St. Louis & S. F. R. Co. v. City of Fayetteville

• Decision Date: 27 May 1905
• Citation: 87 S.W. 1174
• Parties: ST. LOUIS & S. F. R. CO. v. CITY OF FAYETTEVILLE.
• Court: Arkansas Supreme Court

87 S.W. 1174

ST. LOUIS & S. F. R. CO. v. CITY OF FAYETTEVILLE.

Supreme Court of Arkansas.

May 27, 1905.

Appeal from Circuit Court, Washington County; John N. Tillman, Judge.

Proceedings by the city of Fayetteville to condemn a right of way for a street across the tracks of the St. Louis & San Francisco Railroad Company. From a judgment assessing damages in favor of the railroad company, both parties appeal. Modified.

L. F. Parker and B. R. Davidson, for plaintiff. E. S. McDaniel, for defendant.

RIDDICK, J.

This is a proceeding on the part of the city of Fayetteville to condemn a right of way for a street across the tracks and right of way of the St. Louis & San Francisco Railroad Company. The circuit court in which the action was brought gave judgment in favor of the city for the right of way, and assessed the damages to the company at $300. Both sides appealed, and the case has been ably argued before us by learned counsel for the city and the railroad company. We shall briefly state our conclusions on the points involved:

In the first place, we are of the opinion that the statute giving the city authority to lay off and establish streets within the corporate limits impliedly gives it the right to cross the tracks of railroads when it is necessary to do so for the purpose of connecting the two ends of the street. Under a condemnation of a right to cross, nothing will be acquired but a mere right of way for the street across the railroad, and the right of the company to use its property for railroad purposes will be impaired only to a very slight extent. A right so slightly affecting the franchise of the corporation may be inferred from the general power to lay off, condemn, and establish streets. N. J. S. R. Co. v. Long Branch Com., 39 N. J. Law, 28.

There had been a previous trial of this case, and a verdict of the jury, with special findings. The defendant moved for a new trial, but it excepted from its motion the finding of the jury that an overhead crossing was necessary. The plaintiff thereupon admitted that the verdict was contrary to the law and the evidence, and conceded that a new trial should be granted. The court then granted a new trial generally, without making any reservations as to the findings which had been excepted in the motion of defendant. This we think had the effect to set aside all findings of the jury made at that trial. It is true that the court was not required to order a new trial on the whole case, but it had the power to do so. As it made no exceptions or reservations in the order for a new trial, we are of the opinion that the order for a new trial set aside the verdict and judgment entirely, and that the court properly held that the special finding of the jury that an overhead crossing was necessary was also set aside by this general order granting a new trial.

But if we concede that an overhead crossing is necessary at this place, it would not, in our opinion, entitle the company to any increase in the amount of damages. For what the city is seeking now is to acquire for the public a right to cross the railway track, and right of way of the company at the point named. If we concede that the Legislature has not empowered the city to compel the company to construct the crossing and keep it in repair, as a police regulation, yet, as the Legislature can do this at any time — as it can compel the company, without compensation, to construct and keep in repair either an overhead or grade crossing, as the circumstances may require — it follows that those matters are not elements of damages in this case. Railroad Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. 581, 41 L. Ed. 979.

If, under the...