Page images
PDF
EPUB

Cairo and Fulton Railroad Company v. Turner.

if no objection be made, the court is required to enter judgment in favor of the owner against the company for the damages assessed. If objections are made, they are to be determined by the court. Providing, that during the pendency of the proceedings to assess the value of the land, the construction of the road shall not be delayed, and the company may enter upon the land, etc., upon giving bond and security, to be approved by the clerk or court, that it will pay to the owner of the land all costs and damages adjudged against it, within thirty days after the rendition of the judgment. $§ 2 and 3.

These sections contemplate the application for review and assessment of damages to be made by the corporation, but § 4 manifestly provides that the land-owner may make the application, and limits the time for him to apply, to two years after the road is finished over his land, with exceptions in favor of persons laboring under disabilities.

Though it is a matter of public history that the land-owners on the line of the Cairo and Fulton Railroad favored its construction, and generally granted the corporation the right of way over their lands without demanding compensation, yet if it had been constitutionally requisite in all cases where the right of way was not voluntarily conceded, for the corporation to cause the damages to be ascertained, and actually pay them before entering upon the lands to construct the road, persons disposed to litigate might, by protracting litigation, have delayed the completion of this great public highway for many years, to the public detriment.

If it be objected that the corporation might not pay the judgment rendered on the award of damages, and it and its securities might be insolvent, and thereby compensation might be defeated;

it may be answered that the land-owner is not divested of his title, and the right to the easement does not vest in the corporation until the damages awarded are paid; and besides the owner's paramount claim upon the land, chancery, on his timely application, would, as we have seen, restrain the corporation, by injunction, from the use of the property until it renders the compensation.

Section 48, art. V, of the Constitution of 1868, provides that: "The General Assembly shall pass no special act conferring corporate powers. Corporations may be formed under general lews, but all such laws may from time to time be altered or repealed. The property of corporations, now existing, or hereafter created, shall forever be subject to taxation, the same as the property of individ

Cairo and Fulton Railroad Company v. Turner.

uals. No right of way shall be appropriated to the use of any corporation until full compensation therefor shall be first made in money, or first secured by a deposit of money to the owner irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law."

This Constitution, though since abrogated, was in force when appellant constructed that portion of its road which crosses the land of appellee, but long before the adoption of this Constitution, and when the Constitution of 1836, which contained no such provision, was in force, the legislature, by the act incorporating the appellant corporation, in the exercise of the right of eminent domain, granted to it the right of way over all the lands along the line designated for its road, the survey was made, the roadway located and approved, and provision made for ascertaining damages, and rendering compensation to such land-owners as might claim it, for such right of way over their lands.

We are not prepared to say that the framers of the Constitution of 1868 could deprive the appellant corporation of any substantial rights or franchises clearly vested in it by its pre-existing charter,

In Whitehead and Wife v. Arkansas Central Railroad Company, 28 Ark. 460, above referred to, appellants sued appellee in trespass for entering upon and appropriating their land for a right of way.

The appellee was organized as a corporation, after the adoption of the Constitution of 1868, and under the act of July 23, 1868, to provide for a general system of railroad incorporation. Acts of 1868, 290.

The court held that the ascertainment and payment of damages, as prescribed by the section of the Constitution of 1868, copied above, must precede the entry upon the land by the corporation.

Similar decisions have been made under like constitutional provisions, as before indicated.

Section 23 of the act of July 23, 1868, providing for a general system of railroad corporation, provides a mode for ascertaining damages, and compensating land-owners for the right of way over their lands, etc., but, by the express language employed, it applies to corporations thereafter organized under the act, and coul have

Cairo and Fulton Railroad Company v. Turner.

no application to the appellant corporation. Moreover this section was declared to be in conflict with section 48, article V, of the Constitution of 1868, above copied, in Whitehead and Wife v. Arkansas Central Railroad Company, supra.

On the 28th of April, 1873, the legislature passed an act" for the better regulation and efficiency of railroad companies," in which a mode of ascertaining damages, and compensating land-owners for the right of way is provided, and was no doubt intended to conform to the requirements of section 48, article V, of the Constitution of 1868. Acts of 1873, p. 290; Gantt's Digest, §§ 4944, 4953.

It makes no provision for land-owners to apply for the assessment of damages, but requires "any railroad company organized under the laws of the State, after having surveyed and located the line of their road, in all cases where such company fails to obtain, by agreement with the owner of the fee of lands through which such lines of road is or may be located, the right of way over the same, to apply to the Circuit Court of the county in which the land is situated, by petition, to have the damages for such right of way assessed," etc., etc.

Provides for the damages to be assessed by a jury, and requires the company to deposit the amount of damages in court, or pay it to the owner, whereupon it may enter upon, use, and have the right of way over such land, forever.

This act was passed after the appellant corporation had entered upon, and constructed its road over the land of appellee, and if it was intended to apply to railroad corporations other than such as were organized under the general law, which is by no means clear, we would not give it a retroactive effect, so as to make the appellant corporation, acting under a long pre-existing special charter, a trespasser in entering upon the land of appellee.

The act of January 22, 1855, in conflict with no constitutional provision existing at the time it was passed, and unrepealed as to the appellant corporation at the time it entered upon the land of appellee, afforded him a remedy, on his own application, for the ascertainment and payment of damages for the right of way over his land granted to the appellant by its charter.

Mr. Redfield says: "It seems to be well settled, notwithstanding some exceptional cases, that the remedy given by statute to landowners, for injuries sustained by taking land for railways, is exclusive of all other remedies.

Cairo and Fulton Railroad Company v. Turner.

"But if the railway company have assumed to appropriate the land, in violation of the provisions of the statute to be complied with on their part, their acts are ordinarily to be regarded as trespasses; and when they have acquired the right to the use of the land, but have omitted some duty imposed by the statute, or where they have been guilty of negligence, or want of skill in the exercise of their legal rights, they make themselves liable to an action upon the case at common law." 1 Redfield on the Law of Railways, 336-8.

Again he says, after noticing English cases: "The general principle that the statute remedy, as far as it extends, is exclusive, seems to be universally adhered to in the American courts, with slight modification, some of which are, and some are not, perhaps, entirely consistent with the maintenance of the general rule." Id. 339.

Mr. Pierce says: "If both parties have the power to carry the statute remedy into effect, and there is no prior obligation on the company to resort to it, the injured party cannot avail himself of an action at common law, and is confined to that remedy. But if the company alone can put it into operation, or is under a special obligation to carry it into effect, and has not done so, the injured party is not deprived of his remedy by action." Pierce on American Railroad Law, 230.

Daniels v. The Chicago & N. W. R. R. Co., 35 Iowa, 129, is the only ejectment case cited by counsel for appellee.

The court quoted, with approbation, the rule as laid down by Mr. Redfield and Mr. Pierce above copied, but held that by the language of the Constitution of Iowa, and the terms of the statute providing for the assessment of damages, the tender or payment of compensation was a condition precedent to the right of the company to enter upon the land, and that the company, having entered upon the land without doing either, the owner could maintain ejectment for the land.

So in Memphis and Charleston Railroad Co. v. Payne, 37 Miss. 700, which was trespass by the land-owner against the company, by the terms of the charter the assessment of damages, and the payment or tender of them, were required to precede the entry upon the land by the company, for construction.

If persons who have looked on, and, without objection, seen the Cairo and Fulton Railroad Company construct its road not only across their lands but over its entire line, and become a great pub

Stewart v. Davis.

lic highway, can at any time within the period of limitation applicable to the action of ejectment maintain that form of action for the lands and road equipments with damages for their detention, enhanced by the improvements put upon the lands, as in this case, the injury to the corporation and the inconvenience to the public might be very great.

If the appellee was not confined to the statute remedy, as it seems from the authorities he was, he should in justice be required to resort to some remedy that would give him the value of his land, and leave the company in the use of the easement.

The judgment is reversed, and the cause remanded with instructions to the court below to set aside the verdict.

STEWART V. DAVIS.

(31 Ark. 518.)

Sunday - Injury to a horse hired on.

One who hires a horse on Sunday for use in business or pleasure on that day is liable for an injury occurring to the horse in such use through his misconduct or negligence, although the contract of hiring is void.*

A

CTION to recover the value of a horse. The opinion states the facts.

Clark & Williams, for appellant.

Dodge & Johnson, contra.

WALKER, J. This is an action brought by Davis, to recover the value of a horse hired by him to Stewart.

The pleadings and the evidence present the following state of facts.

Davis, a livery-stable keeper in the city of Little Rock, on the 8th of June, 1873 (the day being Sunday), at the instance of Stewart, hired to him a horse to ride to one Steele's, about fifteen miles, and Stewart executed the following receipt:

*See Hall v. Corcoran, 9 Am. Rep. 30; Frost v. Plumb, 16 id. 18; Smith v. Rollins, 23 id. 509; Parker v. Latner, 11 id. 210, and note.

« PreviousContinue »