Mountain Park Terminal Railway Co. v. Field

• Decision Date: 01 July 1905
• Citation: 88 S.W. 897,76 Ark. 239
• Parties: MOUNTAIN PARK TERMINAL RAILWAY COMPANY v. FIELD
• Court: Arkansas Supreme Court

88 S.W. 897

76 Ark. 239

MOUNTAIN PARK TERMINAL RAILWAY COMPANY v. FIELD

Supreme Court of Arkansas

July 1, 1905

Appeal from Pulaski Circuit Court EDWARD W. WINFIELD, Judge. Reversed.

Judgment reversed and cause remanded.

H. M Armistead and John McClure, for appellants.

Under sections 6545-6 of Kirby's Digest, the sole power of determining whether a particular railroad will be for the benefit of the public is vested in the board of railroad incorporation, and its decisions thereon are final and conclusive. The answer of defendants should have been stricken from the files. See, generally, upon the right of railroad companies to take private property under condenmation proceedngs, and the procedure necessary therein Const. art. 17, § 1; Ib. art. 2, § 22; Ib. art. 12 § 9; Ib. art. 9, § 12.

The proceeding for condemnation being a statutory one, no issues can properly be raised save those provided for by the statute. Hence in this suit at law the only proper issues were the value of the land and the damages to the owner from taking same. Kirby's Dig. §§ 2947, 2952, 2955; 52 Ark. 340; 81 Mo. 135; 45 Ark. 280; 105 Ill. 511; 38 N.J.L 18; 13 Mo.App. 32; 43 Ark. 120; 42 Neb. 327; 3 Ore. 95.

For statutes of other States allowing other issues to be raised, see R. S. Wis. 1361; 3 R. S. N. Y. ch. 282, 1869. The right of a railroad corporation, duly organized, to exercise the right of eminent domain cannot be assailed in a condemnation proceeding. 57 Ark. 364; 32 Cal. 253; 71 Ill. 333; 30 Gratt. 799; 56 S.W. 833; 33 Oh. St. 436; 161 Mo. 305; 133 N.C. 136; 92 N.C. 578; 69 P. 572; 32 N.J.Eq. 759; 23 Cal. 325; 112 Ill. 601; 3 Ore. 165; 43 Ark. 120. There was no testimony before the court sufficient to authorize it to find that the railroad was not a public corporation, even if it had jurisdiction to enter upon such an inquiry.

Rose, Hemingway & Rose, and J. W. & M. House, for appellees.

The action of the board of railroad incorporation was not conclusive. This board is an unconstitutional body. Cf. Const. Ark. art 12, §§ 2-6; Ib. art. 17, § 1. The facts in this case show a clear abuse of a public franchise. The court properly refused to strike the answer. 33 Am. Ry. Cas. 99; 24 Am. & Eng. Ry. Cas. 261; 43 N.Y. 137; L. R. A. 680, 690; 59 Am. Rep. 379; 20 Am. & Eng. Ry. Cas. (N. S.) 619, 620; Lewis, Em. Dom. § 393; 83 N.W. 294, S. C. 107 Wis. 192.

OPINION

BATTLE, J.

On the 20th of April, 1904, Mountan Park Terminal Railway Company filed a petition for condemnation of a right of way through certain lands of W. H. Field and others. "The petition is in the usual form, alleging the incorporation of the railroad company; the route of said railroad; that its road is surveyed and located in Pulaski County; that the defendants are the owners of certain lands, which are described; that said lands are unimproved; that it has failed to obtain the right of way over the said land by an agreement with the owner thereof; that it is desirous of beginning work on its railroad; and asks the court to designate a sum of money to be deposited by plaintiff for the purpose of making compensation, etc., and that a jury be impaneled to ascertain the amount of compensation to which the owners of said land may be entitled, and that an appropriate order and judgment be entered, vesting the petitioner with a right of way one hundred feet in width through said land, etc.

"Notice was only served on the defendants, notifying them that on a certain date the plaintiff would apply to the judge of the second division of the Pulaski Circuit Court for an order fixing the amount of the possible damages that would result from the construction of said railroad over the land of the defendant."

On the 7th day of May, 1904, the defendant filed an answer as follows:

"The defendants deny the right of the plaintiff to maintain this condemnation proceeding, and say that the plaintiff was not organized in good faith for the purpose of building a railroad, nor for any public purpose, but is organized solely to carry out the private enterprise of one Charles M. Newton, who has subscribed for substantially all of the stock of said company. The fact is that on the south side of the Choctaw, Oklahoma & Gulf Railroad, along where the line of plaintiff is sought to be constructed, there is a high hill, composed entirely of stone, that is valuable for crushing into small fragments of stone, suitable for ballasting railroads, making macadam highways, the construction of concrete and other like purposes. The front of these hills cannot be utilized, because any rock blasted from them would fall upon the track of the Choctaw, Oklahoma & Gulf Railroad; but at a point where the plaintiff seeks to condemn there is a narrow gorge, penetrating said hill, up which a railroad track can be built, for a short distance, but the part of said hills, adjacent to the right of way of said railroad, belongs to defendants, who contemplate the erection of a crushing plant in said gorge. A part more remote, and further up said gorge, belongs to said Newton, who also desires to put in a crusher; but said gorge is so narrow that, if a railroad track is constructed up said gorge, so as to reach the property of said Newton, it will preclude these defendants from the erection of any crusher for their own use, and will also destroy the value of the great rock deposits which they may possess in that vicinity. The sole purpose of said Newton in seeking to condemn a right of way is merely to traverse the defendant's land in order to get to a crusher of his own, at the sacrifice of the property of these defendants. It is impossible to build said railroad, as laid out, because the grade up to the said property, known as Mountain Park, is so steep that no railroad train could be run upon any railroad that might be built. The said Newton has caused a railroad to be surveyed, only for a distance of about 1,700 feet, just far enough to bring it to the site of his proposed crusher, and at this point the railroad survey sinks to a depth of twelve feet, into the hill, and further progress is impossible. Defendants deny that said plaintiff ever contemplates building any further or doing more than to construct a switch to reach a crusher of said Newton, and they deny that any public purpose will be subserved by the building of the proposed railroad. The railroad of the plaintiff is laid out to run from the city of Little Rock to said Mountain Park; but these defendants say this is merely a pretense and a scheme to perpetrate a fraud upon the law and upon this honorable court, and that the plaintiff has taken no steps to acquire the right of way, save the few feet that are necessary to reach from the Choctaw, Oklahoma & Gulf Railroad, to the site of the proposed crusher of the said Newton."

Plaintiff filed a motion to strike the answer from the files of the court, and on the 21st of May, 1904, the court overruled the same. After hearing the evidence, the court found that the proposed construction is for private purposes, and the right of eminent domain does not exist in this case, and dismissed the petition.

Did the court err in overruling the motion to strike the answer from the files?

The proceeding prescribed by statute for the condemnation of land for right of way for a railroad is special. Section 2947 of Kirby's Digest provides: "Any railroad * * * company, organized under the laws of this State, after having surveyed and located its lines of railroad, * * * shall, in all cases where such companies fail to obtain, by agreement with the owner of the property through...