Red v. Little Rock Ry. & Electric Co.

• Court: Arkansas Supreme Court
• Writing for the Court: Smith
• Citation: Red v. Little Rock Ry. & Electric Co., 180 S.W. 220, 121 Ark. 71 (Ark. 1915)
• Decision Date: 15 November 1915
• Docket Number: (No. 246.)
• Parties: RED v. LITTLE ROCK RY. & ELECTRIC CO. et al.

180 S.W. 220

RED v. LITTLE ROCK RY. & ELECTRIC CO. et al.

(No. 246.)

Supreme Court of Arkansas.

November 15, 1915.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Action by C. A. Red against the Little Rock Railway & Electric Company and another. From an order sustaining demurrers to the complaint, the plaintiff appeals. Affirmed.

John D. Shackleford, of Little Rock, for appellant. Rose, Hemingway, Cantrell, Loughborough & Miles and Jas. W. Mehaffy, all of Little Rock, for appellees.

SMITH, J.

This is a suit brought by appellant against appellees for damages alleged to have been sustained, as a result of the change of grade in the street, in front of property owned by him. Demurrers were filed by each of the appellees on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the demurrers were sustained by the court below.

The complaint alleged ownership of a lot situated on the southwest corner of the crossing of Sixteenth and May streets, in the city of Little Rock; that the defendant street car company procured to be passed by the city council an ordinance, No. 1909, a copy of which was made an exhibit to the complaint, and that by said ordinance said company was granted a right of way over May street, in said city; that on the 27th of January, 1913, the said railway company procured the city council to pass an ordinance, No. 1914, by which the grades on said May street were fixed by said council for the use and benefit of said railway company, and a copy of this ordinance was also made an exhibit to the complaint. It was further alleged that the city council passed an ordinance, No. 1956, by which said May street south from Fourteenth street, and in front of the plaintiff's property, was created into improvement district No. 225, and a copy of this ordinance was also made an exhibit to the complaint. It was alleged that the enactment of all of these ordinances was procured by the street car company, as a result of which the street car company proposed an extension of its lines on said May street. It was also alleged that an excavation had been made in front of plaintiff's property on Sixteenth and May streets by the improvement district pursuant to said Ordinance No. 1956, and that the grades used by said district were those furnished by the city council, as prescribed by said Ordinance No. 1914, and that by reason of said excavation all means of egress and ingress to said premises were destroyed, that the property had a frontage on Sixteenth street of 50 feet and on May street of 150 feet, and that there were two dwelling houses and one store house on said lot, all of which were built facing on May street, and "that said buildings were all erected prior to the passage of said Ordinance No. 1909, or any other ordinance, by which said May street was to be built to a grade fixed by the defendant city of Little Rock for the use and benefit of said defendant railway and electric company, and that on account of the arrangement of said buildings, plaintiff had no means of egress or ingress from said Sixteenth street."

Plaintiff alleged his attempt to arbitrate his damages under the provisions of section 5495 of Kirby's Digest, and the failure of the city to respond by the appointment of an appraiser. Damages in the sum of $2,500 were prayed.

The Ordinance No. 1909, granting to the street car company the right of way over May street, provided that the street car company should not be required to commence the building of its line until all necessary grading, cutting, and filling had been done, and it was provided that the provision of the ordinance granting the franchise should be null and void unless "the cost of bringing the roadbed for the street car tracks to the proper grade shall be borne and taken care of by some individual or corporation, other than the city of Little Rock, or the Little Rock Railway & Electric Company." And it was further agreed provided that "said roadbed shall be brought to proper grade within one year from the passage of this ordinance, otherwise this grant or franchise shall be null and void."

It is urged that as a result of these provisions the street car company did not obligate itself to extend its line until the property owners had finished cutting, filling, and grading the streets, and that this work should be an accomplished fact within the time fixed, before the street car company should be required to make the extension of its line, and do the amount of paving required by its general franchise from the city of Little Rock. It is further pointed...