101 So. 553 | Miss. | 1924
Lead Opinion
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
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,
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.
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
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
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
The decree of the lower court is affirmed, on direct and cross appeal.
Affirmed.
Dissenting Opinion
(dissenting).
I am unable to agree with the majority of the court in this case. When the case was before this, court on the other appeal the court declared as part of the law of the case that the junction between the two> railroads had to be made with regard to the interests of both railroads, as well as the public interests, and also with reference to its reasonableness and feasibility. A. & V. Ry. Co. v. J. & E. Ry. Co., 131 Miss. 857, 95 So. 733.
As I view the uncontradicted evidence in this case, only one. reasonable conclusion can be drawn therefrom,, and that is, the proposed junction between these two railroads is not reasonable nor feasible, and is against the public interest as well as the just' interests of the railroads. In considering whether the proposed junction ought to be made it should be compared to any other junction or junctions which the evidence shows might be made. And if there appears to be another junction that could be made which would be more feasible and much more to the public interest and to the interests of the two railroads, then surely the proposed junction would come under the condemnation of the law of this case as laid down on the former appeal.
The evidence shows without conflict, that the proposed junction at Curran’s Crossing will be a longitudinal con
" The evidence given by Mr. Neville, the president of the Jackson &¡ Eastern Railway Company, shows that although his company got a permit from the Interstate Commerce Commission to build its line of road in a westerly direction “to the city of Jacksqn,” his company has no purpose of building further than this, junction with the Alabama & Vicksburg Railway Company, that it has no purpose whatever of' going into the city of Jackson over its own bridge and tracks. But the hope of his company is that sooner or later, by some sort of arrangement with the Alabama &■ Vicksburg Railway Company, his company will get into Jackson and there connect with the other railroad lines coming* into. Jackson, and this was the main purpose of. his company in'making Jackson the western terminus of its line of railroad. Mr. Neville admitted in his evidence in effect that, if his company were able financially to gn into the city of Jackson over its own tracks and bridge across Pearl river, and there connect with the other lines of railroad entering the city of Jackson, the public interest as well as the interests of the two railroads would be better served. He frankly admitted that, instead of doing that, Curran’s Crossing was selected by his company as a junction as a matter of economy to his company.
The law is, as I understand it, that in considering the public interest, .as well as that of the two railroads, the matter of economy will not control. The predominant consideration will be the feasibility of the junction in con
The bill of the Alabama & Vicksburg Railway Company ought to- have been sustained in my judgment on another ground, and that is that the eminent domain application of the Jackson & Eastern Railway Company failed to sufficiently describe the right or easement it sought to condemn. It is unquestioned that the Jackson & Eastern Railway Company has- no right under the statute to condemn the fee in the tracks and right of way of the Alabama & Vicksburg Railway Company for the junction. Where a lesser interest than the fee in land is sought to be appropriated in a condemnation proceeding, the lesser interest must be defined with such certainty as to apprise the owner of the nature and extent of the interest which-is to be taken, and also with such certainty as to enable the jury to intelligently and according to law assess the compensation to be paid for the interest taken. Pontiac Improvement Co. v. Board of Commissioners, 104 Ohio St. 447, 135 N. E. 635, 23 A. L. R. 866. Certainly the pro
