Fort Smith & Western Railroad v. Hare

Hart, J., (after stating the facts). Section 9, article 12, of the Constitution of 1874, 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,” etc. Section 2955 of Kirby’s Digest provides that where the determination of questions in controversy in condemnation proceedings is likely to retard the progress of the work the court, or judge in vacation, shall designate the amount of money to be deposited by such company, subject to the order of the court, and for the purpose of making such compensation, when the amount thereof shall have been assessed, and that the judge shall designate the place of such deposit. Section 2956 of Kirby’s Digest provides that when such deposits shall have -been made in compliance with the order of the court or judge, it shall be lawful for the railroad company to enter upon the land and proceed with its work. In construing this section of the Constitution and the section of the statutes above referred to, in the case of Reynolds v. Railway Company, 59 Ark. 171, the court said: “The Constitution and .statute are unambigous. 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 the 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.” In the case of Reynolds, Ex parte, 52 Ark. 330, the court, in regard to the section of the Constitution and sections of the statutes above referred to, said: “The requirement that a deposit of money shall be made to secure the payment of compensation to the land owner presupposes that the time is not ripe for payment, else no provision for security would he needed. ‘ ‘ It has been suggested that the clause means only a deposit of the assessment made by a jury in a condemnation proceeding as a provision for cases where the owner may refuse to accept the amount awarded as payment, or may be unknown, or not sui juris. It certainly covers these contingencies, and might easily have been restricted to them if it had been so intended. But the language employed does not restrict the meaning to such cases; it is general — compensation must be paid or secured in every case y and, pending proceedings to condemn, it is for the Legislature to determine when the deposit by way of security may be made.” See, also, Kansas City Southern Railway Company v. Boles, 88 Ark. 533. (1) Thus it will be seen that the preliminary deposit is made subject to the order of the court and remains on deposit las security to the1 land owner for the compensation that may be finally awarded him. On the final hearing of the case the award may be increased and so the preliminary deposit may be insufficient to meet the award, and it would be necessary for the railroad company to pay an additional amount. On the other hand, the final award may be for a smaller sum than the amount deposited, and in that event the court would order a return of the excess to the railroad company. So, also, as was the fact in the case of Reynolds v. Railway Company, supra, the railway company might abandon its proposed route before entering upon the land and before any damage was done to the land owner, in which event it could file a motion for leave to dismiss its condemnation proceeding, and the couit would order the amount of the preliminary deposit returned to it. (2) In the case before us the preliminary deposit of $2,000 was placed in a bank subject to the order of the circuit court, and none of the parties to the proceeding had a right to withdraw that deposit without an order of the court. The final judgment in the case provided that the amount deposited in the court should be paid over to the defendants or to such one or inore of them as should establish his or their right to receive the same. This judgment contemplated further action on the part of the court before the money should be turned over to any of the defendants. It is not contended now by counsel for the plaintiff that the amount recovered on the final hearing of the cause was too small. On the other hand, it is conceded that the proof shows that that amount was the full value which should have been recovered as compensation for the land taken and damage done by the railway company. The only contention made by counsel for the plaintiff is that the railroad company should have paid the money to the legal guardian of Ella Hare. It will be noted, however, that the railroad company did not pay the money to any of the defendants, and as far as the record discloses, it had nothing whatever to do' with the money being paid by the bank to Matt Grey as administrator of the estate of Mary Hare, who was the mother of Ella Hare. (3) As we have already seen, the final judgment of the court contemplated that further proceedings should be had before the money deposited should be paid to any one. Matt Grey, as administrator of the estate of Mary Hare, deceased, drew a check on the bank in favor of himself for the amount of the preliminary deposit and that was paid to him. So far as the record shows, this was without the consent of the railroad company, -and without any action on its part in that behalf. The -amount so deposited was placed in the bank subject to the orders of the circuit court as security to the land owner for whatever sum might finally be awarded -him as compensation for the land appropriated by the railroad comp'any for its right-of-way. The railroad company had no further control over the money, and, having taken no part whatever in transferring the funds from the bank to Matt Grey, it is not liable to the plaintiff, Ella Hare, therefor. A different question arises as to the $1,000. That amount of money was paid by the railroad to Matt Grey. It follows from our decision on tbe former appeal that he was not entitled to receive it, and that it should have been paid to the guardian of Ella Hare. It also follows that the judgment of the circuit court will be modified, and the cause of action of the plaintiff for the $2,000, the amount of the preliminary deposit, will be dismissed here; and the judgment of the circuit court for $1,000 arid interest will be affirmed.