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

• Decision Date: 30 March 1908
• Citation: St. Louis, Iron Mountain & Southern Railway Co. v. State, 109 S.W. 545, 85 Ark. 561 (Ark. 1908)
• Parties: ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE
• Court: Arkansas Supreme Court

109 S.W. 545

85 Ark. 561

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

Supreme Court of Arkansas

March 30, 1908

Appeal from Marion Circuit Court; Brice B. Hudgins, Judge; affirmed.

Judgment affirmed.

T. M Mehaffy, J. E. Williams and Horton & South, for appellant.

1. The amendment should have been stricken out, or, if permitted to stand, appellant should have been granted a continuance. The suit, as brought, evidently was intended to cover the first clause of § 6681, Kirby's Digest, and on this issue there would have been a failure of proof which would entitle the defendant to a verdict. The amendment substantially changed the nature of the case. Refusal to strike it out or to give defendant a reasonable time to answer was an abuse of discretion. 71 Ark. 197; 67 Ark. 142.

2. The order of the county court was improperly admitted. It does not declare the road a public road, but provides that it may be established at some future time. The record was not notice to defendant of a public highway.

3. The notice given by the road overseer to the Missouri Pacific Railway Company was not notice to appellant, the defendant in this case and the company which built the railroad. Penal statutes are strictly construed, and the remedies provided strictly pursued. 56 Ark. 44; 59 Ark. 342; 71 Ark. 561. Failure to obey the notice is the condition on which the penalty is incurred. Kirby's Dig. §§ 6682-3-4. There is a fatal variance between the notice declared on and that introduced in evidence. 69 Ark. 363; 68 Ark. 241; 66 Ark. 120; 58 Ark. 248.

4. After a railroad has been built, it becomes necessary to condemn a right of way over the railroad and offer compensation before its property can be confiscated for public roads. 65 Ark. 492; 75 Ark. 537.

5. The demurrer should have been sustained. The State alone could not sue. The action should have been brought in the name of the State for the use of the road district. Kirby's Digest, § 6685.

William F. Kirby, Attorney General, and Daniel Taylor, for appellee.

There is no error in the record. The judgment should be affirmed.

OPINION

BATLE, J.

Garner Fraser, prosecuting attorney for the 14th Judicial Circuit of Arkansas, of which Marion County is a part, on behalf of the State for the use of Marion County, filed a complaint, in which he alleged, substantially, as follows: "The defendant (St. Louis, Iron Mountain & Southern Railway Company) is the owner of a line of railroad through Marion County, Arkansas. That the defendant, in constructing its line of railroad through Marion County, Arkansas, constructed the same across a certain public road leading from Yellville and intersecting what is known as the Fallen Ash road at a point where said railroad crosses the line running north and south between sections 32 and 33 in said county, in Tp. 19 N., R. 16 W. That said defendant has failed and refused to construct a public crossing at said point as required by law. That, by making a cut at said point about 50 feet wide and about 20 feet deep, it has obstructed said road at said crossing, thereby making it impossible to cross said railroad at said crossing. That on the 30th day of November, 1905, I W. Pangle, road overseer of said district, notified the defendant, as required by law, that the railroad crossing was not such as the law required, and notified the defendant to so construct the crossing within sixty days." And asked for a judgment against the defendant for $ 2,000, and $ 5.00 a day from and after the first day of February, 1906, until the trial in this action.

The defendant answered as follows:

"1. It denies that it has crossed or obstructed the public highway mentioned in plaintiff's complaint, or any knowledge or information concerning the same sufficient to form a belief.

"2. It denies that a public road was in existence, at the place mentioned in plaintiff's complaint, at the time when the defendant built its railroad at said place.

"3. It denies that any public road has been established in manner or form as required by law at the place mentioned in said complaint, before the defendant built its railroad at said place.

"4. Further answering, the defendant says: That, when it built its railroad at the place referred to in plaintiff's complaint, it did so with the consent of the landowners at said place, and after it had lawfully procured the title to its right-of-way at said place. That no proceedings have been had against this defendant to divest its right or title or to condemn a right-of-way for a public road or crossing across its property, and no offer of compensation has been made to it or legal steps taken to divest its title, or give the plaintiff the right to build a public road across said railroad. That to maintain this action would divest the property rights of this defendant without due process of law."

Defendant also demurred to plaintiff's complaint, because it had no legal capacity to sue in this case; and because complaint did not state facts sufficient to constitute a cause of action.

After the commencement of the trial and the introduction of a part of the testimony and during the trial, the plaintiff, by leave of the court first had and obtained, over the objection of the defendant, amended its complaint by the following allegation:

"That at the January term, 1899, there was an order of the: county court of Marion County ordering that a public road be opened on the line between sections 32 and 33, township 19 N., R. 16 W.; that some time during the year 1903 the defendant railway constructed its line of road across this section line above described; that after said railroad was built the overseer of said road district, acting under said order, opened up said road on the line between sections 32 and 33 aforesaid, and that that right-of-way for said road was paid for, and road overseer instructed to open said road,"

The defendant then asked for time to answer the amendment, which the court refused.

In the trial an order of the Marion County Court, made on the 21st day of January, 1899, was read as evidence. It is as follows:

"Report of viewers of road between sections 4 and 5, Tp. 18 N., R. 16 W.

"On this day this cause came on to be heard, and the court, after hearing all the evidence in the case and the argument of counsel and being fully advised in the premises, doth allow said road on the section line, which is as follows, towit commencing at or near the N. E. corner of J. C. Floyd's fence on the section line between 4 and 5, Tp. 18 N., R. 16 W., thence north on said section line to A. R Hutchinson's lot, thence west to the S.W. corner of said lot, thence north on the west line of said lot, so as to make said line the center of said road to the N.W. corner of said lot, thence east to the section line between sections 4 and 5, thence north on said section line to the township line, thence west on said township line to the corner of sections 32 and 33, township 19 N., R. 16 W., thence north on said section line between section 32 and 33 township 19 N., R. 16 W., to the Fallen Ash road. And the court finds that by making said road L. L. Seawell will be damaged in the sum of $ 35, and that A. R. Hutchinson will be damaged in the sum of $ 25, and that R. C. Ferra will be damaged in the sum of $ 21, to be paid by the county if said road is opened up as above described, and the clerk of ...