Alabama & V. Ry. Co. v. Jackson & E. Ry. Co.

Holden, J., delivered the opinion of .the court. The case is here for the second time, it having been considered and decided by Division B of this court in April, 1923, reported in 131 Miss. 857, 95 So. 733, wherein this court reversed the judgment of the lower court and remanded the cause for a further hearing by the chancellor on the question of fact as to whether or not the proposed connection between the railroads could be reasonably made. For a full statement of the facts and the law of the case, reference is now made to the former decision of this court. . The suit is one to enjoin the Jackson & Eastern Bail-way Company from exercising the right of eminent domain to condemn an easement over the right of way of the Alabama & Vicksburg Bailway, for connection purposes at Curran’s Crossing in Pearl river valley (or swamp), near the eastern suburbs of the city of Jackson, and immediately east of Pearl river. The Jackson & Eastern Bailway Company sought the connection with the Alabama & Vicksburg Bailway Company under the light given it by section 184, State Constitution of 1890, and section 4096, Code of 1906 (Hemingway’s Code, section 6725'), which provide in substance that every railroad company shall have the right to intersect and connect with any other railroad at any point on their routes, and that eminent domain may be exercised for this purpose. The application for the condemnation of an easement for connection purposes by the appellee, Jackson & Eastern Bailway Company, was enj'oined upon several grounds, and, on a hearing to dissolve, the demurrer of the defendant to the injunction bill was sustained, and an — 734 — appeal was taken to this court,, which resulted in a reversal and the cause was sent back for a hearing-upon one question only, which we shall deal with more fully and specifically later on. Therefore, the law of the case was settled by the former decision, and nothing is -left on the present appeal except to follow the law as announced and ascertain the correctness of the decree of the lower court under it, on the appeal now before us. All of the -questions of law now presented were involved in the former appeal and were passed upon by the court adversely to the appellant, except one point upon which it reversed the decree and remanded the cause for further hearing, on the question of fact with reference to the reasonableness of the proposed connection. The bill alleged “that the place where.the condemnation is sought to be made fop the connection is improper and unsafe and dangerous for a point of junction of two railroads.” That the connection would be dangerous to the public,, and to the employees, and to the two railroads, on account of the connection being in the swamp on a trestle where the P'earl river overflows occasionally, and that the connection sought would have to be made by intersecting at a reverse curve in the main track of the appellant, Alabama & Vicksburg Railroad. And many other reasons are urged as showing that the connection at Curran’s Crossing would be unreasonable, unduly dangerous, and detrimental to the general public, the railroads, and the railroad employees. On the former appeal this court in reversing the decree of the chancellor sustaining the demurrer to the bill, held that the chancellor was in error in his view that the connection sought might be made at any point and under any circumstances.; and the court said: “However, we think the chancellor was in error in sustaining a demurrer to the bill for injunction. The right to make a physical connection by one railroad with that of another must be reasonably exercised. In other words, — 735 — the point of junction must be selected with due care with reference to the interest and. welfare of both railroads, and with reasonable consideration for the safety and other rights of the general public, as well as of the two railroad companies.” Upon a remand of the case, the chancellor proceeded to hear testimony at* great length for both sides to determine the question, as directed by the opinion, as to whether or not the proposed connection at the point selected was reasonable with reference to the interest and welfare of both railroads, “and was with reasonable consideration for the safety and other rights of the general public, as well as the two railroad companies,” and whether the connection sought would be “unduly endangering the public safety or the rights or interest of the other railroad company, considered with reference to the feasibility of the proper junction at a more reasonable point, having due regard to the circumstances, the interest of the two railroads, and that of the general public,” Many witnesses testified for the appellant, Alabama & Vicksburg Eailway Company, and their testimony went to establish the fact that the proposed connection would. be unreasonable, improper, unduly dangerous to all concerned, and detrimental to both railroads, their employees, and the general public; and that a more reasonable connection could be made at a point a short distance farther east on the main line of the appellant, Alabama & - Vicksburg Eailway. Nothing would be gained by setting out in detail the testimony offered by the appellant on the question of fact presented, but it is sufficient to say that it was strong proof against the reasonableness and safety of the connection at the proposed point. The appellee, Jackson & Eastern Eailroad Company, offered many witnesses who testified positively that the proposed connection was reasonably safe, proper, and not unduly dangerous, and would not be injurious to the railroads, the employees, nor the general public interest. — 736 — These witnesses, if believed, established the fact by their testimony that the proposed connection was reasonable and entirely proper. Their testimony appears to be clear and positive on the subject. The chancellor also personally visited the scene of the proposed connection, and examined the physical conditions, and observed the circumstances and general situation there. This information received by the chancellor,. as trier of fact, we assume was of considerable value as an aid to him in determining the truth from the conflicting testimony of the witnesses on the opposite sides of the case; and the chancellor1 found the fact to be that the connection sought was reasonable and proper, and dissolved the injunction, from which decree the Alabama & Vicksburg Railway Company now appeals, and. appellee cross-appeals. Under the law of- the case, all that was left to be tried by the lower court on the new trial was the question of fact as to the reasonableness, etc., of the proposed connection; therefore the point for our decision on the pres-_ ent appeal,, is whether or not the finding of fact by the chancellor is manifestly wrong and should be reversed. We have examined the testimony offered by the opposing parties, and, after a careful and lengthy consideration of it, we are convinced the finding by the chancellor was amply supported by the proof, and we see no reason for a reversal of the finding of fact on the question directed by the former opinion to be inquired into by the lower court. It is ably urged by the appellant that a. more reasonable and.better connection could be made at other points on its line, or that the appellee should construct its road across Pearl river into Jackson and connect in that way with the appellant railroad. But we disagree with this contention for the reason that under the law, and as said |)y this court on the former appeal: f‘We think it certainly could not be that any railroad — 737 — company can alone select a place of junction,, regardless of circumstances or conditions. It has the right to intersect such railroad or cross it, whenever the conditions are such that it may do so without endangering unduly the public safety or the rights or. interest of the other railroad company, considered with reference to the feasibility of the proper junction at a m,ore reasonable point, having due regard' to the circumstances, the interests of the two railroads, and that of the general public. ’ ’ Therefore it follows that the railroad seeking the connection may exercise the right to connect at any1 point on the other railroad, so long as the proposed junction is reasonably safe and proper.' And the chancellor having decided that question of fact in favor of the proposed connection, the connection of the appellant in this regard is without merit. Another question presented now, which was also in the former appeal, though not discussed in that .opinion, is that the injunction should have been sustained, because the application for the condemnation of the right of way of the appellant, sought to condemn the ownership or fee in the strip of land of appellant’s main line for the proposed connection purposes, whereas the law permits only the condemnation of an easement for a. connection. We have examined and considered the language used in the application for the condemnation,, and. while the words “own, occupy, and use said strip of land, rights, privileges, and easements above described” would seem to indicate that it was an attempt to condemn the ownership in the strip of land to be used for connecting purposes, instead of the condemnation of an easement thereof, yet we think that, taking the application as a whole, the language should be construed to mean that only an easement is sought to be condemned. Under the law an easement is all that could be secured by the condemnation proceedings; and we think that was ail that was intended to be condemned, and the judgment — 738 — of condemnation must necessarily be limited to the acquirement only of an easement for the proposed connection. Therefore we hold that the application, when properly construed, seeks only an easement which the appellee, Jackson & Eastern Bailway Company, is entitled to under the law. The other questions in the case which deserve notice were passed upon in the former decision, and we shall not undertake to again review them. It is argued by counsel for the appellant that the president and owner of the Jackson & Eastern Bailway Company, Mr. Neville, candidly states that he expects to connect with the Alabama &i Vicksburg Bailway at the point proposed and to endeavor to secure the use of the Alabama & Vicksburg track and bridge to cross over into the city of Jackson, instead of building his own bridge across the river and that he intends to construct his railroad terminal at the point of connection in the Pearl river swamp, and that he would be financially unable to- build into Jackson by bridging Pearl river, and expects to avoid doing so by obtaining, at some time in the future, the right to use the Alabama & Vicksburg track into the city of Jackson. It is contended, as we understand it, that these future in: tentions, desires, and purposes of the Jackson & Eastern ' Bailroad go to establish the fact that the proposed connection .is unreasonable, and that the Jackson & Eastern Bailway Company should be compelled to build its own line into Jackson, and that the question of financial ability, as decided by some of the courts, is not to- be considered as a good reason- for not building its own line-across the river into the city,, and that the connection in that way is the reasonable and proper one, instead of at Curran’s Crossing. But we- do' not think the argument is sound because the, connecting railroad has the right under the law to make its connection at whatever point,on the other railroad that it desired, and it is not for the other railroad — 739 — to dictate the point of connection, provided that such connection is reasonable and safe, etc. Therefore the appellee has the right to connect at Curran’s Crossing, instead of being compelled to run its line to another point for connection. What Mr. Neville contemplates doing in the distant future with reference to his. connections and facilities to get into Jackson is not involved here. The decree of the lower court is affirmed, on direct and cross appeal. Affirmed.