Shreveport Traction Co. v. Kansas City, S. & G. Ry. Co
| Decision Date | 18 March 1907 |
| Docket Number | 16,311 |
| Citation | 119 La. 759,44 So. 457 |
| Parties | SHREVEPORT TRACTION CO. v. KANSAS CITY, S. & G. RY. CO |
| Court | Louisiana Supreme Court |
On Rehearing, June 10, 1907. Rehearing Considered.
Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.
Suit by the Shreveport Traction Company to expropriate from the Kansas City, Shreveport & Gulf Railway Company a crossing over the latter's right of way. From a judgment declaring the right of plaintiff to cross and fixing the amount to be paid defendant, defendant appeals. Affirmed.
Alexander & Wilkinson, for appellant.
Wise Randolph & Rendall and Sutherlin & Barret, for appellee.
Statement of the Case.
The plaintiff alleges: That it is a railroad corporation, and was organized, among other things, for the purpose of constructing, maintaining, and operating a line of railway for the carriage and transportation of passengers and property for hire from the city of Shreveport into and through the parish of Caddo, La., along such routes as may be determined by its board of directors, and that in pursuance of a resolution of its board of directors it is now engaged in the work of constructing a line of railway from the limits of the city of Shreveport to a point in the Texas or Greenwood road, in said parish, and beyond, along the route shown by map or plat attached hereto and made part hereof, said route having been determined upon and selected by its said board.
That it has secured the necessary ground for right of way purposes along the entire route as proposed, but that it cannot agree with the Kansas City, Shreveport & Gulf Railway Company for the acquisition or purchase of the right to cross with its track the right of way and tracks of the said Kansas City Shreveport & Gulf Railway Company on certain land in said parish, over, through, and across which petitioner's proposed and contemplated railroad is planned to be built and constructed, and that the right to cross said right of way and tracks of defendant company is necessary for petitioner's use for its said railway purposes, and that it desires and has the right to expropriate and cross over same. That amicable demand was urged in vain, and that petitioner attaches hereto and makes part hereof a map or plat showing the said strip and the said tracks over which it is necessary for petitioner's said line to be built, said strip being thirty (30) feet in width and one hundred (100) feet in length across the property of said defendant, and that there are no improvements on said strip except the tracks as shown by said map or plat.
Petitioner represents that the said Kansas City, Shreveport & Gulf Railway Company is a corporation organized under the laws of the state of Louisiana and domiciled in the city of Shreveport, in said parish, and that its president is absent from the parish of Caddo and jurisdiction of this honorable court, and that Peter Youree, Esq., its vice president, is a resident of said parish and state and present therein.
Petitioner represents that, as shown by the records of said parish, the property over which the right to cross is herein sought to be expropriated is, with other property of the said defendant company, incumbered with mortgage or deed of trust securing a mortgage in favor of the Missouri, Kansas & Texas Trust Company, a corporation organized under the laws of the state of Missouri and domiciled in the city of Kansas City, as shown by mortgage or deed of trust recorded in Mortgage Book 1, page 274, of the recorder's office of Caddo parish, La.; that the said Missouri, Kansas & Texas Trust Company is a nonresident and has no officers in the state upon whom service can be made.
Plaintiff prays that after due proceedings it have judgment adjudicating to it the right to cross said right of way and tracks of the defendant company upon payment by it into court according to law of the value and damage found by said jury according to law, and that said right to cross pass to petitioner free from said incumbrance and mortgage; further, for all orders and decrees necessary, and for costs and general relief.
Defendant excepted that the plaintiff was not incorporated as alleged, and was not a corporation under the laws of the state of Louisiana, and defendant denies the corporate capacity of said plaintiff and requires strict proof thereof.
Further excepting, defendant says and excepts that said plaintiff, even if incorporated, is not authorized under the laws of the state of Louisiana to expropriate property for its said right of way; the said plaintiff being a street railway company, and not a railroad corporation authorized to exercise the power of eminent domain under the law; and, further, if said plaintiff is incorporated, one of its purposes is of a private nature, and debars it from exercising the power of eminent domain.
Further excepting, defendant says that even if said plaintiff is incorporated, and even if it is authorized by law to expropriate property for right of way, which is specially denied, that even then it has no franchise power or corporate right to build or construct its said line or road outside of the corporate limits of the city of Shreveport; the point sought to be expropriated being outside of the limits of said city.
In view of the premises it prays that these exceptions be sustained, and it be relieved from answering in this case, and for all orders and decrees, for costs, and general relief.
These exceptions were overruled by the court.
The defendant answered. Reserving all exceptions theretofore filed, it denied that the plaintiff has any right under the laws of the state of Louisiana to expropriate the right of way in question, the said plaintiff not being a railroad as provided by law, and the said plaintiff has no right or charter power to build its said line outside of the city of Shreveport, where it is operating a street railway exclusively; that the said plaintiff company is not duly incorporated under the laws of the state, and defendant denies the corporate capacity of the said plaintiff.
Further answering it says: That the crossing proposed to be expropriated is necessary to its efficient operation, and if the crossing in question is permitted that it will practically destroy and ruin the use for which it was acquired by defendant. That it is engaged in preparing to commence work thereon in the enlargement of its yards and shops in the city of Shreveport, and, if a crossing at grade be permitted, that it will make it so dangerous as to amount to a denial of the right to run its cars over said track, owing to the large number of cars, or trains and cars, that will be run over said track daily. That the proposed crossing is at an extremely dangerous place, and a crossing at grade, and should be denied. That defendant has no objection to an overhead crossing by said plaintiff, and has requested it to so cross the said right of way; but the said plaintiff has refused to accept such crossing.
That defendant has further offered to let the said plaintiff cross at grade free of cost, if it would agree to remove such crossing after 6 months on 30 days' notice, it being the purpose of your defendant to build and equip the said grounds at this point as a part of its yards, and which will be prevented if a crossing at grade is permitted by said plaintiff. That a crossing at grade will greatly damage defendant in the sum of more than $ 10,000, ruining as it will the availability of the said grounds for an extension of its yard and shops, and the ground sought to be taken is well worth $ 100, making a total damage to defendant in the sum of $ 10,100 and more, for which it should have judgment against said plaintiff, in the event of the expropriation of said crossing and the said lands.
That defendant further shows that, while it has now only 2 tracks at the proposed point of crossing, it had planned long prior thereto, and had set aside the funds for the purpose of running a number of other tracks, not less than 12, over the place to be expropriated, which said additional tracks are necessary to it in the extension of its shops and yards, and which work it has planned to do and will commence to do within a short time; and the crossing sought by plaintiff is absolutely needful to it, and if such crossing is allowed defendant will be prevented from using its right of way for the purposes planned and contemplated, and it will ruin said point for the construction of said additional tracks, and, as it cannot construct them at any other point, will force it to abandon the said work, which is imperative, or force it to construct an overhead bridge for said plaintiff company, and the said property, being in use and needful to its use, cannot be taken by said plaintiff.
Wherefore it prays that plaintiff's demands be rejected at its costs, but, in the event of the expropriation of said land, then it prays for judgment against said plaintiff in the sum of $ 10,100, with interest, and for all orders and decrees, for cost, and general relief.
Defendant subsequently, adopting all the allegations of the original answer and without abandoning its exceptions, offered to file an amended answer in which it alleged in the alternative that, if the crossing in question be permitted to the said plaintiff, it be required to install thereat an interlocking device, and that this matter be therefore referred to the railroad commission of the state, in order to determine the kind of crossing that shall be installed thereat, in accordance with section 3 of its rules and regulations governing the installation and maintenance of interlocking devices at grade crossings, found at page 335 of the Railroad...
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