St. Louis Southwestern Ry. Co. v. Christian

• Decision Date: 04 June 1924
• Docket Number: (No. 29.)
• Citation: St. Louis Southwestern Ry. Co. v. Christian, 262 S.W. 29 (Ark. 1924)
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. CHRISTIAN.
• Court: Arkansas Supreme Court

262 S.W. 29

ST. LOUIS SOUTHWESTERN RY. CO. v. CHRISTIAN.

(No. 29.)

Supreme Court of Arkansas.

June 4, 1924.

For majority opinion, see 261 S. W. 297.

HART, J. (dissenting).

Judge HUMPHREYS and myself do not agree to the law and facts as found by the majority opinion. In the majority opinion it is said that the evidence showed that the right to use the crossing at Vine street was exercised permissively, and no public way was acquired by prescription. On this point we quote from the testimony of Wiley George, as abstracted by counsel for appellant, the following:

"The bridge stringer across the ditch south of the depot has been there 7 or 8 years; ever since I lived in Paragould. The crossing is not restricted to any one class, but is used as a public crossing. The Cotton Belt right of way and track are used by the public generally as a pathway in going up north to town."

On this point E. O. Vickroy says:

"The bridge stringer across the ditch north of trestle No. 247, opposite Vine street, or nearly so, has been used by the public in crossing the ditch ever since I have been living in that town, better than 12 years."

Vester Grooms said:

"This stringer has been used as a footbridge ever since I can remember. All the boys who worked at the Pekin Stave & Heading Shop, and who lived on the west side of the track, used the crossing. I never knew of any restriction on the use of the crossing."

Frank Christian said:

"Some one is traveling at all times the pathway that leads up and down the right of way. The log crossing is used as much as the public crossings at Junction and Park streets."

Girvies French said:

"The footbridge and pathway had been used by the public generally ever since I have been in town, 10 or 12 years. I never heard any whistle or signal by the train from the time it pulled into town until it gave two long blasts, when it started to go out."

I. N. Jackson said:

"I am an employee of the Missouri Pacific, and have been for more than 12 years. The crossing of the Cotton Belt and Iron Mountain in the city of Paragould, at what is known as Vine street, has been used generally by the public ever since I have been here. The public generally uses the roadbed of the Cotton Belt traveling north and south, up and down the tracks past that crossing."

Several other witnesses testified to substantially the same state of facts, and there is no other and different evidence on this point.

It is well settled in this state that a way by prescription may be established by evidence of user by the public, adverse and continuous, for a period of 7 years or...