Sebastian Bridge Dist. v. Missouri Pac. R. Co.

• Decision Date: 09 August 1923
• Docket Number: 6051.
• Citation: 292 F. 345
• Parties: SEBASTIAN BRIDGE DIST. v. MISSOURI PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

292 F. 345

SEBASTIAN BRIDGE DIST. v. MISSOURI PAC. R. CO.

No. 6051.

United States Court of Appeals, Eighth Circuit.

August 9, 1923

James B. McDonough, of Ft. Smith, Ark., for plaintiff in error.

Thomas B. Pryor, of Ft. Smith, Ark. (Edward J. White, of St. Louis Mo., on the brief), for defendant in error.

Before STONE, Circuit Judge, and TRIEBER and JOHNSON, District Judges.

STONE Circuit Judge.

By a special act of the Arkansas Legislature (Acts 1913, p. 380) the Sebastian bridge district was organized for the purpose of building a free vehicular bridge across the Arkansas river from a designated point in Garrison avenue, Ft. Smith, Ark. The act defined the boundaries of the district; authorized payment for the improvement by benefit assessments; limited assessments to 10 per centum of the assessed valuation of the real estate benefited; prescribed actual benefits as the basis of apportionment; and provided that railways should be assessed the same as other property 'except that said assessment should be made per mile. ' Under the act, this assessment was made by a board of assessors. From the determination of the board an appeal was allowed to a board of commissioners and from the commissioners to the county court. The assessors determined a horizontal benefit of 10 per centum on the actual value (as found by them) to all real estate in the district. This railway, having been assessed appealed to the commissioners and, in turn, to the county court, at which latter point it removed the matter to the federal court, where a hearing was had before a jury. The verdict was that this property was benefited, but not to the extent found by the assessors; that this property was not discriminated against by the assessors and that the assessors had not considered damage or injury (including loss of tolls from a nearby toll bridge owned and operated by this railway) from the improvement as affecting the net benefits to be derived therefrom. Upon this verdict the court entered a judgment, which recited that:

' * * * It appearing from said verdicts that the property of the defendant will not be benefited 10 per cent. of its value over and above the injury or damage to its property, and it further appearing from answer to special interrogatory that the board of assessors did not take into consideration in assessing the benefits any damage to the property (or) loss of tolls resulting from the construction of the bridge,'

-- and canceled the assessment of benefits against this railway. From that judgment, the district has sued out this writ of error.

While this case was argued and submitted with that of St. Louis-san Francisco Railway Company v. Sebastian Bridge District, the issues presented here in the two cases and which we find necessary to determine are different. In the other case, the jury found that the assessors considered 'any damage to said railroad property resulting from the construction of the bridge' and concluded that the actual benefit 'over any injury or damage to said property' equaled the amount assessed and, also, that there was no discrimination against that property. In this case, the jury found that the assessors had not considered 'any damage of said property (or) loss of tolls resulting from the construction of the bridge' and that the property, although benefited, was not benefited to the amount assessed.

The points argued here as error are (1) permitting the jury to consider the matter of alleged damages as an offset in determining benefits; (2) permitting the jury to consider loss of tolls on defendant in error's toll bridge as such an offset; (3) refusal to charge that the act of the Legislature creating the boundaries of the district determined that all real property therein would be benefited; (4) refusal to charge that the jury should consider, as benefits, the saving to the railway in not being compelled to build a viaduct over its tracks where they were crossed by the bridge; (5) refusal to charge that increased business of the railway in immediate connection with the building of the bridge might be considered as benefits; (6) improper argument to the jury by counsel for the railway; (7) refusal to direct verdict on the pleadings and verdict of the jury.

In order to concentrate consideration upon the really important propositions involved here, it is helpful to employ a process of elimination by disposing of those which cannot be controlling upon this appeal. This elimination will apply to the third, fourth, fifth, and sixth propositions above stated.

The third proposition is based on the refusal of two requests to charge as follows:

'The court instructs the jury that the act of the Legislature creating the Sebastian bridge district creates an improvement district and determines the question that all real property located in the district is benefited thereby, but leaves to the sound judgment of the assessors the amount of that benefit. This does not preclude the assessors from determining and deciding that no piece of property is benefited at all. The question of whether or not any particular piece of property is benefited, is left to the sound discretion of the assessors, subject to review as provided in the act.' 'Under the legislative act creating this district, the presumption is that every piece of real property located in this district is benefited to some extent.'

The sole benefit which could have ensued to plaintiff in error through having these requests given would have been to gain the weight of a presumption that some benefit to this property existed. These requests recognized the power of the assessors to find that, in fact, no benefit did exist. The plaintiff in error fully secured the practical and substantial effect of these requests when the court charged that:

'The presumption of law is that these assessments are reasonable, just and fair. The burden is upon the railroads to show that said assessments are unjust or arbitrary or otherwise defective.'

Also, the jury found that there was a benefit. Therefore, conceding (without deciding) that the requests were proper, yet the above convinces that no prejudice resulted from the refusal to give them.

The fourth proposition is not preserved in the record and cannot be considered.

The fifth proposition is that the court erred in the portion of the charge following:

'You are instructed that under the law revenue realized by the railroad companies for freight and material transported by said companies and used in the construction of the bridge, or for passenger fares received for transporting workmen to Ft. Smith to work on said bridge are not proper elements to take in consideration in determining whether or not said railroad company which has been assessed will in fact be benefited by said bridge, and the court charges you that you can (not) take the same into consideration in determining whether or not said property will be benefited by the construction of said bridge. The instruction that I have just read to you, gentlemen, is applicable to that testimony that was introduced with reference to the freight that these railroad companies had received or transported, that was used in the construction of the bridge, and in the paying of passenger fares for transportation of workmen who intended to work upon the bridge. The law contemplated the benefit to be derived from the completed structure, not the structure in the course of construction. Now that is simply applicable to that class of testimony so far as added business is concerned.'

For the reasons therein given, the charge as given correctly stated the law.

The sixth proposition relates to two statements made during argument by counsel for defendant in error. The first of these statements was:

'The Constitution guarantees to you your liberty, and the third thing it guarantees is property-- life, liberty and property. And the Constitution of the United States says, also the Constitution of Arkansas, that no citizen--and the railroads are citizens under the law, although they are not entitled to a vote in any election that is called for the purpose, but they are treated and considered as citizens-- that the property of no citizen shall be taken or damaged for private use without just compensation. You have got to pay them for their property when you take it, or damage it. Now, gentlemen, it is useless. You can't overcome it, argument can't overcome it. As I said before in considering the question of whether that property is benefited, you will take into consideration the effect on the physical property itself, and as far as the Missouri Pacific Railroad Company is concerned the loss of tolls. Then you will be doing something that the board of assessors refused to do; you will be doing something to equalize the scales, and reach a conclusion as to our benefit, that we have never yet had done. Perhaps you hear it argued to you that this is a matter that should not be considered. You have heard it in the pleadings, in the opening statement in this case, that the Missouri Pacific had no right to claim the tolls down there. I brought a man from St. Louis to testify to show you where that money went. It was collected as a part of the revenue of the Missouri Pacific. It went into the general operating fund of the Missouri Pacific and was a part of that fund, and yet, gentlemen, Mr. Moss told me when we went before him and the board-- John Ayers was a good man, the city of Ft. Smith never suffered a greater loss in any of its citizens than it did when John Ayers went to the beyond, a good man, but they had this idea that regardless of the question of benefits or damages, they were there for one purpose only. What was your purpose, Mr. Kuper? Listen,

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