Organ v. Memphis & L. R. R. Co.

• Decision Date: 23 February 1889
• Citation: 11 S.W. 96
• Parties: ORGAN <I>et al.</I> <I>v.</I> MEMPHIS & L. R. R. CO.
• Court: Arkansas Supreme Court

Page 96

11 S.W. 96

ORGAN et al.

v. MEMPHIS & L. R. R. CO.

Supreme Court of Arkansas.

February 23, 1889.

Appeal from circuit court, Crittenden county; W. H. CATE, Judge.

W.M. Randolph and T.B. Turley, for appellants. U. M. & G. B. Rose, for appellee.

BATTLE, J.

On the 3d day of August, 1880, the appellants commenced this action against appellee in the Crittenden circuit court, on its equity side. They allege in their complaint that Marcus B. Winchester and John Overton jointly owned the N. ½ of Spanish grant No. 2,337, in township 6 N., ranges 9 and 10 E., and fronting on the west bank of the Mississippi river, in Crittenden county, Ark., just opposite the upper part of the city of Memphis; that Winchester died in the year 1856, leaving a last will and testament; that the land had been divided between Overton and the devisees of Winchester and their representatives, to whom the interest of Winchester belongs; and that the riparian rights pertaining to the land, by consent, were not divided, but remain the joint property of appellants. They further allege that about the 8th day of November, 1872, the Memphis & Little Rock Railroad Company, without their consent, entered upon the land, and constructed its railroad across the entire tract, until it reached the Mississippi river; that in constructing its railroad the company excavated and filled and otherwise changed the face of the tract, and cut timber and took earth therefrom, and used the same, and had thereby greatly impaired the use and reduced the value of the land; and that the place where the tract extends to the river is on land set apart in the division to Overton. They further state that on the 8th of May, 1872, one Greenlaw, who was the manager, superintendent, or chief executive officer of the Memphis & Little Rock Railroad Company, leased from Overton his undivided one-half interest in the ferry privilege belonging to the land, so far only as to allow Greenlaw to run a transfer boat between the eastern terminus of the railroad and Memphis, for the purpose of transferring freight and passenger cars, with their freight and cargoes; that as soon as he obtained the lease he began running a transfer boat under it, transferring the cars of the railroad company, with their contents, to and from the Tennessee and Arkansas shores, the point of landing on the Arkansas shore being at the place where the railroad touched the river on the land of appellants; and that the railroad company had constructed and maintained an inclined railway, leading from the top of the bank of the river into the river, and other appurtenances, for transferring cars to and from the transfer boats; that the Memphis & Little Rock Railroad Company and appellee had constructed side tracks, buildings, structures, and appurtenances, both on the banks and along the margin of the river; that the side tracks ran up and down the river front, the one way upon the land set apart to Overton, and the other upon the land allotted in the division to the devisees and representatives of Winchester, for several hundred yards; that the railroad companies had moored and anchored a wharf-boat in the river in front of the land of appellants, and had securely fastened the same to the shore, and had constructed or located an elevator on the wharf-boat for the handling of the freight transported by appellee, and had built along the margin of the river and upon its bank a platform to be used in connection with the wharf-boat and elevator, for the loading and unloading of cars; that Greenlaw continued to run the transfer boat for several years, and so long as he remained the managing officer of the railroad company; that afterwards, and when he had ceased to be the managing officer of the Memphis & Little Rock Railroad Company, the transfer boat and his right to run the same were transferred to the last-mentioned company, which continued to run it, transporting thereon its cars, with their freight cargoes and passengers, between the Arkansas and Tennessee shores, to and fro, until it was succeeded by appellee, which, claiming it had acquired all the property of that company, and had succeeded to its rights, had since then been using and operating its railroad upon and across the lands of appellants, and the side tracks, switches, and buildings thereon, and had continued to run the transfer boat, and was then running it, in the same manner it had been run by its predecessors; that neither the Memphis & Little Rock Railroad Company, nor the appellee, nor any one else, had ever caused the land, or any part of it, to be lawfully condemned for the uses for which it had been appropriated, or acquired the right to go upon or pass over or use the land, or the riparian rights thereto belonging, or paid anything whatever for the use of the riparian rights or the land, or the rights and appurtenances belonging thereto, or for damages, or the timber and earth taken therefrom, or for incidental injuries to the land. The prayer of the complaint was that an injunction be issued restraining appellee from further occupying or using the land, or any part of it, and the riparian rights and privileges thereto belonging, and from running the transfer boat perpetually, or until it pay just compensation therefor, to be fixed by the court; and that the amount due appellants on all the grounds and accounts set out in their complaint, from the appellee and its predecessor, might be ascertained by proper accounts; and that appellants have a decree therefor, and execution of such decree, and all other just, proper, and general relief. Appellee answered the complaint, and demurred thereto — First, because the appellants had not the legal capacity to sue on account of the matters stated therein; and, second, because it did not state facts sufficient to constitute a cause of action; denied it was liable to appellants in any manner on account of what is alleged therein, stated the reasons why it was not liable, and pleaded the statute of limitations in bar of the right to maintain the action.

Depositions of witnesses and agreements of the parties as to facts were filed and submitted to the court. From this evidence we find the following facts: The Memphis & Little Rock Railroad Company was chartered by an act of the general assembly of this state approved January 11, 1853. The company was formed soon after the act incorporating it was passed. On the 1st of May, 1860, it conveyed to Tate and others its charter, franchises, road, road-bed, right of way, and all its other property, in trust, to secure the payment of its certain bonds mentioned in the conveyance, with power to sell the property on default by the company. Afterwards, on the 1st of March, 1871, it executed a second deed of trust, conveying all its property and franchises to Henry F. Vail, in trust for the holders of bonds secured thereby, subject to the first deed of trust. Default having been made in the payments due on the bonds secured by the latter deed of trust, Vail, the trustee, in execution of the power vested in him, sold and conveyed the property described therein, on the 17th of March, 1873, to Stillman Witt. Afterwards, on the 29th of March, 1873, Witt made a declaration showing for whom he had purchased, and that he held in trust for them. On the 9th of December following, the grantor and grantees in the declaration of trust so made by Witt organized a company called the "Memphis & Little Rock Railway Company," to which the property sold by Vail was conveyed. This railway company issued its bonds, and to secure the same, by a deed of trust, conveyed all the property, privileges, and franchises so acquired by it to trustees, in trust for its bondholders. Both of these companies made default in the payments due on the bonds secured by the deed of trust executed by them. Afterwards a suit in equity was instituted by the trustees against the two companies to foreclose these deeds of trust, in which a final decree was rendered ordering a sale of the property described in the same; and a sale thereof was made and confirmed, and a conveyance of the same was made to certain persons in trust for the holders of certain bonds. On April 28, 1877, the holders of these formed the appellee, the Memphis & Little Rock Railroad Company, as reorganized. Afterwards, on the 30th day of April, 1877, the last-named trustees conveyed the charter, franchises, and property vested in them to the appellee. It is conceded that the tract of land described in the complaint was acquired by Overton and Winchester as early as the year 1846, and that they held possession of the land, jointly, to the death of Winchester; that Winchester died in 1856, leaving a will; that William Vance was appointed and qualified as the executor of such will; that Overton and the executor and devisees of Winchester held joint possession after that time, and until the partition mentioned in the complaint, which was made in the manner stated in the complaint at the April term, 1873, of the circuit court of Crittenden county; and that since such partition Overton and Winchester's devisees and heirs have held possession in severalty of the land set apart to them, and jointly of the riparian rights belonging to the whole tract of land, except in so far as the appellee and its predecessors, the Memphis & Little Rock Railroad Company and the Memphis & Little Rock Railway Company, have held and possessed parts of the same; and that Vance has never been discharged, but is still acting as executor of Winchester's will. On the 23d of May, 1856, the Memphis & Hopefield Real-Estate Stock Association, in consideration that the Memphis & Little Rock Railroad Company would locate its eastern terminus and depot on the land given, gave and conveyed to it 20 acres of ground, lying 423 feet west of the Mississippi river, opposite Memphis, in what is known as the "Town-Site of Hopefield," in Crittenden county, in this state. The...