McKennon v. St. Louis, Iron Mountain & Southern Railway Co. , 69 Ark. 104 ( 1901 )

Hughes, <T.,

(after stating the facts.) It seems that the ap-pellee, the railroad company, without seeking to purchase or have the land in controversy condemned for the purpose of enlarging its right of way, wrongfully, and without pursuing the method prescribed by the statute to obtain this land as an addition to its right of -way, entered upon it, and enclosed it with a fence, and .thus appropriated it to the use of the railroad company as a part of its right of way. The appellant might have prevented this action, upon the part of the railroad by suing out an injunction, as the law provides that “private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor made.” Sec. 22, art. 2, of the Constitution of 1874. Organ v. M. & L. R. R. Co. 57 Ark. 255. The statute provides (subdivision 3, section 6175, Sandels & Hill’s Digest) that the railroad company shall have power “to purchase, and by voluntary grants and donations receive and take, and by its officers, engineers, surveyors and agents enter upon and take possession of and hold and use, such lands and real estate and other property as may be necessary for the construction and maintenance of its roadbed and stations and other accommodations necessary to accomplish the object for which the corporation is created; but not until the compensation to be made therefor, as agreed upon by the parties, or ascertained as hereinafter provided, be paid to the owner or owners thereof, or deposited as hereinafter directed, unless the consent of such owner be given to enter into possession.” It is not contended that the statute was complied with. But if the railroad had taken and appropriated what it needed for its right of way, within the limits of the statute fixing the right of way at six rods (subdivision 4, section 6175, Sandels & Hill’s Digest) could ejectment be maintained for the land taken and appropriated to use for its right of way ? We think the question is settled by the statute. Section 2734 (act approved April 11, 1893) : “Whenever any corporation authorized by law to appropriate private property for its use shall have entered upon and appropriated any property, real or personal, the owner of such property shall have the right to bring an action against such corporation in the circuit court of the county in which said property is situated for damages for such appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statutes of limitations.” We understand that when property is taken by a railroad company within the limits of its right of way as defined by the statute, and appropriated for its use and its right of way, it becomes such, and cannot be recovered in ejectment, though the owner may recover damages under the above statute; and the remedy provided by the statute is exclusive. Cairo & Fulton Railroad Co. v Turner, 31 Ark. 494. This property was fenced as part of the right of way of the railroad 10th of June, 1893, and this suit was brought the 8th of August, 1898. So it seems that between these dates, a period of over 5 years, no action was taken to restrain the railroad company from the use of this land, which they had appropriated for their right of way.

Whether this land so taken and appropriated by the company was necessary to the proper use and operation of their road was a matter to be determined by the company, as we understand— within the limits of the right of way, six rods wide, as defined by the statute. Croley v. St. L. & S. W. Ry. Co., 56 S. W. Rep. 615; Railway Co. v. Petty, 57 Ark. 359.

We think the above quoted section of the statute (2734), in connection with sections 2735 and 2736, pretty clearly shows that in such a ease as this the remedy.of the appellee is a suit for damages, and not ejectment for the land. Section 2735 is as follows: “The measure of recovery in such action shall be the same as that governing proceedings by corporations for the condemnation of property.” Section 2736. “Proceedings instituted under this act shall be governed by the rules of pleading and practice prescribed for the government of proceedings in the circuit court. The defendant shall have the right to bring in all parties having or claiming an interest in the property in controversy, and the court shall make the proper orders of the distribution of the compensation recovered in the action among such parties as may be entitled thereto, and shall include in the judgment in said proceedings an order condemning said property for the public use to which it may have been appropriated.” But it appears in this case that the railroad company took one foot over six rods of the land they enclosed and appropriated. This was one foot more than they were authorized by the statute to take, the width of their right of way being defined'by the statute as six rods, or ninety-nine feet.

For this reason the judgment in this case is reversed, and the cause is remanded for further proceedings.

Battle, J., dissents.