St. Louis, Iron Mountain & Southern Railway Co. v. Petty

• Decision Date: 17 October 1896
• Citation: 37 S.W. 300,63 Ark. 94
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PETTY
• Court: Arkansas Supreme Court

37 S.W. 300

63 Ark. 94

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. PETTY

Supreme Court of Arkansas

October 17, 1896

Appeal from Sebastian Circuit Court, Greenwood District, F. A YOUMANS, Special Judge.

STATEMENT BY THE COURT.

This is an action by the St. Louis, Iron Mountain & Southern Railway Company against Enoch V. Petty, to condemn land for the purpose of constructing a side track.

The company filed its petition for condemnation, alleging amongst other things, that, by virtue of a consolidation with the Cairo and Fulton Railroad Company, it became vested with all the rights and powers given to said Cairo and Fulton Railroad Company in its charter; that it became vested with the right to build branches from its main line to any point in the state, and with the power to exercise the right of eminent domain in building such branches. It alleges that the side track for which it asks to condemn land is located on a line which is known as the Fort Smith branch of the St Louis, Iron Mountain & Southern Railway, and when completed will extend from Gurdon on its main line to the city of Fort Smith; that the board of directors of said company had duly authorized the construction of said Fort Smith branch and the line thereof surveyed and located; that the construction of the line had, for the purpose of convenience, been commenced at Fort Smith, and that the intention of the company was to speedily push the line to completion; that, after a portion of the line had been completed, the construction of the same was temporally suspended on account of financial difficulties, but that the intention of the company was in good faith to push said line to completion so soon as it was possible to do so.

The appellee, Petty, answered, denying the consolidation as alleged, and denying the right of the company to condemn his land in this proceeding. On the trial the appellant read in evidence a resolution of its board of directors, passed in 1887, which, among other matters, resolved that the company "proceed immediately to build, maintain, own, and operate, with all the necessary equipment, franchises and properties appertaining thereto, a railroad beginning at or near Beebe in White county, running thence through the counties of Lonoke, Faulkner, Perry, Yell, Logan, Scott and Sebastian to Fort Smith, * * * * also a branch from the main line of the Iron Mountain road at some point to be hereafter determined, in Clark or Nevada counties, Arkansas, running thence north through the counties of Pike, Montgomery, Hot Springs, Garland, Polk, Scott, and Sebastian to a connection with the branch above described at or near the boundary line between the counties of Sebastian and Scott. * * * Resolved further, that the president is authorized to put under construction and make the necessary contracts for such portions of the foregoing roads as his judgment may approve."

Another resolution by said board in reference to the same matter, passed in 1893, was also read.

The special judge presiding at the trial was of the opinion that the appellant company had power to construct branch lines, and to condemn land for the purposes of such construction, but he held that at the commencement of this action there was no resolution of the board of directors of the appellant company authorizing the construction of a branch line from Gurdon to Fort Smith, and no authority to bring this suit. He therefore directed a verdict for the defendant. From the judgment rendered in favor of defendant, the company appealed.

Judgment reversed and cause remanded.

Dodge & Johnson, for appellant.

1. The court erred in excluding all the testimony introduced before the jury. Defendant, taking his cue from the dictum in 57 Ark. 359, 363, based his defense on the sole ground that appellant had no legal existence, and therefore no warrant to construct a branch. But the courts of this state take judicial notice of the act of January 12, 1853, incorporating the Cairo & Fulton railroad. 30 Ark. 701. Also of the act consolidating the C. & F. Railroad and the St. L., I. M. & S Railway Company under sec. 10 of said act. The validity of this consolidation has often been recognized by this court. 30 Ark. 693; ib. 674; 41 id. 516; 113 U.S. 474; 112 id. 129; 98 id, 563; Acts 1868, sec. 43 p. 311; Acts 1887, p. 25; 6 Dec. U. S. Land Off. 356; 7 id. 204.

2. By virtue of this consolidation, appellant acquired all the property, rights, privileges, etc., belonging to each of the constituent companies. 30 Ark. 680; 6 Gill. 288; 15 Wall. 460; 41 Ark. 509; 113 U.S. 465. Appellant succeeded to the right to build branches "to any point or points in the state." The resolution, therefore, of the board of directors authorizing the construction of this branch should have been admitted.

3. The suit was not prematurely brought. All errors or omissions in the original resolution were overcome by the modification made Sept. 12, 1889, which was filed in the secretary of state's office four years before this suit was brought.

4. It was error to direct a verdict for defendant.

Winchester & Martin, for appellee.

1. The court below held that the consolidation of the two roads was properly...