Railway Company v. Petty

• Decision Date: 11 March 1893
• Parties: RAILWAY COMPANY v. PETTY
• Court: Arkansas Supreme Court

21 S.W. 884

57 Ark. 359

RAILWAY COMPANY v. PETTY

Supreme Court of Arkansas

March 11, 1893

Appeal from Sebastian Circuit Court in Chancery, Greenwood District R. T. POWELL, Special Judge.

The St Louis, Iron Mountain & Southern Railway Company instituted proceedings to condemn land belonging to E. B. Petty, for the purpose of constructing an additional side track north of its main track near Jennie Lind station in Sebastian county, and after depositing with the clerk the amount designated by the circuit judge as the value of the land, took possession thereof and laid its track.

Subsequently Petty, who had a coal mine about 200 yards south of the land sought to be condemned, brought this suit to enjoin the railway company from taking his land, upon the ground that the condemnation proceeding was instituted for a private and not for a public use, namely, to furnish shipping facilities to the Western Coal & Mining Company, whose mine immediately adjoined the land sought to be condemned for use as a side track.

The court, upon the hearing, decreed in favor of plaintiff. Defendant has appealed.

Upon the question whether the condemnation proceeding was instituted for a public or private use, the evidence is sufficiently stated in the opinion.

Decree reversed and complaint dismissed.

Dodge & Johnson for appellant.

1. The right of eminent domain exists in the State in her sovereign capacity as an inherent right, and is only limited by the constitution. 28 Kas. 453; Wood, Ry. Law, sec. 638; Const. Ark. art. 2, sec. 23; art. 2, sec. 22; art. 12, sec. 9. She may delegate this power, and has done so to railroads. 30 N.Y. 174; 10 A. & E. R. Cas. 335; 75 Va. 78; 40 Am. Rep. 743; 17 W.Va. 812; Mansf. Dig. sec. 5458. The "right of way" includes all grounds necessary for side tracks, turnouts, depots, workshops, etc. Ib. 5468. The company complied with section 5464.

2. The petition to condemn need only show a prima facie right to take the property which cannot be assailed in a collateral proceeding. To establish a prima facie case, the petition is only required to prove the incorporation of the company, the use of its franchise, survey of the route, and the necessity of taking the land. 112 Ill. 601; 119 id. 287; 38 N.J.L. 17; 125 Ill. 600; 105 id. 110; 33 A. & E. R. Cases, 156. The testimony shows that the land is sought for a public purpose; the fact that some persons may be specially benefitted does not deprive the improvement of its public character. As to what is a public use, see Mills, Em. Dom. secs. 12, 14; Wood, Ry. Law, sec. 226; 34 F. 387; 23 Cal. 324; 47 N.J.L. 44; 18 Cal. 251; 31 id. 368; 19 P. 78; 99 U.S. 463; 42 Oh. St. 202; 16 Gray, 416.

3. As to the necessity for the taking, it is settled that the company must determine what lands are necessary for its use. It is a legislative question, not a judicial one, and the legislature has lodged the power in the railroads. The only limitation seems to be that it must be for a public purpose. See 6 A. & E. R. Cas. 504; 9 H. L. C. 246; 105 Ill. 513; 13 Neb. 361; 1 Wood, Ry. Law, 646, 647, 648, 660; 52 Ark. 330; 71 Ill. 334; 100 Ill. 112; 109 id. 244; 7 Ch. App. Cases, 364; Lewis, Em. Dom. sec. 279; 33 A. & E. R. Cases, 162 and notes; 43 Ark. 121; 31 id. 500.

4. Courts of equity will not enjoin condemnation proceedings, unless the company is clearly abusing the discretion and power granted by the legislature. 14 Wisc. 609; 80 Am. Dec. 793; 21 N.Y. 597; 96 N.Y. 358; 41 Ind. 371; 2 D. R. & S. 330; 3 Deg. & J. 286; 4 M. & C. 116; 13 Ch. Dec. 268; 12 Ch. Dec. 1; 3 Q. B. Div. 258. It is no objection that other lands in the vicinity might be obtained that would answer the purpose. 34 Vt. 284; 8 Phil. 345; 46 N.Y. 546; 1 Wood, Ry. Law, sec. 225; 17 A. & E. R. Cas. 160.

5. As to the right to condemn, see 17 A. & E. R. Cas. 160; 36 Pa.St. 332; 48 id. 359; 79 id. 257; 5 A. & E. R. Cas. 395; Acts 1853, p. 177; 10 A. & E. R. Cas. 15; Lewis, Em. Dom. sec. 646; 7 N.J.Eq. 75; 74 Ga. 350. The making of a public improvement cannot be enjoined on the ground that it is unnecessary or is being made to further private ends. 75 Ill. 731; 36 Me. 518.

Winchester & Bryant for appellee.

1. Appellee could not raise the questions that the land is sought to be condemned not for its own use but for a private coal company and that it is not needed by the railroad company, but is an effort gotten up in the interest and for the benefit of said private corporation; and hence his only remedy is in equity. 43 Ark. 121; 4 N.J.Eq. 47-57; Lewis, Em. Dom. sec. 632; 17 Ill. 128-130.

2. The right of eminent domain cannot be delegated except for public use, and the question what is "public use," in any given case, must be left to the courts. The use, the "necessity" for the taking, the bona fides of the act, are legitimate and proper matters for judicial investigation. Rorer on Railroads, p. 293-4; 98 Mo. 215; 34 Ala. 311; 41 Cal. 147; 51 id. 269; 6 Ga. 130; 25 Iowa 540; 37 Md. 537; 16 Gray, 417; 34 Minn. 227; 8 West. Rep. 248; 27 Mo. 373; 11 Nev. 394; 1 N.J.Eq. 694; 18 id. 54; 6 Cald. 150; 44 Vt. 648; 21 W.Va. 534; 116 Ill. 449. The burden is on the corporation to show the "public use" and the "necessity." 6 A. & E. Enc. Law, p. 541; 58 Iowa 537; 66 N.Y. 407, 571; 43 N.Y. 137; 52 Wis. 537; 108 Mass. 206; 48 F. 615.

3. The right of eminent domain cannot be exercised a second time. 31 N.J.L. 208; Mansf. Dig. sec. 5447, par. 4.

4. The testimony shows and substantiates the allegations of fraud and conspiracy contained in the complaint.

OPINION

COCKRILL, C. J.

A railway company which undertakes to exercise the power to condemn property for its use must be able to show a legislative warrant for the power, and to establish that the proposed use of the property sought to be condemned is for a purpose within the legitimate scope of its organization. In the matter of Niagara Falls & Whirlpool Ry. 108 N.Y. 375, 15 N.E. 429; Chicago etc. R. Co. v. Wiltse, 116 Ill. 449, 6 N.E. 49; Tracy v. Railway, 80 Ky. 259. Has the railway company in this case brought itself within either branch of this rule? These are questions presented by this appeal.

The petition filed by the railway to condemn the land in question sets forth that it is the successor to the Cairo & Fulton Railroad--a line located north and south through the State; that the charter of that company authorizes the building of branches from its main line, and "that a branch of its road is surveyed and located over and upon" the land in question, which is situate in Sebastian county. The complaint in this case, which is filed by the land owner to enjoin the prosecution of the condemnation proceeding, and the proof taken in the cause, show that the company is operating a line of railway between two points in Sebastian county. Nothing more is shown in relation to the building, survey or location of the road. We know judicially that Sebastian county is in the extreme western part of the State and remote from the line of the old Cairo & Fulton Railroad. That railway had the legislative warrant to build branches; but a branch is an offshoot of the trunk and cannot exist independently of it. A disconnected road is an independent line, and not a branch. The charter of the Cairo & Fulton Railroad conferred no authority upon that corporation to build independent lines or branches from other lines. It had no legislative warrant, therefore, to exercise the power of eminent domain for that purpose.

Without halting to consider whether the appellant can exercise the privilege of the Cairo & Fulton Railroad to build branches without complying with the general law for the construction of railways, the question whether the court is at liberty to treat the road in Sebastian county as a branch of the St. Louis, Iron Mountain & Southern Railway has given me no little concern. There is no indication in the record that it has or is intended to have any connection with the main line. There is not even an allegation to that effect. Conceding that the Cairo & Fulton Railroad could have begun the construction of a branch at a point far removed from the main line, the power to take property in invitum for the purpose could not have been exercised except upon a clear showing of a bona fide intent to push the enterprise through presently to the trunk connection which alone authorized its existence. But we leave the question open because the appellee has not challenged the company's authority on that ground either here or in the lower court. It may be that the facts which were known to the parties justified the conclusion that the legislative warrant existed, and that they refrained from entering upon the enquiry in the trial court for that reason. For the purposes of this case, therefore, we take it that the railway has legislative authority for the exercise of the power of eminent domain on the line designated in Sebastian county.

The vexed question for determination is, is the company seeking to condemn the land for railroad purposes--that is, for public use?

The appellee argues that the proof shows that the railway's proceeding to condemn is prosecuted, not for its own use, but for the use and benefit of the Western Coal & Mining Company a corporation which owns and operates a coal mine near the appellant's line of railway. The managers of the railway were probably instigated by the coal company to institute the condemnation proceeding, and they doubtless intended that the coal company should derive a benefit therefrom. But those facts alone do not furnish a legal reason sufficient to warrant judicial interference with the power delegated to the corporation by the legislature. If the land is needed for legitimate railroad purposes, the motive which influenced the railway managers...