St. Louis, I. M. & S. Ry. Co. v. Petty

• Decision Date: 11 March 1893
• Citation: 21 S.W. 884
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. PETTY.<SMALL><SUP>1</SUP></SMALL>
• Court: Arkansas Supreme Court

21 S.W. 884

ST. LOUIS, I. M. & S. RY. CO. v. PETTY.¹

Supreme Court of Arkansas.

March 11, 1893.

Appeal from circuit court, Sebastian county; R. T. Powell, Special Judge.

Action by E. B. Petty against the St. Louis, Iron Mountain & Southern Railway Company to enjoin proceedings instituted by defendant to condemn a right of way for side tracks. From a judgment for plaintiff, defendant appeals. Reversed.

Dodge & Johnson, for appellant. Winchester & Bryant, for appellee.

COCKRILL, C. J.

A railway company which undertakes to exercise the power to condemn property for its use must be able to show a legislative warrant for the power, and to establish that the proposed use of the property sought to be condemned is for a purpose within the legitimate scope of its organization. In re Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375, 15 N. E. Rep. 429; Railroad Co. v. Wiltse, 116 Ill. 449, 6 N. E. Rep. 49; Tracy v. Railway Co., 80 Ky. 259. Has the railway company in this case brought itself within either branch of this rule? These are questions presented by this appeal.

The petition filed by the railway to condemn the land in question sets forth that it is the successor to the Cairo & Fulton Railroad, — a line located north and south through the state; that the charter of that company authorizes the building of branches from its main line; and "that a branch of its road is surveyed and located over and upon" the land in question, which is situate in Sebastian county. The complaint in this case, which is filed by the landowner to enjoin the prosecution of the condemnation proceeding, and the proof taken in the cause, show that the company is operating a line of railway between two points in Sebastian county. Nothing more is shown in relation to the building, survey, or location of the road. We know judicially that Sebastian county is in the extreme western part of the state, and remote from the line of the old Cairo & Fulton Railroad. That railway had the legislative warrant to build branches, but a branch is an offshoot of the trunk, and cannot exist independently of it. A disconnected road is an independent line, and not a branch. The charter of the Cairo & Fulton Railroad conferred no authority upon that corporation to build independent lines, or branches from other lines. It had no legislative warrant, therefore, to exercise the power of eminent domain for that purpose. Without halting to consider whether the appellant can exercise the privilege of the Cairo & Fulton Railroad to build branches without complying with the general law for the construction of railways, the question whether we are at liberty to treat the road in Sebastian county as a branch of the St. Louis, Iron Mountain & Southern Railway has given me no little concern. There is no indication in the record that it has, or is intended to have, any connection with the main line. There is not even an allegation to that effect. Conceding that the Cairo & Fulton Railroad could have begun the construction of a branch at a point far removed from the main line, the power to take property in invitum for the purpose could not have been exercised except upon a clear showing of a bona fide intent to push the enterprise through presently to the trunk connection, which alone authorized its existence. But we leave the question open because the appellee has not challenged the company's authority on that ground, either here or in the lower court. It may be that the facts which were known to the parties justified the conclusion that the legislative warrant existed, and that they refrained from entering upon the inquiry in the trial court for that reason. For the purposes of this case, therefore, we take it that the railway has legislative authority for the exercise of the power of eminent domain on the line designated in Sebastian county.

The vexed question for determination is, is the company seeking to condemn the land for railroad purposes, — that is, for public use? The appellee argues that the proof shows that the railway's proceeding to condemn is prosecuted, not for its own use, but for the use and benefit of the Western Coal & Mining Company, — a corporation which owns and operates a coal mine near the appellant's line of railway. The managers of the railway were probably instigated by the coal company to institute the condemnation proceeding, and they doubtless intended that the coal company should derive a benefit therefrom. But those facts alone do not furnish a legal reason sufficient to warrant judicial interference with the power delegated to the corporation by the legislature. If the land is needed for legitimate railroad purposes, the motive which influenced the railway managers in undertaking the work will not take from it its public character. A proposed public user will not be enjoined by the courts upon the ground that it will further private interests. De Camp v. Railroad Co., 47 N. J. Law, 44; National Docks Ry. Co. v. Central R. Co., 32 N. J. Eq. 755; Railway Co. v. Dix, 109 Ill. 237; Dunham v. Hyde Park, 75 Ill. 371; Lewis, Em. Dom. § 646. A railway cannot exercise the right of eminent domain to establish a private shipping station for an individual shipper. If the station is for the exclusive use of a single individual, or a collection of individuals less than the public, that stamps it as a private use, and private property cannot be taken for private use. The fact that the railway's business would be increased by the additional private facilities is not enough to make the use public. Railway Co. v. Davis, 43 N. Y. 137. To be public, the user must concern the public. If it is an aid in facilitating the business for which the public agency is authorized to exercise the power to condemn, or if the public may enjoy the use of it, not by permission, but of right, its character is public. When once the character of the use is found to be public, the court's inquiry ends, and the legislative policy is left supreme, although it appears that private ends will be advanced by the public user. It is common for the interest of some individuals to be advanced, while that of others is prejudiced, by the location of railway stations and switches, when there is no motive on the part of the railway officials to discriminate between them. The same effect is seen in the original location of every line of railway. But the courts do not assume to interfere with the right of the company to locate its line, stations, or switches. In this case the railway located its side tracks contiguous to the mine of the coal company, rather than to that of the appellee, who is a rival miner. The evidence is abundant that side tracks were necessary to facilitate and hasten the business offered...