St. Louis & S.F.R. Co. v. Foltz

• Decision Date: 31 October 1892
• Citation: 52 F. 627
• Parties: ST. LOUIS & S.F.R. CO. v. FOLTZ.
• Court: U.S. District Court — Western District of Arkansas

52 F. 627

ST. LOUIS & S.F.R. CO. v. FOLTZ.

United States Circuit Court, W.D. Arkansas.

October 31, 1892

(Syllabus by the Court.)

Under the constitution and laws of Arkansas, a married woman may own real and personal property separate and apart from her husband, and she may devise, bequeath, and convey the same as if she were a feme sole. As to such property she is sui juris.

A nonresident railroad company, which has not become domesticated under the constitution of Arkansas, cannot condemn or appropriate lands for a right of way, for depot grounds, car yards, or machine shops.

If such a railroad company acquires a right to come into the state to do business, but still remains a nonresident corporation, and it undertakes to acquire a right of way, etc., by condemnation proceedings against a married woman, who owns real estate as her separate property, and such married woman takes part in such condemnation proceedings, and accepts the award, she is estopped from recovering by a suit of ejectment the lands condemned after she has retained the money for a number of years, and still retains it, although the lands were condemned illegally.

Although a constitutional provision of a state may prohibit a nonresident railroad company from acquiring lands for the use of its road by condemnation or appropriation, still it may acquire such lands by an agreement with any citizen having a right to contract.

The words 'condemn or appropriate,' used in the constitution of the state, mean a taking of private property under the right of eminent domain, and not by contract.

A married woman may, under the laws of the state, make a contract with a nonresident railroad company having a right to do business in the state, by which she may convey to it a right of way for its roadbed, car yards, machine shops, etc. If she takes part in condemnation proceedings which may be illegal, and accepts the damages awarded, and retains the same for over six years, when she brings suit to recover the land, still retaining its value found by the jury in the condemnation proceedings, her conduct will be construed as amounting to an implied contract with the railroad company for a right of way, etc., out of her separate property. It will be held as an acquiescence by her, and in equity she will be estopped.

When under the laws of a state, the common-law disabilities of a married woman have been so far removed as to place her in a position where she is sui juris as to her separate property she is subject to the law of estoppel in pais, and she is estopped by her acts and declarations, and is subject to all the presumptions which the law indulges against others with full capacity to act for themselves. The law presumes the party knew her rights. Her silence for that length of time with possession and enjoyment of the money, and a failure to return it when the property was her separate property, makes up a state of case which creates an estoppel, because it amounts to a condition which must in equity and good conscience be construed as a ratification of the act of the railroad company in paying her the money and taking possession of the property.

When she contracts as if unmarried she can be estopped as if sole.

A married woman who can under the law hold property in her own right becomes sui juris, and she may be bound by an estoppel in pais, created by her silence.

Defendant set up in her complaint in the action of ejectment that she was entitled to the immediate possession of certain lands therein described, for the reason that plaintiff undertook, in the state circuit court of Sebastian county, Ark., to condemn, under the laws of the state, the said lands to be used for a roadbed and right of way for its said railroad, as well as for car and machine shop purposes. Said suit was removed to this court on the application of plaintiff, on the ground that it was a nonresident corporation,-- a citizen of the state of Missouri. At the November term, 1883, on January 15, 1884, of this court, condemnation proceedings were had in this court, and the jury assessed the damages of plaintiff at $4,180.84. Said amount was paid into court by plaintiff, and paid by order of the court to defendant, and accepted by her, and the judgment of the court was entered vesting the said lands in plaintiff, to be used by it for the purposes aforesaid. The defendant in her original and amended complaint claims that plaintiff has forfeited the right to the use of about 24 acres of said land, because it has not used it for the purpose for which it was condemned; again, that the plaintiff had no right to condemn, because it was a nonresident corporation, and it could not, under the constitution of the state, take property by condemnation proceedings; that the right of eminent domain cannot be exercised in favor of such a corporation; that all the condemnation proceedings were a nullity, and that no right or title passed to plaintiff by them. Pending the suit in ejectment, the plaintiff filed its bill in equity, praying that defendant be restrained from proceeding any further with her suit at bar, for the reason that her conduct in accepting the sum of $4,180.84,--the amount awarded by the jury in the condemnation proceedings,-- and holding the same, and not returning said sum into court, amounts to an estoppel in pais. Plaintiff, in its bill in equity, further asks that its title be quieted to said land, and that the cloud growing out of the claim of defendant be removed. To this bill in equity defendant filed an answer. By agreement of parties the case was heard by the court upon the bill and answer, and the complaint and answer in the action of ejectment, and all exhibits in said suit were considered as exhibits in the equity case. Mrs. Foltz did not claim the right to recover the whole of the 31.07 acres, but that amount, less 7 acres, used by the railroad for its roadbed and car track.

Tabor, Humphries & Silverman, for plaintiff.

B. R. Davidson, for defendant.

PARKER District Judge.

The first question is: Did the St. Louis & San Francisco Railroad Company, at the time this property was condemned, have a right to take property by condemnation proceedings, it being a railroad corporation residing in Missouri? Section 11, art. 12, of the state constitution, provides that no foreign corporation shall 'have power to condemn or appropriate property. ' This means that a corporation which is not a domestic one cannot use the power of eminent domain to acquire property for its uses; that a railroad company which does not become domesticated cannot use the right of eminent domain to acquire necessary real estate for its right of way, depot grounds, machine shops, etc. The St. Louis & San Francisco Railroad Company was, at the time of the condemnation proceedings, a foreign corporation, the same being chartered by the state of Missouri; but by the laws of the state of Arkansas (Sess. Acts, approved March 16, 1881, Sec. 5) the St. Louis & San Francisco Railroad Company had a right to come into the state upon certain conditions. A part of said section 5 of said act is as follows:

'Any railroad company incorporated by or under the laws of any other state, and having a line of railroad built or partly built to or near any boundary of this state, and desiring to continue its line of railroad into or through this state, or any branch thereof, may, for the purpose of acquiring the right to build its line of railroad, lease or purchase the property, rights, privileges, lands, tenements, immunities, and franchises of any railroad company organized under the laws of this state, which said lease or purchase shall carry with it the right of eminent domain held and acquired by said company at the time of lease or sale, and thereafter hold, use, maintain, build, construct, own, and operate the said railroad so leased or purchased as fully and to the same extent as the company organized under the laws of this state might or could have done; and the rights and powers of such company, and its corporate name, may be held and used by such foreign railroad company as will best subserve its purpose, and the building of said line of railroad. * * * '

We find the facts to be that in September, 1880, a railroad company called the Missouri, Arkansas & Southern Railroad Company, was incorporated under the laws of Arkansas for the purpose of constructing a railroad from a junction with the St. Louis, Arkansas & Texas Railroad Company, organized under the laws of the state of Arkansas, at Fayetteville, Ark., through a portion of the counties of Washington, Crawford, and Sebastian, to a junction with the Little Rock & Ft. Smith Railway at or near Ft. Smith, in Sebastian county; that in January, 1882, said Missouri, Arkansas & Southern Railroad Company sold and...