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

• Decision Date: 23 February 1889
• Citation: 11 S.W. 96,51 Ark. 235
• Parties: ORGAN v. MEMPHIS AND LITTLE ROCK RAILROAD CO
• Court: Arkansas Supreme Court

11 S.W. 96

51 Ark. 235

ORGAN v. MEMPHIS AND LITTLE ROCK RAILROAD CO

Supreme Court of Arkansas

February 23, 1889

APPEAL from Crittenden Circuit Court in Chancery, W. H. Cafe, Judge.

Judgment reversed and caused remanded.

W. M Randolph and T. B. Turley, for appellants.

1. That plaintiff's remedy was at law is no ground to dismiss the bill for want of equity. The cause should have been transferred and have proceeded on its merits. Sec. 4925 Mansf. Dig.; Ib., secs. 4997-8. The error, if any, was waived by the failure to move for its correction. 26 Ark. 54; 31 Id., 411, 422; 32 Id., 562.

See also 13 Ark. 193; 14 Id., 50; 15 Id., 307; 17 Id., 340; 18 Id., 583; 2 Johns. Ch'y, 369; 4 Cold., 370; 5 Id., 240.

2. The appropriate remedy was in equity, because a court of law was inadequate to afford the protection plaintiffs were entitled to. The constitution and laws of this State provide no remedy at law, save only his right to compensation for the land before the railroad takes it. Const., 1868, art. V., sec. 48; Const., 1874, art. XIII., sec. 9; Mansf. Dig., secs. 5447 5458, 5467; 31 Ark. 494. Conceding that plaintiffs had the right to maintain an action at law, (2 Wood R. Law, sec. 245 p. 797; Mansf. Dig., secs. 2637-9, 2640, 2643; 28 Ark. 460; 41 Id., 202,) the question 'is whether the remedy afforded was such as they were entitled to. 33 Ark, 633; 13 Ark. 198; 43 Id., 111; Wood Ry. Law, Vol. 2, sec. 344, p 794; 1, Rorer on R. R., p. 334; Kern on Inj. in Eq., ch. 17, sec. 10, p. 296; 40 Wis. 653; 127 Mass. 571; 30 Wis. 105; 12 Id., 16; 20 A. and E. R. cases, 379; 22 Ib., 81; 64 Mo. 453; 6 Cold., 162; 7 Heisk. 518; 13 Lea, 669; Bish. Eq., sec. 37; 37 Ark. 164, 286. These cases show that when the remedy at law is inadequate, equity will relieve by injunction or other appropriate remedy.

3. DEFENDANTS CLAIM UNDER SECTIONS 15 AND 16 OF ACT OF JANUARY 11, 1853.

It has been seen that the railroad company defendant does not claim ever to have purchased the property, on which it has put down its tracks, or which it is using in connection with its incline and transfer boat, and that the only title which it sets up is such as has resulted from its occupation of the premises, and secs. 15 and 16 of the charter of the old Memphis and Little Rock Railroad Company, granted by the General Assembly, and approved on the 11th of January, 1853. Acts of 1852-1853, pp. 133-135.

But sec. 15 was never complied with, the road having Been completed long Before the land in controversy was appropriated by defendant or its predecessors. Sec. 16 has no application and affords no protection. Especially so in view of art. V., sec. 48, Const. 1868, and art. XIII., sec. 9, Const. 1874. Sec. 16 could have no force after the adoption of the provisions of the Const. 1868 and 1874. But the Memphis and Little Rock Railway Company was a distinct corporation from the Memphis and Little Roe Railroad Company, and was organized under the general laws of Arkansas, and the present corporation, the Memphis and Little Rock Railroad Company, as reorganized, is not the same corporation created by act January, 1853; 112 U.S. 609. The present corporation does not antedate the present Constitution and is not entitled to any of the special privileges, immunities or exemptions contained in the original charter. Art. 2, sec. 18, Const. 1874; 41 Ark. 202; 112 U.S. 609.

Besides, sec. 16 was unconstitutional. 3 Humph., 483; 2 Sneed, 104; Cooley Const. Lim., ch. XI., p. 351; 10 Yerger, 71-80; 13 Ark. 206-211.

4. EXTENT AND CHARACTER OF PLAINTIFF'S RIGHTS AND DEFENDANT'S WANT OF TITLE.

Sec. 5258, Rev. St., U.S. merely gave the consent of Congress to the operation of railroads between States, and glare no right to occupy land of others and appropriate their riparian rights. 5 Amend. Const. U.S. Plaintiffs are entitled to the banks of the river and the use of the water in the river, as much so as they are to the land. It is a valuable right, and they are injured as effectually by taking one as the other. Tiedeman Lim. Pol. Powers, p. 397, sec. 121, d.; 13 Wall. 166; 10 Wall. 497; 1 Black., U. S. S.C. 23; 24 How., 41; 4 Mo. 343; 7 Wall. 272; 82 Mo. 367; 113 U.S. 567; 102 U.S. 180. Plaintiffs also had the right of ferry. Mansf. Dig., sec. 3309. This is a valuable right as property, though they had no license. 20 Ark. 561; 25 Id., 26; 26 Id., 464; 44 Id., 184; 1 Black., 603; 3 Yerger, 386.

A railroad cannot acquire any right whatever in the land or riparian rights until compensation is paid; and one corporation succeeding another which has undertaken to take property in the exercise of the right of eminent domain, is equally bound with its predecessors to pay the compensation in all cases where it accepts and uses the property, and no compensation has been made for it. 18 Wis. 155; 37 Id., 319; 40 Id., 653; 127 Mass. 571; 59 Pa. 290; 37 Ark. 23; Ib., 164; 20 A. and E. R. Cases, 379.; 44 Id., 258; 45 Id., 252; 28 Id., 465.

5. As to defendant's plea of occupation and the statute of limitations. This suit was brought July, 1880. The occupation of the old Memphis and Little Rock Railroad Company scarcely goes behind the year 1871, and as to the present company not beyond its organization, May 1, 1877. From the continual changes occurring by reason of caving, etc., it has occupied no particular locality connectedly or continuously long enough to bar plaintiffs. 47 Ark. 66; 11 Lea, 382; 24 Am. Law Reg., 432. Defendant had no color of title, and its occupancy would be limited to the land actually occupied continuously. 115 U.S. 407. The legislature has provided no time within which the owner of property taken by exercise of the right of eminent domain may sue to recover compensation, the theory being that compensation must be had prior to the condemnation. If the defendant is a corporation at all, it became one under the general laws of Arkansas, with all the restrictions imposed by the Constitution of 1874. 112 U.S. 609. It cannot tack its possession to that of its predecessors. Wood Lim., sec. 271, p. 579; Ib., sec. 256, p. 513. Defendant has never claimed to enter upon possession under any title, and the rule is that possession thus acquired is treated as held in subservience to the legal title, and however long continued can never ripen into an adverse title. Wood Lim., sec. 256, etc.; 115 U.S. supra; 2 Wall. 328. By constant changing of its tracks, etc., neither the defendant or its predecessors have occupied any portion of the land for a connected period of three years before suit. The possession must be actual, visible, continuous, notorious, distinct and hostile. Wood Lim., sec. 257; 22 Ark. 79; 33 Id., 150; 27 Id., 77; 24 Id., 371; 42 Id., 118; Wood Ry. Law, sec. 244, p. 791; 35 Ark. 541.

Most of the plaintiffs are married women and minors and are not barred even if the statute ran. 40 Ark. 108.

6. The value of the land taken, or injured and the value of the riparian rights appropriated, is the measure of the plaintiffs' recovery. They are entitled to the largest price they will bring for any purpose whatever. 98 U.S. 403; 41 Ark. 202; 10 Bush. (Ky.,) 382.

7. The heirs and devisees of Winchester were the proper parties to sue. 5 Ark. 608, 629; 8 Ark. 9; 21 Id., 65; 31 Id. , 576; 32 Id., 297; 34 Id., 391; 40 Id., 102; 42 Id., 25; 27 Id., 235; 30 Id., 775. There are no debts to be paid, and the lands have long since been partitioned to the heirs and devisees, and are not needed for purposes of administration.

8. The partition between Overton and Winchester's devises, by which they divided the lands and held the riparian rights in common, cannot be objected to by defendants. It does not concern them. Similar partitions have been made and sanctioned. I Washb. R. P., p. 429, sec. 7, par. 10; 1 Hoffm. Chy., 506. The decree making partition binds all parties and third parties owning no interest. 58 Barb., 58; Freeman on Judg., sec. 304. That decree cannot be inquired into collaterally. 102 U.S. 461; 22 How., 1. See, also, Mansf. Dig., sec. 4802.

U. M. & G. B. Rose, for appellees.

The original complaint by the devisees of Winchester was for compensation for taking their lands for railroad purposes. The amended complaint in which Overton is joined as plaintiff is no longer for the taking of the land, but is for the breach of a personal contract to pay for the rent of a ferry franchise granted by the State of Tennessee. The land had been partitioned in severalty and Overton and Winchester's devisees could not join in a suit to recover damages for entry upon their several tracts. 27 Hun., 582. This was a misjoinder of parties.

The complaint states that the land was very valuable when it was filed; the question of value is to be considered with regard to the time of the taking of the land, and as no such value is set forth, the complaint shows no cause of action. 70 Ala. 227.

The railroad was built on the land in 1858 or 1859, and yet counsel begin their arguments by quoting the constitution of 1868, as showing the power the railroad had in regard to taking possession of the land.

The plaintiffs' remedy was adequate at law. 2 Wood on Ry. Law, sec. 245, p. 797. No new legislative remedy was required as the old ones were amply sufficient. 70 Ala. 227; 29 Minn. 256; 54 Wis. 136.

It is said repeated trespasses afford a ground of equitable jurisdiction. But no trespasses are shown. The complaint states the railroad company went on the land by consent, and the only complaint is cutting timber and removing earth, and there is no proof of this.

This suit was simply one for damages and could not be brought in equity. Nor was there any ground for injunction, since the statute gave express power to enter on the land to build the road; and, moreover, the plaintiffs state that consent...