St. Louis, Iron Mountain & Southern Railway Co. v. Memphis, Dallas & Gulf Railroad

Hart, J., (after stating the facts). It is insisted by counsel for. the plaintiff that the mere fact that lands are owned by a railroad corporation does not impress them with a public use; and that a railroad company can not simply, by running a preliminary line, or by a horseback survey, and purchasing lands over which such survey has been extended, so impress such lands with a public use as to pre-empt them as against another railroad company which subsequently institutes condemnation proceedings against such lands. This is true as an abstract principle of law, but we do not consider that it is applicable to the facts of this case. Section 6569 of Kirby’s Digest provides that every such company (railroad companies), before proceeding to construct a part of their road through any county named in their certificate of association, shall make a map and profile of the route intended to be adopted by such company which shall be certified by a majority of the directors and filed in the office of the clerk of the county court of such county for the inspection and examination of all parties interested therein. Section 2947 provides, in substance, that a railroad company, after having surveyed and located its line of railroad, shall, in all cases where such company fails to obtain by agreement with the owner of the property through which said line of road may be located, the right-of-way over the same, have the right to institute condemnation proceedings. Thus it will be seen that the map and profile is only required to be filed before actual construction of the road in the county is begun, and is not required to precede condemnation. This is the plain letter of the statute. Condemnation proceedings may be instituted after the line is located, and before the map and profile is required to be filed. The map and profile may be filed after the condemnation proceedings are instituted. The object of locating the line before condemnation is to fix in some public and definite manner the exact route of the proposed road so that the damages to property owners may be properly assessed. It is obvious that, if the line was not definitely located, there could be no guide by which to determine the measure of damages to property owners. So it may be said that, under our statutes, a railroad company can not institute proceedings to condemn property before it has located its lines of road; but it by no means follows that as to property owned by a railroad company a rival company may institute condemnation proceedings in every instance before the company owning the property has caused its lines to be surveyed and its location fixed by stakes or other monuments placed in the ground. Cases of this kind must be determined according to the particular facts of each case. In the case of Fayetteville Street Railway v. Aberdeen & Rockfish Railroad Company, 142 N. C. 423, 9 A. & E. Ann. Cas. 683, the Supreme Court of North Carolina held (quoting from syllabus): “Ordinarily, one of the requisites of a valid location of a railroad, as to third persons and rival corporations, is a preliminary survey by engineers and surveyors who run and mark the lines and report them to the company claiming the prior location; but where the lines are clearly defined, as by the existence of an old roadbed which is entered on and staked out by the agent of the locating company, and the route so marked is approved by the directors as the permanent location of their railroad, a survey by engineers is not of the substance, and should not be considered as being essential.” Under section 6574 of Kirby’s Digest, railroad companies have the right to locate and erect all necessary and convenient stations, and to obtain and hold the lands necessary therefor. Here the defendant had a line of road in actual operation practically to the city of Arkadelphia. Its terminus was across the river, only a mile away from the proposed station site. It contemplated connecting two parts of its road already in operation and of extending them both east and west. It had contracted with the citizens of Arkadelphia to construct its road into the city by a designated date. It had selected the most available bridge site, and on the Arkadelphia side of the river there was but one practical route from the bridge site selected, and that led up a valley to the ground in question. Bluffs were on either side, so that no other route was practicable. This was evident to the engineers of the company without making a survey with instruments. Hence, to all intents and purposes, it was as good and sufficient survey as if-made by instruments. The engineers reported that the ground in question was the only available site for a station. The defendant then purchased the ground for that purpose. It afterwards filed its map and profile as required by the statute preparatory to commencing the work of construction. As above stated, the defendant’s line of road was in actual operation practically to the city of Arkadelphia, and, under the facts and circumstances before us, we are of the opinion that the defendant made an inchoate appropriation of the block of ground in question before the plaintiff filed its petition to condemn. We do not regard the cases cited by counsel for the plaintiff as being applicable to the facts before us. For instance, in the case of Southern Indiana R. Co. v. Indianapolis & L. R. Co. (Ind.) reported in 13 L. R. A. (N. S.) 197, the facts were that a railroad company in process of construction acquired by purchase certain lands through which its proposed road was located, but its map and profile, intended to show the route it had adopted, did not show that all of the proposed right-of-way purchased was necessary for the use of the road, and gave no idea of the width of the right-of-way; and the court held that, under such circumstances, there was no appropriation for right-of-way purposes. Here the proof shows that the ground purchased was for a station, and that all of it was necessary for that purpose. We do not think the case of White River Ry. Co. v. B. & W. Tel Co., 81 Ark. 195, has any application to the facts of this case. That case only decided that the railroad had no right to commence the construction of its road until it filed the map and profile required by the statute, and that it had no exclusive right to its right-of-way prior to the time it acquired it. It is next contended that the circuit court had the power to determine whether or not the lands were subject to condemnation; and that the court erred in transferring the cause to the chancery court. This question has already been decided adversely to the contention of counsel by this court. Mountain Park Terminal Ry. Co. v. Field, 76 Ark. 239; Gilbert v. Shaver, 91 Ark. 231, and later cases. It follows that the decree will be affirmed.