Hahn & Carter v. Gould Southwestern Railway Co.

Wood, J., (after stating the facts). The question is, Was appellee liable to appellant for the expense of installing a new crossing for appellee’s railroad over the ditch which appellant was under contract to construct? Section 28 of the General Drainage Act of 1909, Act 279, under the authority of which the drainage district and appellant entered into the contract for digging the ditch, provides in part as follows: “Such ditches shall also be carried under or through any railroad track or tramway, and the owner thereof shall have no claim for damages on that account, but shall bridge such ditch at its own expense.” The term “bridge,” as used in the clause of the act quoted, means “build a crossing over.” Under the express terms of the act, therefore, the appellee had to build the crossing over the ditch “at its own expense.” The question is not presented here as to whether or not the drainage district or appellants could acquire the right-of-way for the ditch'under appellee’s railroad without compensation for such right-of-way, and we do not decide that question. As already stated, the only question presented by this record is whether or not appellee is liable for the expense of installing the new crossing that became necessary in constructing the ditch under its track. The allegations of the complaint and the contract set forth therein, upon which appellants base their cause of action, show clearly that the question as to whether or not appellee is entitled to compensation for the right-of-way of the ditch under its track or roadbed is not involved. Section 6681 of Kirby’s Digest provides that where any public road or highway shall cross any railroad, such railroad shall construct the crossing. And Judge Rid-dick, speaking for the court in construing this statute in Southwestern Railway Company v. Royall, 75 Ark. 532, said: “We think it may well be inferred from the language of this statute that no compensation was intended to be paid the company, either for constructing the crossing or for keeping it in repair. “When a highway is established across a railroad track in this State, it becomes its duty under this statute to construct the crossings and keep them in repair. This is a police regulation, and similar provisions are found in the statutes of other States. As nothing is said in the act about compensating the company for this burden, which the law places upon it, we think none can be implied. It seems plain to us that none was intended, for it is not usual to allow compensation for the expense of obeying a police regulation. * * * “For this reason we are of the opinion that the circuit court correctly held that the company was entitled to no compensation for constructing the crossing and keeping it in repair.” See also Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U. S. 226; Chicago, Burlington & Quincy Railway Co. v. Drainage Commissioners, 200 U. S. 562. In the recent case of Chicago, Milwaukee & St. Paul Railway Co. v. City of Minneapolis, it is held: “The expense of constructing and maintaining the necessary railway bridge over the gap in a railway right-of-way, made by the municipal construction across it of a canal or waterway, with footpaths on each side connecting two lakes, used for public recreation, may be cast upon the railroad company, without denying it the due process of law guaranteed by the Federal Constitution.” See 232 U. S. 430. The statute in regard to railway companies being required to construct crossings over roads or highways, construed in Railway v. Royall, supra, is precisely similar to the clause of the act under consideration. The principles announced in the above case are controlling here, and it follows that, under the law and the contract be? tween the appellants and appellee, as set up in the complaint, the appellee is liable to appellants in the sum of $150. Under the contract, the payment of this sum by the appellants was not voluntary, and appellants are, therefore, entitled to have judgment for the same against appellee. The court, therefore, erred in sustaining appellee’s demurrer to appellants’ complaint and dismissing the same. The judgment is therefore reversed, and judgment will he entered here in favor of the appellants against appellee for the sum of $150.