41 So. 259 | Miss. | 1906
delivered the opinion of the court.
The former opinion in this case expressly held that the consolidation was conditioned upon broadening and standardizing the then existing narrow-gauge railroad, and making it a part of the main line of railroad operated by the consolidated corporation. Whether the statements in the petition for consolidation “that the railroads were in no way parallel and competing,” were “jurisdictional facts upon the existence of which depended the power of the corporation to consolidate,” we
Annotated Code 1892, § 3587, requires the consent of the railroad commission to a consolidation, and, as held in the former opinion, Laws 1898, ch. 80, p. 95, forbids the consolidation; of parallel or competing railroads, and permitted the consolidation of other railroads only with the approval of the railroad commission. The appellants recognized this law as1 binding, and consequently, in their petition, stated that the railroads were “in no way parallel or competing lines,” and expressly pledged themselves to broaden and standardize the then existing narrow-gauge railroad, and to make it a part of the main line operated by the consolidated corporation. It is nothing short of inequitable on the part of appellant, having gotten the consent of the railroad commission to consolidate upon these express conditions, to violate the conditions, and refuse to broaden and standardize the entire narrow-gauge road,
We have nothing to say in this opinion about the depot or its location. On that point the court said before: “Where its new depot shall be located, in what portion of the town, is not a matter involved in this litigation, and is a question for future discussion between the appellees and the railroad commission.” This .declaration expressly took out of this case any consideration of the location of the depot. We have nothing- to do with that matter. We deal alone with the obligation, voluntarily entered into by the appellants with the railroad commission, that, if they should be permitted to consolidate, they would broaden and standardize the then existing narrow-gauge railroad and make it a part of their main line; and that, and that only, is the core of this contention, and that, and that precisely, is what we deal with, and decide in this case, to wit, that these appellants are bound by their solemn obligation, deliberately entered into, as stated above, to. broaden and standardize the narrow-gaue railroad and to make it a part of the main line. The depot is a matter with which we have no concern.
One or two other precautionary observations we make. The former opinion expressly waived any consideration as to “what are the subsisting legal rights and obligations arising under the alleged written contract as to the original location of the depot”; and we now further expressly decline to render any
Nor do we desire to be understood as holding that the case of Lusby v. Railroad, 73 Miss., 364 (s.c., 19 South. Rep., 239; 36 L. R. A., 510), prohibits a railroad company, which has once located its line, from making any slight change in its line imperatively demanded by the necessities of the situation, provided that change can be accomplished without calling into exercise, for the second time, the state’s power of eminent domain. 3 Elliott on Railroads, 930. Assuredly a railroad can make such change, if it can by private agreement with landowners acquire the change in the right of way necessarily demanded by the situation. We make this as a cautionary 'observation only, as we do not think the Lusby case has any bearing whatever upon the point upon which this case must turn. Nor do we think the contention of learned counsel for appellant that section 8 of the original charter of the Ripley Railroad Company, in Acts 1871, ch. 80, p. 275, to the effect that that company might exercise the power of eminent domain just as in its original 'location “for the purpose of making such railroad or repairing or changing it afterwards,” at all effects the duty of these appellants, under their solemn agreement above set forth, according to the conditions on which the right to consolidate was granted, to broaden and standardize the said narrow-gauge railroad in its entire length, and make it a part of their main line of railroad. They did not stand in the court
In view of the various interests here involved, we direct the appellants to operate the spur track as soon as completed, connecting the main line on the north with the town of Pontotoc, broadening and standardizing it, the said spur track, and making it part of the appellants’ main line, and that appellants shall have six months from the date of this decree within which to make it part of the main line; the supersedeas meantime to remain in force.
With these modifications the decree is affironed.