Payne v. Kansas & A.V.R. Co.

• Decision Date: 22 June 1891
• Citation: 46 F. 546
• Parties: PAYNE et al. v. KANSAS & A. VAL. R. CO.
• Court: U.S. District Court — Western District of Arkansas

46 F. 546

PAYNE et al. v. KANSAS & A. VAL. R. CO.

United States Circuit Court, W.D. Arkansas.

June 22, 1891

Syllabus by the Court

The court, in determining the question of granting a temporary restraining order or a perpetual injunction, is governed solely by the laws of congress, the rules of the supreme court regulating equity practice, and the general rules of procedure in equity cases applicable to the equity practice in the courts of the United States.

The court has jurisdiction of this case because it involves a federal question. The rights of the parties arise under a law of the United States, and involve the construction thereof.

After the passage of the act of congress of 1793, and prior to the act of June 1, 1872, a temporary injunction or restraining order could not be granted without notice to the adverse party. But by the seventh section of the act of congress of June 1, 1872, which is now section 718 of the Revised Statutes of the United States, if a bill is filed for an injunction, and a subpoena issued notifying a defendant to appear on a rule-day, and if in the mean time there is danger that irreparable injury may be committed, the court, in the exercise of a sound discretion, will issue a temporary restraining order without notice.

By section 723 of the Revised Statutes of the United States suits in equity will not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. This section of the statute is merely declaratory, and made no change in the pre-existing law. It serves merely to emphasize the rule already existing.

If the remedy at law is not as plain, adequate, and complete as one obtainable in equity in case of a continued trespass, the party may prevent the injury by injunction, rather than wait until it is done, and then look for his damages in a court of law.

To bar equitable relief the legal remedy must be equally effectual with the equitable remedy as to all the rights of a complainant. Where the remedy at law is not as practicable and as efficient to the ends of justice, and its prompt administration, the aid of equity may be invoked.

The courts will interfere by injunction to prevent wrongs of a repeated and continued character, but which occasion damages which are estimable only by conjecture, and not by an accurate standard; that this is what is meant by irreparable damages or mischief, when we use the expression in connection with an application for an injunction. If the damage is irreparable, it presents a state of case where the party, in the sense of section 723 of the Revised Statutes of the United States, does not have a plain, adequate, and complete remedy at law; for, if he has such remedy, the damage is not irreparable.

An attempt by a railroad company to build its road upon private property without payment of compensation may be prevented by injunction.

The lands taken by defendant in this case were taken in invitum and defendant only acquired an easement to the land, and only such a one as the act of congress authorized. If the use of the lands of plaintiffs for an approach for a wagonroad and foot bridge is a use not authorized by congress, and it injuriously affects the lands of plaintiffs, then it is a new and unauthorized use, which, because it injuriously affects their lands, becomes a supervening servitude, which amounts to a taking of their property, and for which taking they are entitled to compensation.

Private property, under the constitution of the United States, can be taken for public use only with just compensation.

A use beyond the purpose of a first condemnation of land by right of eminent domain cannot be included in the first use if not authorized by law to be so included, and such use creates a new servitude if it casts on the land already condemned an additional burden. If such second use affects the value of said land to an extent to which it was not affected by the original taking, then it subjects the land to a new servitude, and there is a taking of private property which has not been paid for.

When private property is taken for public use the owner is entitled to full compensation, which means the fair market value of the property at the time of the taking.

In estimating the value of the lands of plaintiffs, situated as they are shown to be, the fact that they possess peculiar advantages as a site for a ferry-landing may be allowed in the estimation of the market value of the land. Plaintiffs have a right to insist on this fact as an element that goes to make up the value.

If the additional use sought to be fastened on the land of plaintiffs by the construction of a wagon and footway bridge by defendant necessarily injures its value as a ferry-landing, then there is, for this reason, an additional servitude cast on the land, for which plaintiffs are entitled to additional pay.

In this case the land condemned under the act of congress of June 1 1886, could be condemned but for one purpose, and that was for use as a right of way for a railway and a railway bridge. The condemnation of private property for public use must be to subserve the use authorized, and the power of condemnation can only be exercised when expressly granted, or when it exists by necessary implication, and it must be exercised in the manner granted.

The Cherokee nation holds the fee to all the lands to which it has title. Individual citizens of the nation have a right of perpetual occupancy in lands improved and occupied by them under the laws of the Cherokee Nation. By this right of occupancy the individual Indian citizen can hold and occupy the lands forever, and fully enjoy all profits arising from them, and their right of occupancy may be transferred by a grant to another citizen of the nation, or it may be descend by inheritance. Practically they get all of the productions of the land, and are entitled to its increased or peculiar value as though they held it in fee.

The Cherokee citizen and occupant of land has such a durable and permanent interest in his land as to entitle him to pay for an additional servitude cast on the same.

The use of lands already condemned for use as a right of way for a railway and railway bridge, for approaches for a wagon and foot-passenger bridge, is not a use for railway purposes, and is not one authorized by such first condemnation, and, before the same can be used for approaches for a wagon and footway bridge, if such use in any way casts an additional burden on said land, it must be condemned again by right of eminent domain, and this can only be done when authorized by the legislative power. In this case no such authority exists, either expressly or by necessary implication.

Rogers & Read, for plaintiffs.

Dodge & Johnson, D. W. Jones, and C. B. Moore, (Clayton, Brizolara & Forrester, of counsel,) for defendant.

PARKER J.

The plaintiffs filed their bill in equity to obtain an injunction against the defendant. They allege that the defendant corporation, by virtue of an act of congress entitled 'An act to authorize the Kansas & Arkansas Valley Ry. Co.to construct and operate a railway through the Indian Territory, and for other purposes,' approved June 1, 1886, were invested and empowered with the right of locating, constructing, owning, equipping, operating, using, and maintaining a railway and telegraph and telephone line through the Indian Territory, beginning at a point on the eastern line of said territory, at or near the city of Ft. Smith, in the state of Arkansas; thence running, by the most feasible and practicable route, in a north-westerly direction, through the Indian Territory, between the Arkansas river and Cowley county, and the Caney river, in Chautauqua county, Kan., as said corporation may select; and also another branch line, which is not relevant to the issues involved in this case, 'with the right to construct, use, and maintain such tracks, turn-outs, and sidings as said company may deem it their interest to construct along and upon the right of way and depot grounds herein provided for. ' That by the second section of said act said corporation was 'authorized to take and use for all purposes of a railway, and for no other purpose,' a right of way 100 feet in width through said Indian Territory, for said main line and branch of said corporation, and--

'To take and use a strip of land 200 feet in width, with the length of three thousand feet, in addition to the right of way, for stations, for every 10 miles of road, with the right to use such additional grounds, where there are heavy cuts or fills, as may be necessary for the construction and maintenance of the road-bed, not exceeding 100 feet in width on each side of said right of way, or as much thereof as may be included in such cut or fill; provided, that no more than said addition of land shall be taken for any one station provided, further, that no part of the lands herein authorized to be taken shall be leased or sold by the company, and they shall not be used except in such manner and for such purpose only as shall be necessary for the construction and convenient operation of said railroad, telegraph, and telephone lines; and, when any portion thereof shall cease to be so used, such portion shall revert to the nation or tribe of Indians from which the same shall have been taken. ' -- That the third section of said act provided a method for the condemnation of said right of way, and provided that full compensation should be paid the occupants of the right of way by the railway company before its road should be constructed for 'all property to be taken or damage done by reason of the construction of such railway. ' That by virtue of the said act of c...