Reynolds v. Louisiana, A. & M. Ry. Co.

• Decision Date: 19 May 1894
• Citation: 26 S.W. 1039
• Parties: REYNOLDS v. LOUISIANA, A. & M. RY. CO.
• Court: Arkansas Supreme Court

Page 1039

26 S.W. 1039

REYNOLDS v. LOUISIANA, A. & M. RY. CO.

Supreme Court of Arkansas.

May 19, 1894.

Appeal from circuit court, Chicot county; Carroll D. Wood, Judge.

Action by D. H. Reynolds against the Louisiana, Arkansas & Missouri Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

D. H. Reynolds, in pro. per. John McClure, for appellee.

FLETCHER, Special Judge.

This was a proceeding by the railway company against D. H. Reynolds, in the Chicot circuit court, to condemn a right of way over his lands. After the railway company had, in compliance with an order of the circuit judge in vacation, deposited $2,000, subject to the order of the court, in a bank at Little Rock, to secure Reynolds for any damages which might accrue to him on account of the right of way, it filed a motion for leave to dismiss the proceeding, and to have the amount deposited in bank refunded to it. This motion was sustained by the court, against the objection of Reynolds, and he has appealed.

The motion alleged "that the plaintiff has not, at any time, entered upon any of the lands described in the petition, or damaged or injured the same; that the plaintiff corporation deems the proposed route impracticable, and too expensive for construction." Appellant does not deny any of the allegations contained in the motion, nor does he claim that the proceeding was not instituted by the company in good faith. His contention is that the "company has no right to dismiss this proceeding without first surrendering the deposit." The constitution provides that "no property, nor right of way shall be appropriated to the use of any corporation, until full compensation therefor, shall be first made to the owner in money; or first secured to him by a deposit of money, which compensation * * * shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as prescribed by law." Const. art. 12, § 9. The statute relating to proceedings to condemn provides that "where the determination of the question in controversy in such proceedings, is likely to retard the progress of work on, or the business of such railroad company, the court, or judge, in vacation, shall designate an amount of money to be deposited by such company, subject to the order of court, and for the purpose of making such compensation, when the amount thereof has been assessed as aforesaid." "Whenever such deposit shall have been made, in compliance with the order of the court, or judge, it shall be lawful for such company to enter upon such land, and proceed with their work through and over the lands in controversy, prior to the assessment and payment of damages, for the use and right to be determined as aforesaid." Mansf. Dig. §§ 5464, 5465. In Ex parte Reynolds, 52 Ark. 331, 12 S. W. 570, it was held that this statute is in harmony with the constitutional provision above quoted, and the order of the judge requiring the deposit in this case was sustained. The constitution and statute are unambiguous. The purpose for which the deposit is required is apparent. By making the deposit the railway company merely acquires the right to enter upon the land and proceed with its work pending an assessment of damages. Its right to the property is not complete until the damages have been paid. The deposit is not made for the owner of the land, but to the order of the court, to secure to him the payment of such damages as may be...