Prairie County v. Fink

• Decision Date: 01 October 1898
• Citation: Prairie County v. Fink, 65 Ark. 492, 47 S.W. 301 (Ark. 1898)
• Parties: PRAIRIE COUNTY v. FINK
• Court: Arkansas Supreme Court

47 S.W. 301

65 Ark. 492

PRAIRIE COUNTY v. FINK

Supreme Court of Arkansas

October 1, 1898

Appeal from Prairie Circuit Court, J. S. THOMAS, Judge.

STATEMENT BY THE COURT.

E. R Screeton and twenty-six other citizens of Prairie county filed a petition asking the count seat of Prairie county to open up a new road from the town of Hazen in said county to a point on the DeVall's Bluff and Hazen road, which petition in every way complied with the requirement of the statutes. Said petitioners filed the bond and proof of publication required, and the court appointed three viewers to view out said road. Said viewers were notified by the clerk of their appointment, took the oath as required by law and, after viewing said road, reported that the same should be established. Said new road, as established by said viewers, crossed the Little Rock & Memphis railroad, of which appellee, Rudolph Fink, is receiver. Rudolph Fink, as receiver, at his own request, was made a party to the record and filed a petition showing that it would cost him, as said receiver, the sum of $ 81.66 to build the crossing and approaches and put up a signboard at said crossing, and asked the court to allow him damages for that amount. The viewers did not find that appellee would be damaged by the opening of said road. The court approved the report of the viewers, and the said new road was opened and established according to the recommendations of said viewers. Appellee appealed to the circuit court from the order of the county court refusing to allow him the damage asked.

In the circuit court appellant demurred to the petition of appellee asking for said damages, and the court overruled the demurrer, and allowed the damages asked. To which ruling of the court the appellant, Prairie county, at the time excepted, and appealed to this court.

Judgment affirmed.

E. B Kinsworthy and T. E. Brown, for appellant.

Every railroad company takes its right of way subject to the right of the public to extend highways across it. 30 O. St. 604; 105 Ill. 388; 140 Ill. 315-318; 24 N.Y. 345. Nor can courts inquire into the expediency of the taking. Cooley, Const. Lim. 537; 71 Ill. 333; 2 Mich. 432; 80 Ky. 149. Damages cannot be claimed by citizens or corporations for expense or inquiry resulting from obedience to a police regulation. 54 Ark. 608; 105 Ill. 388. The railway company is bound to construct and maintain the crossing. Sand. & H. Dig., § 6263; 79 Me. 386; 117 Ill. 203; 91 Ind. 121.

Rose, Hemingway & Rose, for appellee.

Where the highway is laid out after the railroad is constructed, the company is entitled to all damages and expenses incurred by them in building and maintaining a suitable crossing. 14 Gray, 154; 26 N.W. 159; S. C. 58 Mich. 541; 28 N.W. 532; S. C. 61 Mich. 507; 51 N.W. 934; S. C. 90 Mich. 385; 45 Kas. 716; 46 Kas. 104; 29 P. 1084; S. C. 48 Kas. 576; 102 Mo. 633; 66 Mich. 42; 51 N. J. Law, 428; Rorer, Railroads, 554. There is no obligation resting on the company to build the crossing when the public is seeking to make a road across the established tracks of the company. 45 Kas. 543; 79 Mo. 98.

OPINION

HUGHES, J., (after stating the facts.)

Does the statute make the railroad liable? Section 6263 of Sandels & Hill's Digest governs this case, and is as follows "Section 6263. Wherever any railroad corporation has constructed or shall hereafter construct a railroad across any public road or highway of this state, now established or hereafter to be established, such railroad corporation shall be required to so construct such railroad crossing,...