St. Louis, Iron Mountain & Southern Railway Company v. Fort Smith & Van Buren Railway Company

• Decision Date: 27 May 1912
• Citation: 148 S.W. 531,104 Ark. 344
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FORT SMITH & VAN BUREN RAILWAY COMPANY
• Court: Arkansas Supreme Court

148 S.W. 531

104 Ark. 344

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FORT SMITH & VAN BUREN RAILWAY COMPANY

Supreme Court of Arkansas

May 27, 1912

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; reversed in part.

Judgment affirmed in part and reversed in part.

Lovick P. Miles, for appellant.

1. The court erred in refusing to transfer to equity. Kirby's Dig., § 6770; 76 Ark. 239; 91 Id. 231; 57 Ark 367; 109 Ill. 237; 91 Ark. 231; 43 Id. 111. The statutory proceeding to condemn crossings is established to ascertain (1) the points of crossing, (2) the manner of crossing, and (3) the compensation for crossings, and no provision is made for an issue upon the right to condemn. Cases supra and also 59 Ark. 171; 78 Id. 83.

2. The court erred in refusing to find for defendant and in refusing to find that appellee was not incorporated or entitled to exercise the right of eminent domain. Kirby's Digest § 6601; 68 Ark. 134; 148 N.Y. 540; 36 Conn. 196; 78 N.Y 529; 38 Kan. 752; 34 Ill. 320; 45 Cal. 365; 3 Cranch (U.S.) 151. (a) The State board has no power to extend a charter after forfeiture. 2 Ark. 229; 11 Id. 44; 17 Id. 608; 15 Id. 555; 28 Id. 200; 38 Id. 205; 76 Id. 303; 71 Id. 561. (b) The evidence fails to show the building and completion of one-tenth of the line within eighteen months.

3. The court erred in refusing to declare it had the power, right or duty to fix the points of crossing elsewhere than appellee sought them. Kirby's Digest, § 6770; 3 Elliott on Railroads, (2 ed.) §§ 1120-4-5a; 207 Pa.St. 406; 180 Id. 634; 33 Cyc. et seq.; 150 Pa.St. 193; 122 Pa.St. 513; 160 Id. 623; 8 F. 858; 34 P. 558; 62 Md. 343; 73 S.W. 488.

4. The court erred: (a) In refusing to recognize its duty or power to fix the terms and conditions upon which the crossings should be installed and to cover such details as are ordinarily covered by contracts. (b) In refusing to incorporate in its judgment substantially the terms and conditions of exhibit "A" to answer and cross bill. 33 Cyc. 256; 110 Mo. 510; 19 Hun 38; 35 Id. 232.

5. No costs of crossing should have been assessed against appellant. 42 Ark. 249; 81 Id. 195; Elliott on Railroads, vol. 3, (2 ed.) § 1128.

Read & McDonough and S.W. Moore, for appellee.

1. The allegations in the answer and cross complaint were insufficient to authorize a transfer to equity. Kirby's Dig., §§ 5980, 5983, 6091, 6098; 36 Ark. 446; 99 Ark. 61; 73 Ark. 7, 344; 50 Ala. 439; 3 Dana 73; 33 Miss. 171; 4 Enc. Pl. & Pr. 606; 58 Ala. 314; 56 N.H. 114; 31 Cyc. 108; 8 F. 529; 71 Ark. 222; 99 Ark. 61; 60 Id. 606; 35 Id. 109; Ib. 104, 555; 95 Id. 6; 91 Id. 231; 76 Id.; 63 Id. 94; 43 Id. 111.

2. If the Frisco contract was not a completion of one-tenth of the line, the charter is still valid because of the extension by the Board of Railroad Incorporators of the time. 47 S.E. 839; 13 L. R. A. 699; 59 Ark. 66; 138 U.S. 1; 41 Ark. 436; Kirby's Dig., §§ 6545-6, 6601; 20 Ark. 495; Ib. 443; Ib. 204; 128 N.Y. 240; 103 Ill. 491; 44 U.S. 534; 133 Id. 198; 137 Mass. 71; 33 Cyc. 40, and notes; Const. Ark. art. 12, § 2, art. 17, §§ 1, 7, 9; 5 Thompson on Corp. § 6597; 2 Elliott on Railroads, § 696; 1 Id. § 20; 103 F. 747.

3. The court simply held that the points where crossings were sought were the most feasible points for crossings. Under our Constitution and statutes the court could not adopt any other places of crossings. 3 Elliott on Railroads, § 1128; 42 Ark. 249.

4. No unreasonable expense should be put upon a new company seeking a crossing. 94 P. 907; 102 P. 778; 103 F. 747; 118 Mo. 502; 30 Oh. St. 604; 118 Mo. 502; 105 Ill. 388; 20 S.W. 319; 121 Mass. 124; 36 Conn. 255; 97 Mo. 457; 159 Mass. 283.

5. The cost of crossings was properly assessed. Kirby's Dig., §§ 2954, 2962.

6. Appellant is estopped. 98 Ark. 439; 80 Id. 543; 91 Id. 141; 75 Id. 410; 36 Id. 663; Ib. 465; 51 Id. 235; Ib. 491; 2 Thompson on Corp. § 1991.

OPINION

MCCULLOCH, C. J.

Appellee is a domestic railway corporation chartered for the purpose of constructing and operating a railroad from the city of Fort Smith, Arkansas, to the city of Van Buren, a distance of about five miles. Its proposed line crosses, in the city of Fort Smith, the main track and certain sidetracks and spurs of appellant railway company, and it seeks in the present proceeding to condemn the right-of-way for these crossings, seven in number.

The statutes of this State contain the following provisions concerning the rights of intersecting railroads:

" Section 6769. Every railroad corporation created and organized under the laws of this State, or created and organized under the laws of any other State or the United States, and operating a railroad in this State, shall have the power to cross, intersect, join or unite its railroad with any other railroad now constructed, or that may hereafter be constructed, at any point on its route and upon the grounds and right-of-way of such other railroad company, with the necessary turnouts, sidings and switches and other conveniences in furtherance of the object of its construction. And every railroad company whose railroad is or shall be crossed, joined or intersected by any new railroad shall unite with the owners and corporation of such new railroad in forming such crossing, intersection and connection, and shall grant to such railroads so crossing, intersecting or uniting all the necessary facilities for that purpose as aforesaid.

" Section 6770. If the two corporations can not agree upon the amount of compensation to be made for the purposes set forth in the foregoing section or the points or manner of such crossing, junctions or intersections, the same shall be ascertained and determined by a court of competent jurisdiction in the same manner as provided for the ascertainment of damages for right-of-way for railroads." Kirby's Digest.

Maps or blueprints of the proposed line of appellee's road and of the crossings sought to be condemned were filed with the complaint, and it is alleged in the complaint that the two corporations had failed to agree as to the said crossings. Appellant filed an answer containing the following statements: "Plaintiff * * * is not a railroad corporation created, organized and existing under the laws of the State of Arkansas; it is not entitled, under the law, to bring and maintain an action for the condemnation of the crossings. * * * The plaintiff has not found it necessary to cross, intersect or unite its railroad with the railroad of the defendant, as shown in the complaint; denies that it has become necessary for the railroad purposes of plaintiff, in constructing its main line of railroad from Fort Smith to Van Buren, to make the crossings shown in the blueprint; says that it is wholly unnecessary, unreasonable and unwise for plaintiff to have the crossings Nos. 1 to 7, inclusive, demanded as set out in the complaint; the location of the said line of plaintiff is into, through and upon that portion of the property of defendant devoted to yard use, and to the service of industries, and the construction of the line of plaintiff, as proposed in the complaint herein filed, will result in the destruction of, and damage to, the property of defendant, and in an unsafe and inefficient railroad for plaintiff."

The answer is made a cross complaint, asking that the cause be transferred to the chancery court, so that equitable relief might be granted, and as ground for such relief the following statement is made:

"Defendant says that it is informed and believes and alleges upon information and belief that the Fort Smith & Van Buren Railway Company is a private enterprise which was chartered ostensibly to build a line from Fort Smith to Van Buren Ark., but it is not so chartered at the present time, and that it has no intention of constructing such a line, and does not intend to build or operate any line as authorized by its charter, but seeks to condemn solely for the construction of a switch or switches, while never intending to own or operate a main line with which to connect; its proposed line, as now projected, is not intended to, nor will it, be a main line, nor an aid to the convenience of operation of any main line of plaintiff; it is conceived and intended to serve only private industries, in which it will be financially interested, and to which the public will have no access in common; it does not intend to locate or maintain any station buildings, or to render the public service contemplated by the laws and by the Board of Railway Incorporators when its charter was granted; it has not acquired any right-of-way in the city of Van Buren, nor any terminal facilities; has made no provision for crossing the Arkansas River at Van Buren; has acquired no right-of-way between the city of Van Buren and a point approximately one mile and a half northerly from its crossing of defendant's line at No. 1; nor has it done any construction work within such distance from the town of Van Buren, notwithstanding its charter was issued April 9, 1910; the present purpose of plaintiff is entirely in conflict with, and constitutes an abandonment of, the purposes for which it was chartered, as will more fully appear upon a full disclosure of its records, to which defendant has not now access; it is now seeking to use its alleged articles of incorporation as a subterfuge with which to subserve only the private interests of its stockholders, and the result will be, if permitted, the perpetration of a fraud upon the State by exercising the right of eminent domain of the State for a purpose not contemplated by the State when its charter was granted; and its present purpose is to use such charter as subterfuge to take the property of this defendant and impose an irreparable...