Ozark Coal Co. v. Pennsylvania Anthracite R. Co.

• Decision Date: 06 February 1911
• Citation: Ozark Coal Co. v. Pennsylvania Anthracite R. Co., 134 S.W. 634 (Ark. 1911)
• Parties: OZARK COAL CO. et al. v. PENNSYLVANIA ANTHRACITE R. CO.
• Court: Arkansas Supreme Court

134 S.W. 634

OZARK COAL CO. et al. v.PENNSYLVANIA ANTHRACITE R. CO.

Supreme Court of Arkansas.

February 6, 1911.

Appeal from Johnson Chancery Court; Jeremiah G. Wallace, Chancellor.

Condemnation proceedings by the Pennsylvania Anthracite Railroad Company against the Ozark Coal Company and others.From a judgment for plaintiff, defendants appeal.Affirmed.

Geo. O. Patterson, for appellants.Moore, Smith & Moore, for appellee.

McCULLOCH, C. J.

The General Assembly of 1905 passed an act entitled "An act to authorize coal and other mining corporations in the state of Arkansas to construct, own, and operate short connecting lines of railway or tramway, and granting to them the right of eminent domain in condemnation suits."Laws 1905, p. 407.

The act reads as follows:

"Section 1.That all persons, owning or controlling by lease or purchase, any copper, lead, zinc, iron, marble, coal or other mineral lands in this state shall have the same right to incorporate, own, construct, and operate such short lines of railway, or tramway, as may be necessary to the successful mining and marketing of said coal, marble, and minerals.

"Sec. 2.All incorporations herein provided for shall be governed by the laws governing railway incorporations in this state; and shall have the same right to acquire right of way over, under, or through any private or public lands, and shall have and exercise the same right of eminent domain in acquiring such right of way; and shall have the same authority to construct, own, lease, operate, or sell such lines of railway, or tramway, as may be necessary to the successful mining and marketing of such coal and other minerals, owned or controlled by said mining corporations, as is now by law granted to railroad corporations of this state.

"Sec. 3.That when so incorporated and constructed, such short lines of railway and tramway, shall be, and are hereby entitled to all the rights, powers and privileges of a common carrier.

"Sec. 4.All such short lines of railway, or tramway, shall have the same rights and privileges of connections, crossings, sidings, switches, and transfer, without prejudice or discrimination, as are extended by custom or granted by law to railroad corporations in this state.

"Sec. 5.That all such short lines of railway, or tramway, not exceeding six miles in length, shall not be required to maintain passenger equipment, but if, at their option, they carry passengers, they shall be subject to the laws governing passenger traffic on railroads in this state."

Pursuant to the authority of said act, and in accordance with the procedure prescribed by the general statutes of the state for incorporating railroad companies, appellee was duly incorporated as a railroad company for the purpose of constructing and operating a short line of railroad from the coal mine of the Pennsylvania Anthracite Coal Company to the line of the St. Louis, Iron Mountain & Southern Railway Company.The stockholders in appellee company are the same as those of the above-named mining company.Appellee then leased to the St. Louis, Iron Mountain & Southern Railway Company for a term of 30 years its said line of railroad to be constructed and said lessee agreed in the contract to operate and keep in public use the said railroad, with such locomotives, cars, rolling stock, etc., as it shall deem to be necessary, reasonable, or proper for the accommodation of the business of the railroad so as to comply with the laws of the state of Arkansas.The contract requires appellee, as lessor, to maintain the railroad in good condition and repair, and gives the lessee the right to control the operation of the road, to regulate the rate of tolls to be charged for transportation of freight, and to charge and collect the same.The contract contains other provisions unnecessary to mention.Appellee filed in the circuit court of Johnson county its petition for the condemnation of a right of way across lands owned by appellants.Appellants answered, denying the right of appellee to condemn upon the ground that the said road was purely a private enterprise; that it was not to be built for the use of the public; that the incorporators of the railroad company were the owners of the coal company; that their only object and purpose was to build a spur or switch track to their mines; that they were seeking to take and appropriate the private property of the appellants for a purely private purpose; and, further, that the act of the Legislature approved April 13, 1905, granting the right of eminent domain to coal companies, is unconstitutional, and praying that the cause be transferred to the chancery court.The circuit court made an order transferring to the chancery court, and in the order transferring to the chancery court made an order temporarily restraining appellee from building upon the lands of appellants until such time as the appellants could apply to the chancery court for an order restraining them from entering into or upon the lands of appellants until the matters could be tried finally.Subsequently appellants petitioned the chancery court for an injunction, which was refused, an order made permitting the appellee, upon the payment of the sum of $150, to enter into and upon the lands of appellants and proceed with the construction of the railroad....