Pine Bluff & W. Ry. Co. v. Kelly

• Decision Date: 24 February 1906
• Parties: PINE BLUFF & W. RY. CO. v. KELLY et al.
• Court: Arkansas Supreme Court

93 S.W. 562

PINE BLUFF & W. RY. CO. v. KELLY et al.

Supreme Court of Arkansas.

February 24, 1906.

Appeal from Circuit Court, Grant County; Alexander M. Duffie, Judge.

Proceedings by the Pine Bluff & Western Railway Company to condemn the land of David Kelly and others. From a judgment for defendants, plaintiff appeals. Reversed.

Austin & Danaher, for appellant. E. H. Vance, Jr., for appellees.

BATTLE, J.

In May, 1902, the Pine Bluff & Western Railway Company instituted a proceeding in the Grant circuit court to condemn a portion of N. W. ¼ of section 18 township 5 S., range 11 W., in Grant county, in this state, for right of way for its railway.

In order to prevent any delay in the construction of its railway over the land the judge of the Grant circuit court, in the vacation of the court, designated the sum of $50 to be deposited in the Merchants' & Planters' Bank of Pine Bluff, Ark., by the railway company, subject to the order of the court, and for compensation for right of way when the amount thereof shall have been assessed, and authorized it to take possession of a right of way, 50 feet wide, through and across the land, when the deposit was made. The deposit was made as directed, and the railway company constructed its road over the land.

Dave Kelly and N. M. A. Kelley, the owners of the land, filed an answer, and alleged that the railway company, before the proceedings to condemn right of way were instituted, without their knowledge or consent, entered upon the land, and cut timber thereon to their damage; and that, since the proceedings were instituted, the railway company, through its agent and servants, set fire out on the land and burned six panels of their fence, and caused stock to get into their fields and destroy their crops.

Some time after filing their answer they were allowed to amend it as follows: "That the actual damages to the land is $100 caused by the building of its dump and damming up the creek and causing the land to overflow herein since the filing of this answer. It, through its agent and servants, has cut 45 other trees, to defendant's damage $22.50, cut and used in January, 1903, in repairing its bridges on its road established across our land and the extending its spur, which it now has abandoned."

The railway company filed a motion to strike the answer and amendment from the files of the court, and a demurrer to the same, which were overruled.

Afterwards the railway company moved to dismiss its petition for right of way over the land, saying that it had abandoned...