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

• Decision Date: 24 April 1911
• Citation: 137 S.W. 815,99 Ark. 61
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. FAISST
• Court: Arkansas Supreme Court

137 S.W. 815

99 Ark. 61

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

Supreme Court of Arkansas

April 24, 1911

Appeal from Saline Circuit Court; W. H. Evans, Judge; reversed.

Judgment reversed and cause remanded.

W. E Hemingway, E. B. Kinsworthy, H. S. Powell and James H Stevenson, for appellant.

The court erred in submitting to the jury the question of the right of condemnation or the necessity therefor, instead of submitting only the question of the assessment of damages. Plaintiff having filed no answer to the cross-complaint, it should have been taken as confessed. 8 Ark. 279; 71 Ark. 364; 74 Id. 104; Const. art. 2, § 22, art, 12 § 9; Kirby's Dig. §§ 2938, 2939, 2947, 2952; 76 Ark. 239; 43 Id. 111; 45 Id. 278; 78 Id. 83; 59 Id. 171.

W. H. Holleman and W. R. Donham, for appellee.

Failure to answer a cross-complaint is waived where the party goes to trial without insisting on an answer. 90 Ark. 156; 83 Id. 154; 71 Ark. 362; 74 Id. 104; 80 Id. 74.

It is conceded that within the six-rod limit the owner cannot defend on the ground that the railroad is not entitled to condemn, and that the only question is the amount of damages. 76 Ark. 239; 43 Id. 111; 45 Id. 278; 78 Id. 83; 59 Id. 171. But this strip is without the six-rod limit. Kirby's Dig. §§ 2937-9. Necessity for more must be shown. 64 Ark. 357; 69 Id. 104; 10 Am. & E. Enc. Law, 1051; Cooley, Const. Lim. 530, 531. The finding of the jury as to the necessity for public use is conclusive. 73 Ark. 377; 76 Id. 326; 67 Id. 399; 74 Id. 478; 76 Id. 115; 70 Id. 512.

OPINION

MCCULLOCH, C. J.

Appellees instituted an action in the circuit court of Saline County against appellant railway company to recover the alleged amount of the rental value of a small strip of land in the village of Bryant, a station on appellant's railroad adjoining its right-of-way, the same being covered by a spur track running from the main track of appellant's railroad. Appellant filed answer tendering an issue upon the allegations of the complaint, but those issues were settled by the verdict of the jury; and, no exceptions being saved, that branch of the case passed out of the controversy. Appellant filed a cross complaint against appellees, alleging, in substance, that the land in question, containing one-sixteenth of an acre, was in possession of the appellant, and that it is necessary for use by appellant as a switch and loading track at Bryant. The cross-complaint contained all the necessary allegations for an action to condemn the property for railroad purposes, and concluded with a proper prayer for condemnation and assessment of the owner's damages. Appellees filed no answer to the cross-complaint, and on a trial of the case the court, over appellant's objections, submitted to the jury for determination the question whether or not the strip of land in question is necessary for appellant's use in the conduct and operation of its business, and instructed the jury that appellant "must show by a fair preponderance of the evidence that the triangular strip of land belonging to the plaintiffs on which the track is now located is necessary for its practical use in the conduct and operation of its business before it is entitled to take said strip by condemnation." The jury found against appellant's right to condemn the land, and the court rendered judgment accordingly, from which judgment an appeal is prosecuted.

This court has held in a number of cases that the statutory proceeding to condemn land for right-of-way for railroads is special to ascertain the compensation to be paid the owner for the land to be taken, and that no provision is made for an issue upon the right to condemn. Niemeyer & Darragh v. Little Rock Junction Ry. Co., 43 Ark. 111; Reynolds v. Ry. Co., 59 Ark. 171; Mountain Park Terminal Co. v. Field, 76 Ark. 239, 88 S.W. 897; Pine Bluff & Western Ry. Co. v. Kelly, 78 Ark. 83, 93 S.W. 562; Gilbert v. Shaver, 91 Ark. 231, 120 S.W. 833.

In Mountain Park Terminal Co. v. Field, supra, we held that, while the sole object of the statutory proceeding was to ascertain the amount of damages for taking land, the owner is not without remedy where his land is sought to be taken for purposes other than public use, and that courts of equity will mould an adequate remedy by injunction, in order to give relief to the land owner. Judge BATTLE, in delivering the opinion of the court, said: "Courts have the power to determine whether a particular use for which private property is authorized by the Legislature to be taken is in fact a public use (citing authorities). As an incident to this power, in the absence of a statutory remedy, a court of equity has the power to restrain a railroad corporation from taking property for a private use."

Counsel for appellant insist that this rule of procedure does not apply in the present case, because appellant was seeking to condemn land outside of what they termed the six-rod limit. A section of the statute, as to the exercise of the right of eminent domain by a railway corporation, provides that such corporation is authorized to lay out its road, "not exceeding six rods wide, and to construct the same, and for the purpose of cuttings embankments and procuring stone and gravel may take as much more land, within the limits...