Southern Kansas Ry. Co. v. Oklahoma City

• Decision Date: 18 July 1902
• Citation: Southern Kansas Ry. Co. v. Oklahoma City, 69 P. 1050, 1902 OK 63, 12 Okla. 82 (Okla. 1902)
• Parties: SOUTHERN KANSAS RY. CO. et al. v. OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

69 P. 1050

12 Okla. 82, 1902 OK 63

SOUTHERN KANSAS RY. CO. et al. v. OKLAHOMA CITY et al.

Supreme Court of Oklahoma

July 18, 1902

Syllabus by the Court.

1.Article 5 of the amendment to the constitution of the United Statutes provides: "Nor shall private property be taken for public use, without compensation.""Property," within the meaning of this constitutional provision, includes not only real estate held in fee, but also easements, personal property, and every valuable interest which can be enjoyed and recognized as property; and if it is proposed to be appropriated for the public use in such a manner as to deprive the owner of the beneficial enjoyments thereof, or where such appropriation would cause serious impairment or deprivation of such property, then such deprivation would be an appropriation to "public use," and the owner is entitled to just compensation.

2.Whenever it is proposed to appropriate private property for a public use, provision must be made for "just compensation" to the party proposed to be injured, and it must be made by "due process of law"; and if the statute of the territory makes provision for the appropriation of such property or the making of compensation therefor, the method of appropriation of such property provided for in the statutes must be pursued.

3.The right to occupy and use the lands occupied by the plaintiff company is derived from an act of congress of July 4, 1884 entitled, "An act to grant a right of way through the Indian Territory to the Southern Kansas Railway Company, and for other purposes," and provides: "That the Southern Kansas Railway Company, a corporation created under and by virtue of the laws of the state of Kansas, be, and the same is, hereby invested and empowered with the right of locating, constructing, owning, operating and maintaining a railway line through the Indian Territory, *** with the right to construct, use and maintain such tracks, turnouts and sidings as such company may deem it to their interests to construct along and upon the right of way and depot grounds hereby granted.Sec. 2.That a right of way one hundred feet in width through said Indian Territory is hereby granted for said main line and branch of the Southern Kansas Railway Company, and a strip of land two hundred feet in width, with a length of three thousand feet, in addition to the right of way, is granted for stations for every ten miles of road. ***" Pursuant to this, ground turnouts and sidings have been constructed upon the right of way outside of the depot and station grounds especially provided for, together with such switching posts and other mechanical facilities as are necessary for the operation of the main tracks, turn-outs and sidings.The plaintiff company is invested with the right and authorized to construct such turn-outs and sidings upon the right of way throughout the Indian Territory, as well as upon such grounds as have been specially granted for the purpose of stations and depot grounds.

4.These turn-outs and sidings, together with the switches and other mechanical appliances for their necessary operation constructed under and by virtue of the grant of authority in the act of congress, having required the expenditure of money, constitute property.

5.The plaintiff in error is bound by the conditions and limitations contained in its character, which it secured from congress.The power authorizing the proper authorities to lay out and extend roads and highways over and across the right of way of said railroad is conferred by section 9 of said act, and is a condition coupled with the grant of right of way, and, the company having accepted said grant subject to such conditions, it is the duty of such company, and it may be required by the proper authorities, to open, construct, and maintain, at its own expense, any road or highway crossings without condemnation proceedings, and without compensation or claim for damages, whenever the same may be done without destroying the use of the improvements made by the company for the purposes for which congress granted their right of way.The right of the public to cross the right of way roadbeds, tracks, sidings, or other surface improvements is not so inconsistent with the use granted to the railway company as to entitle the company to compensation or damages.Such inconveniences or burdens as are incident to the use of such crossings by the public, the company voluntarily assumes by the acceptance of the grant.

6.The term "highway" is a general name for all kinds of public ways, including county and township roads, and streets and alleys in cities, towns, and villages.

7.The trial court specially found that the opening of First street for travel would necessitate the shortening of the side tracks and turn-outs, and the rearrangement of all the side tracks converging into First street.This, then, will, to the extent that the company is required to shorten its side tracks and turn-outs and the rearrangement of the same, be not only a serious impairment, but an actual destruction, of such property rights.The use of the crossings for the public street will, therefore, to that extent, be inconsistent with the use to which the railway company has already appropriated its right of way within the terms of the grant, and to such an extent it would be an appropriation of private property for the public use without just compensation, and is forbidden by the fifth amendment to the federal constitution, and was not contemplated by the conditions imposed in the grant by congress, and is inconsistent therewith.

8.Upon the facts found by the court in this case, the city will not be authorized to open First street, until it has condemned, had appraised, and paid for such improvements of the railroad company, within said street, as it will be found must necessarily be removed in order to permit the public to use said highway or street crossing in common and jointly with the railroad company.

9.The measure of damages in such proceedings is the value of the expense of removing such switch stands or other structures above the surface of the tracks as must be removed, and the expense of shortening or lengthening such of the side tracks as will necessarily have to be changed, so as to place the turn-outs outside the limits of the traveled portion of such street when opened.

Error from district court, Oklahoma county; before Justice B. F. Burwell.

Action by the Southern Kansas Railway Company and the Atchison, Topeka & Santa Fé Railway Company against the city of Oklahoma City and others.Judgment for defendants, and plaintiffs bring error.Modified.

Under Act Cong. July 4, 1884, giving the Southern Kansas Railway Company a right of way through the Indian Territory, the company, having accepted such grant, is bound by the conditions imposed by section 9 of such act, and must maintain at its own expense any road or highway crossing without condemnation proceedings, and without compensation or claim for damages, whenever the same may be done without destroying the use of the improvements made by the company for the purpose for which Congress granted the right of way.

This proceeding was an injunction in the district court of Oklahoma county, to restrain the defendants from entering upon the right of way of plaintiffs at First street and California avenue in Oklahoma City, and opening the same to the public travel over and across their right of way, station grounds, tracks, switches, platforms, and improvements, and to prevent the defendants from tearing up the tracks, platforms, and improvements of the plaintiffs at those streets.The plaintiffs averred that the defendant city was threatening to enter upon and remove the structures and property of the plaintiffs from their right of way, and to extend the proposed streets across it, without having taken any proceedings to condemn or make any compensation to the plaintiffs therefor, and that the opening of the streets as proposed would greatly impede the transaction of the plaintiffs' business, and cause great and irreparable injury to plaintiffs' property.

The plaintiffs' railroad was constructed, and the right of way and station grounds acquired, under an act of congress of July 4, 1884(23 Stat. 73), before the opening of Oklahoma to settlement.Its right of way and station grounds were located upon the east side of the S.W. 1/4 of section 34, township 12 N., range 3 W. I. M.After the plaintiffs had built their line and occupied their station grounds at the points in question the territory was opened for settlement, and the townsite of the defendant city was surveyed, platted, and entered as a town site.In platting and surveying the town site, only that portion of the S.E. 1/4 of section 33 lying west of the west line of the right of way and station grounds of the plaintiff was platted.By an act of congress of August 8, 1894, the S.W. 1/4 of section 34, lying on the east side of the railway tracks and station grounds of the plaintiff, was donated, and was immediately thereafter platted, as an addition to the defendant city.On January 22, 1893, and December 1, 1893, ordinances were passed, by the city council of Oklahoma City, for the opening of First street and California avenue, respectively, and on May 23, 1898, the mayor and city council passed a resolution that First street and California avenue be opened over the plaintiffs' tracks and right of way.No proceedings were ever taken to ascertain the injury to the plaintiffs' property by reason of the opening of such streets, or to ascertain what compensation was due to the plaintiffs on account thereof.The Choctaw, Oklahoma & Gulf Railroad Company constructed its railroad over and across the track of the plaintiffs...