Ozark & Cherokee Central Railway Company v. Ferguson

• Decision Date: 08 November 1909
• Parties: OZARK & CHEROKEE CENTRAL RAILWAY COMPANY v. FERGUSON
• Court: Arkansas Supreme Court

122 S.W. 624

92 Ark. 254

OZARK & CHEROKEE CENTRAL RAILWAY COMPANY v. FERGUSON

Supreme Court of Arkansas

November 8, 1909

Appeal from Washington Chancery Court; T. Haden Humphreys Chancellor; reversed.

Decree reversed and cause remanded.

W. P Evans and B. R. Davidson, for appellant.

A suit cannot be maintained upon a title obtained during the pendency thereof. 17 Ark. 443; 21 Ark. 186. A meritorious suit cannot be maintained after three years, even by one who owned the lands at the time they were appropriated. Kirby's Dig. §§ 2093 and 5064. An indorsement upon a note is not a covenant running with the land. 71 Ark 289; 77 Ark. 168. The contract of indorsement on the note having been incorporated in and taken up by a subsequent contract, plaintiff cannot recover thereon. 141 U.S. 510; 24 Ark. 210; 21 Ark. 69; 23 Ark. 557; 2 Ark. 360; 96 U.S. 544. The former contract was merged into the second. 24 Ark. 197; 28 Ark. 387; 48 Ark. 413; 80 Ark. 505.

Purchasing the stock and even electing a board of directors is not taking control. 11 F. 634; 115 U.S. 587; 120 U.S. 649. To control one must take possession. 44 N.W. 558; 15 N.E. 138. He admitted knowledge of the transfer, which is as binding at least in equity, as notice served. 16 Ark. 340; Id. 543; 33 Ark. 465; 55 Ark. 318; 68 Ark. 126.

Walker & Walker, for appellee.

Where part only of a contract is reduced to writing, parol proof of the entire contract is competent. 55 Ark. 112; 58 N.Y. 380; Greenl. Ev. § 284a. Appellants were not entitled to specific performance. 55 S.W. 222. Such an agreement will not be enforced if inequitable under the circumstances. 119 Mo. 28; 92 Mo. 97; Story's Eq. Jur. §§ 769-770.

OPINION

HART, J.

The plaintiff, James A. Ferguson, instituted this action for damages, as provided by the statute, against the Ozark & Cherokee Central Railway Company and St. Louis & San Francisco Railroad Company, alleging that said railroad companies had wrongfully appropriated for their use for railroad purposes certain of his lands in Washington County Arkansas.

The railroad companies filed separate answers, in which they admitted that the Ozark & Cherokee Central Railway Company had entered upon the lands described in plaintiff's complaint and constructed its line of railroad over the same. The defendants asked that the cause be transferred to the chancery court, and for grounds therefor allege facts which, briefly stated, are as follows: They say that in the month of August, 1899, W. A. Bright and others, who constituted the Arkansas Construction Company, were promoting and endeavoring to build a railroad from Fayetteville, Arkansas, to a connection with the Kansas City, Pittsburg & Gulf Railroad Company, and were soliciting from the property-owners rights of way and donations of money, and that the plaintiff, James A. Ferguson, being a large landowner and presumably to receive great benefits from the construction of such road, on the 29th of August, 1899, gave what is called by the parties hereto a subsidy note to said Arkansas Construction Company, its successors and assigns, for the sum of five hundred dollars. The consideration of the note was the benefit which would accrue to Ferguson in the construction and operation of a railroad, commencing at Fayetteville, Arkansas, and extending to and connected with the Kansas City, Pittsburg & Gulf Railway, within the period of 18 months from October 1, 1899, and the erection and maintenance of a depot within the corporate limits of the city of Fayetteville by said Arkansas Construction Company, its successors or assigns. The note was made payable as the work of construction progressed, and the whole was to be paid when the road was completed and in operation within the specified time.

On the 26th day of September, 1899, the time within which to construct the road was extended in writing until October 1, 1902, upon condition that the railroad to be constructed should not pass into the control of the St. Louis & San Francisco Railroad Company within three years and six months from October 1, 1899. That on the 8th day of November, 1899, said James A. Ferguson, in consideration of the benefits to be derived from the construction of said railroad in the county of Washington and State of Arkansas, conveyed to said railroad company a right of way over his lands, 100 feet wide, and depot grounds to be selected and located by the engineers of the railroad company. The conveyance was made upon condition that the railroad be built and in operation within said county of Washington within one year.

On the 13th day of January, 1902, said James A. Ferguson gave an option deed to the Ozark & Cherokee Central Railway Company, assignee to the Arkansas Construction Company, in which he obligated himself at any time within 60 days to convey to said railway company a strip of ground 100 feet in width for a right of way over his lands, upon which the railroad was already located; also depot grounds 100 feet wide and 600 feet long, terminal facilities and right of way over Ferguson's Addition to the town of Fayetteville; and also in section 5 of said contract such lands of specified dimensions as the railroad company might select over certain other of his lands for yard room and grounds. The purchase price to be paid therefor by the railroad company was the sum of five hundred dollars, represented by the subsidy note of the said James A. Ferguson then held by said railroad company, and the further sum of two hundred dollars per acre for land taken by said railroad company for yard room. That on the 10th day of March, 1902, the said Ozark & Cherokee Central Railway Company served notice on the said James A. Ferguson that it would take said lands in accordance with the terms of the said contract, and made a demand for a deed to said lands under the terms and conditions of said option contract. That they have been ready and willing to pay the amount due upon presentation of a deed for said land. That the acreage taken under said contract amounts to four acres. That defendants are due plaintiff for it the sum of $ 800, and tender it in court.

The plaintiff answered, alleging that it was part of the consideration of said option contract that a depot should be constructed and maintained on said lands. That this was omitted from the terms of said contract through fraud or mistake, and that said railroad company has failed and refused to maintain said depot. The cause was transferred to the chancery court.

The road was constructed and in operation westward between July and October 1, 1900. A connection was made with the Kansas City, Pittsburg & Gulf Railroad in the spring of 1901. By February, 1903, the St. Louis & San Francisco Railroad Company had acquired all of the stock of the said Ozark & Cherokee Central Railway Company, and in June...