St. Louis, Iron Mountain & Southern Railway Co. v. Memphis, Dallas & Gulf Railroad Co.

Decision Date22 January 1912
PartiesST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. MEMPHIS, DALLAS & GULF RAILROAD COMPANY
CourtArkansas Supreme Court

Appeal from Clark Chancery Court; James D. Shaver, Chancellor affirmed.

STATEMENT BY THE COURT.

The St Louis, Iron Mountain & Southern Railway Company instituted in the circuit court a proceeding under the statute to condemn for railroad purposes a certain block of ground in the city of Arkadelphia in Clark County, Arkansas, the property of the Memphis, Dallas & Gulf Railroad Company, and in its petition for condemnation made the usual statutory allegations. The defendant demurred to the petition which was overruled. The defendant then filed an answer, and a motion to transfer the cause to the chancery court. The answer denied the allegations of the petition or complaint. In addition, it set up that the defendant was a railroad corporation engaged in constructing a railroad from Dallas, Texas, through Arkansas and Clark County to Memphis, Tennessee; that a part of its line was already constructed and in operation; that its road was in actual operation from Daleville, a point across the river and one mile distant from Arkadelphia, eastward through Clark County to Dalark, a distance of seventeen miles; that it was the intention of defendant to construct its road into the city of Arkadelphia, and that it purchased the block of ground in question for depot purposes before the condemnation proceeding was instituted by the plaintiff. The plaintiff demurred to the answer, and the demurrer was overruled. The court then transferred the cause, over the objections of the plaintiff, to the chancery court.

The evidence on the part of the plaintiff shows that it has owned and operated its main line of railroad on its present location through the city of Arkadelphia since about the year 1873. It had a freight depot near the block of ground in question, and for many years used the block of ground in question, with the consent of its owner, in receiving and discharging freight from its warehouse. It finally erected a new depot, and, wishing to use this block of ground in connection therewith, began negotiations with its then owner for the purchase thereof. Pending the negotiations, the defendant purchased the ground. The evidence on the part of the plaintiff tends to show that the block of ground in question is necessary for its use for depot purposes. After the defendant purchased the block of ground, the plaintiff instituted a proceeding to condemn it.

The evidence on the part of the defendant shows that a charter was granted to it to construct a railroad from Dallas, Texas through the State of Arkansas and Clark County to Memphis Tennessee; that it had already built forty-two miles of railroad, and bought twenty-eight miles all leading in the direction of Memphis from Ashdown, in Little River County Arkansas; that it has forty-two miles in operation from Ashdown to Murfreesboro in Pike County, west of Arkadelphia, and has six and one-half miles in operation east of Arkadelphia between Daleville and Dalark in Clark County; that Daleville is just across the river from Arkadelphia and about a mile east of it; that a distance of twenty-five miles would connect these two parts of its road. That it has already secured the right-of-way as far east as Helena, and has secured bonuses from Arkadelphia, Pine Bluff, DeWitt and Helena; that at Arkadelphia its proposed road will connect with the old Ultima Thule, Arkadelphia & Mississippi Railroad, now owned by the defendant, and which extends twenty-two miles in the direction of Pine Bluff; that the defendant intends to erect a depot in Arkadelphia within the next two years, and the block of ground in question was purchased for that purpose; that, if this piece of ground is taken away from it, it will destroy the use for which it was designed by the defendant; that the company intends to construct a bridge over the river between Arkadelphia and Daleville. After the river is crossed, the location of this piece of ground is described by defendant's witnesses as follows:

"There is a hollow which we follow for some distance, and this piece of ground lies in a triangular shape right at the mouth of this hollow. It will be necessary for us to follow further down the valley with the main line, and the valley will be used for yards, sidetracks, etc., and this particular piece of land would be about where our station would be placed. There is a bluff on each side, which would make it impracticable to undertake to cut down and put in shape for station location. There is no other piece of ground, close to the city of Arkadelphia as this place which it would be practicable from a topographical standpoint for our company to use or secure for the purpose of erecting a station. The location of a station on this piece of ground was the most desirable that able engineers were able to find."

The testimony on the part of the defendant also showed that, at the time the petition to condemn was filed by the plaintiff, no map of definite location had been filed by the defendant of its road through Clark County, as required by the statute. The witnesses do say, however, that the defendant's engineers had been over the ground, and that no other route was as practicable as that described above; that since the institution of this suit the engineers of the defendant have located its line along this route, and a map and profile thereof has been prepared, properly signed and filed in the county clerk's office as required by statute.

Other evidence will be stated or referred to in the opinion.

The chancellor found that the defendant had a railroad in actual operation, and intends to construct its line of road into and through Arkadelphia in the near future and to establish its station on the land in controversy; that it has entered into a contract with the citizens of Arkadelphia by which it is required to construct its lines into that city by December 14, 1911, and that the land in question was purchased for a passenger station, and that all of it will be required for that purpose. A decree was accordingly entered enjoining the plaintiff from condemning said land, and from interfering with the defendant's use and possession of said block of ground.

The plaintiff has duly prosecuted an appeal to this court.

Decree affirmed.

W. E. Hemingway, E. B. Kinsworthy, W. V. Tompkins, T. T. Dickinson and James H. Stevenson, for appellant.

1. The purchase of the lot of ground in controversy by appellee at a private sale and the recording of its deeds therefor transferred the title and gave notice of private ownership; but neither this nor the horseback survey, nor any private unrecorded and unadopted maps or profiles of the company or its engineers nor the intent of its vice president and general manager or other officers or agents to use it for railroad purposes impressed upon it a public use or a public character so as to reserve the same for its own use and thus pre-empt and protect the property from being taken from it by appellant in the exercise of its power of eminent domain. 168 Ind. 360; 13 L. R. A. (N. S.) 197; 110 N.Y. 128; 12 L. R. A. 220; 4 L. R. A. 785; 110 F. 879; 6. N.J.Eq. 635; 105 Pa. 13; 30 S.E. 86; art. 2, §§ 22, 23, art. 12, § 9, and art. 17, § 9, Const. Ark.; Kirby's Digest, §§ 2900, 2901, 2902, 6547; Id. §§ 6545, 6546, as amended by acts 1907, p. 195; Id. §§ 6548, 6574, 6569, 6570, 6571, 6572, 2947, 2955-6, 2903-5, 2958; Id. §§ 6581, 6575; 43 Ark. 111; 59 Ark. 171; 76 Ark. 239; 78 Ark. 83; 91 Ark. 231; 137 S.W. 815; 68 Ark. 134; 57 Ark. 363.

Callaway & Huie, for appellee.

1. It is true, as contended by appellant, that, at law, the statutory right of a railroad company to...

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