the action at any time before the action at law or in equity for recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations.

At common law the owner would have had the right to have brought his suit at any time before the company had acquired the right to the property taken by adverse possession for the statutory period of seven years.Organ v. Memphis & Little Rock Rd. Co., 51 Ark. 235, 11 S.W. 96.Thus it will be seen that under the statute the owners of the land had a right to bring suit for compensation for the land taken by the railroad company for its right-of-way at any time within the period of seven years after the land was taken.

In a case note to 2 A. L. R. at p. 786, it is said that the word, "owner" as used in statutes relating to condemnation proceedings, may be construed to apply to every person having any interest in the property taken.

Again it is said that it embraces not only the owner of the fee, but a tenant for life and the lessee for years and any other persons who have an interest in the property which will be affected by the condemnation.This is in accord with our own decisions relating to the...