Reynolds v. Railway Co.

• Fletcher, Special Judge. This was a proceeding by the Louisiana, Arkansas & Missouri Railway Company .against D. H. Reynolds, in the Chicot circuit court, to .condemn a right of way over his lands. After the railway company had, in compliance with an order of the .circuit judge in vacation, deposited $2000, subject to the order of the court, in a bank at Little Rock, to secure Reynolds for any damages which might accrue to him on account of the right of way, it filed a motion •for leave to dismiss the proceeding, and to have the .amount deposited in bank refunded to it. This motion was sustained by the court, against the objection of Reynolds, and he has appealed. The motion, alleged “that the plaintiff has not, at .any time, entered upon any of the lands described in the petition, or damaged or injured the same; that the plaintiff corporation deems the proposed route impracticable,- and too expensive for construction.” Appellant -does not deny any of the allegations contained in the «notion; nor does he claim that the proceeding was not instituted by the company in good faith. His contention is that the “company has no right to dismiss this proceeding without first surrendering the deposit.” The constitution provides that “no property, nor right of way, shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner, in money, or first secured to him by a deposit of money, which compensation * * * shall be ascertained by a jury of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.” Const, art. 12, sec. 9. The statute relating to proceedings to condemn provides that “where the determination of questions in controversy in such proceedings is likely to retard the progress of work on or the business of such railroad coijipany, the court, or judge in vacation, shall designate an amount of money to be deposited by such company, subject to the order of court, and for the purpose of making such compensation, when the amount thereof shall have been assessed as aforesaid.” “Whenever such deposit shall have been made, in compliance with the order of the court or judge, it shall be lawful for such company to enter upon such land, and proceed with their work through and over the lands in controversy, prior to the assessment and payment of damages for the use and right to be determined as aforesaid.” Mansfield’s Digest, sec. 5464, 5465. In Ex parte Reynolds, 52 Ark. 331, it was held that this statute is in harmony with the constitutional provision above quoted, and the order of the judge requiring the deposit in this case was sustained. The constitution and statute are unambiguous. The purpose for which the deposit is required is apparent. By making the deposit the railroad company merely acquires the right to enter upon the land and proceed with its work pending an assessment of damages. Its right to the property is not complete until the damages have been paid. The deposit is not made for the owner of the land, but, to the order of the court, to secure to him the payment of such damages as may be awarded by the jury. The proceeding is purely statutory. There is no provision in the constitution or statute that a party wha has once instituted proceedings to condemn property shall be bound to go on and complete the proceedings and take the property. There is nothing in either which works a forfeiture of the deposit, or which fixes a charge upon it, beyond the amount of damages which may be sustained by the land owner by reason of the proceedings. If no damages are sustained by him, none can be awarded! by a jury. Lewis on Eminent Domain, secs. 612, 655, 658; White v. Wabash etc. Railroad, 64 Iowa, 281; Blackshire v. Railroad, 13 Kansas, 514; State v. Mills, 29 Wis. 324; Carson v. Hartford, 48 Conn. 86; Stacey v. Railroad, 27 Vt. 39; Bergman v. Railroad, 21 Minn. 533; Sherwood v. Railroad, 21 Minn. 126; Boom Company v. Patterson, 98 U. S. 406; Chicago etc. Railroad v. Gates, 120 Ill. 87; Denver etc. Railroad v. Lamborn, 8 Col. 380; O'Neill v. Freeholders, 41 N. J. L. 161; Williams v. Railroad, 60 Miss. 706; Peoria etc. Railroad v. Railroad, 66 Ill. 175; St. Louis etc. Railroad v. Teters, 68 Ill. 150; St. Joseph etc. Railway Company v. Callender, 13 Kansas, 500; Corbin v. Railway Company, 66 Iowa, 74; Ont. Railroad v. Wilder, 17 Kansas, 247; Oregon Ry. Co. v. Bridwell, 11 Oregon, 283; Springfield etc. Railroad v. Turner, 68 Ill. 188; State v. Railroad, 17 Ohio St. 108; Derby v. Gage, 60 Mich. 1. Affirmed. Wood, J., was disqualified.