Russell v. St. Louis Southwestern Ry. Co.
| Decision Date | 20 June 1903 |
| Citation | 75 S.W. 725 |
| Parties | RUSSELL et al. v. ST. LOUIS SOUTHWESTERN RY. CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Columbia County; Chas. W. Smith, Judge.
Proceedings by the St. Louis Southwestern Railway Company for the condemnation of real estate, contested by the owners, J. C. and W. H. Russell. From a judgment granting insufficient relief, the owners appeal. Reversed.
Jones & Neill and Oscar D. Scott, for appellants. Sam H. West and Gaughan & Lifford, for appellee.
The St. Louis Southwestern Railway Company instituted proceedings in the Lafayette circuit court for the purpose of condemning certain lands of J. C. Russell and W. H. Russell for its use and benefit. It represented in its complaint that it was a railway corporation duly organized under the laws of this state; that its road crosses Red river, over which it maintains a valuable bridge; that the bank of Red river where it crosses the same is caving and washing away in such manner as to endanger the safety of the bridge if it be not speedily arrested; that J. C. and W. H. Russell own a certain parcel of land on the bank of the river above the bridge and the railroad right of way, consisting of 8.97 acres, which it was necessary for it to acquire to enable it to do certain work to protect and save the bridge; and asked that such parcel be condemned for its use, and that damages on account thereof be assessed, and that in the meantime it be allowed to proceed with such work upon depositing with the clerk of the court a sum of money designated by the judge.
The plaintiff was permitted to begin and prosecute the work upon depositing $1,000 with the clerk.
J. C. and W. H. Russell answered, and denied that plaintiff was a domestic corporation, but alleged that it was a foreign corporation organized and existing under and by virtue of the laws of the state of Missouri, and that it did not have the power, under the Constitution of Arkansas, to condemn or appropriate private property, and that in many ways they would be greatly damaged by such work.
At the time the jury was impaneled to assess the damages the work was completed. In the trial the following agreement was read as evidence:
"It is agreed between the parties hereto that the following stipulation of facts may be considered as evidence on the hearing of the above-entitled cause pending in the circuit court of Columbia county, to wit:
"That the plaintiff corporation did, within the time required by law, file with the Secretary of State for the state of Arkansas a certified copy of its articles of incorporation (it having been incorporated under the general law of the state of Missouri), with a map and profile of the line, and did pay the fees prescribed by law for railroad charters, in obedience to section 6326, Sand. & H. Dig.; and since the date of said filing plaintiff has continuously and still does operate its railroad on the same line mentioned in the said charter profile," etc. "That within twelve months past said plaintiff has as often as two times removed causes pending between citizens of the state of Arkansas as plaintiffs and itself as defendant in the circuit courts of said state to the proper Circuit Courts of the United States on the ground of diverse citizenship of the parties under the judiciary acts of Congress."
Evidence was also adduced tending to prove that the defendants were the owners of a large farm, of which the 8.97 acres were a part; that in the construction of the work a part of a levee built by the defendants for the protection of their farm was taken by the plaintiff, and also a steamboat landing; that the work has caused much of the farm to cave into the river, and will probably continue to do so; and that by reason of the foregoing facts the present market value of the defendants' farm has been considerably reduced.
At the request of the defendants the court instructed the jury in part as follows:
"(3) In determining the defendants' damages you may take into consideration, as tending to show the decreased market value, the reasonable cost of any new levee that the proof shows by a preponderance may be required to supply the place of that taken by the plaintiff; the market value of any steamboat landing upon the land taken, if the proof shows that any such was taken; the increased danger of an overflow from Red river upon the defendants' plantation by reason of the construction of the so-called `protection work,' if the preponderance of the testimony shows that there is such increased danger; and that the same has depreciated the market value."
And at the request of the plaintiff the court instructed the jury, in part, over the objections of the defendants, as follows:
"(5) If the jury believe from the evidence that no damage will accrue to the defendants hereafter by reason of the work done on Red river, if the same is properly maintained and extended, as necessity may require, to prevent further damage hereafter, then they will not award defendants any damage because they may believe from the evidence such damage will hereafter accrue to the defendants from the work as it now exists, but which may be prevented by proper construction, extension, or maintenance of said work by the railroad."
The jury returned a verdict in favor of the defendants for $500, and they appealed.
Appellants contend that the appellee has no right to condemn or appropriate property in this state, because it was originally formed under the laws of the state of Missouri. Are they correct?
Unless prohibited by its Constitution, one state may adopt a corporation of another state, and constitute it its own. Railroad Co. v. Harris, 12 Wall. 65, 20 L. Ed. 354; Ohio, etc., R. Co. v. Wheeler, 1 Black (U. S.) 286, 293, 297, 17 L. Ed. 130; Railroad Co. v. Vance, 96 U. S. 450, 457, 24 L. Ed. 752; Memphis, etc., R. Co. v. Alabama, 107 U. S. 581, 2 Sup. Ct. 432, 27 L. Ed. 518; Clark v. Barnard, 108 U. S. 436, 2 Sup. Ct. 878, 27 L. Ed. 780; Pennsylvania R. Co. v. St. Louis, etc., R. Co., 118 U. S. 290, 6 Sup. Ct. 1094, 30 L. Ed. 83; Graham v. Railroad Co., 118 U. S. 161, 6 Sup. Ct. 1009, 30 L. Ed. 196; Goodlett v. Louisville, etc., R. Co., 122 U. S. 391, 7 Sup. Ct. 1254, 30 L. Ed. 1230. In order to do so, Pennsylvania Railroad v. St. Louis, Alton & Terre Haute Railroad, 118 U. S. 290, 296, 6 Sup. Ct. 1094, 30 L. Ed. 83; Goodlett v. Louisville & Nashville Railroad, 122 U. S. 391, 405, 408, 7 Sup. Ct. 1254, 30 L. Ed. 1230; St. Louis & San Francisco Railway v. James, 161 U. S. 545, 561, 16 Sup. Ct. 621, 40 L. Ed. 802.
The Constitution of this state ordains that corporations may be formed under general laws. And section 2 of an act approved March 13, 1889 (Acts 1889, p. 43, c. 34), which is entitled "An act relating to the consolidation of railroad companies, and the purchasing, leasing and operating railroads, and to repeal sections 1, 2, 3, 4, and 5 of an act entitled `An act to prohibit foreign corporations from operating railroads in this state, approved March 22, 1887'" (Acts 1887, p. 110, c. 80), so far as is applicable to this case, is as follows: "Any railroad company existing under the laws of any other state or territory, may extend and construct its railroad into this state: * * * provided * * * that before any railroad corporation of any other state or territory shall be permitted to avail itself of the benefits of this act, or any part thereof, such corporation shall file with the Secretary of State of this state a certified copy of its articles of incorporation, if incorporated under a general law of such state or territory, or a certified copy of the statute laws of such state or territory incorporating such company, where the charter of such railroad corporation was granted by special statute of such state, and upon...
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