Mansfield, J., (after stating the facts). It is conceded that, the defendant having appropriated the lots in controversy to general railroad purposes by occupying them with its main track and side tracks, the plaintiff could not have maintained ejectment to recover them; and that this action was simply to recover their value. Such being the nature of the case, it is urged that the plaintiffs could only proceed as upon a complaint in equity to enforce a vendor’s lien; and this, it is said, is the doctrine of Organ v. Railway Co. 51 Ark. 265. But that decision, while it upholds the right to relief in equity on the facts there presented, does not limit the land-owner to an equitable remedy in all cases where his property is taken without statutory proceedings and without compensation ; and the opinion of the court does not undertake to say that such compensation might not, in some cases, be the subject of a recovery at law. The. following extract from the opinion referred to will indicate that the rule stated was not confined to equitable proceedings :
“The right,” said the court, to property taken by a railroad company “can only be acquired by the company by purchase, by adverse possession for the statutory period, or by statutory proceedings for the assessment of damages. The company can only acquire it through the right of eminent domain by making just compensation. Until then, it remains in the original ■ owner. The power to take, and the obligation to indemnify for the taking, are inseparable. But the owner may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the land under the right of eminent domain, and demand and recover just compensation.” Among the cases cited by the opinion in this connection is one in which the Supreme Court of Kansas sustained the right of a land-owner to recover, in an ordinary action, compensation for damages suffered by the wrongful appropriation of his land by a railroad company. Cohen v. St. Louis, etc. R. Co. 34 Kas. 158. But the question as to whether the remedy should be equitable is not raised on this record. The defendant made no motion to transfer the cause to the equity docket, and is not therefore in a situation to complain that it was tried at law. Without regard to the form of the proceeding, the plaintiffs, if they were entitled to' recover at all, were entitled to a judgment for the value of the land ; and this could have been so framed as to vest title to the property in the company.
Although much of the argument of counsel on both sides is devoted to a construction of the condition of the grant to the defendant, neither of the parties appear to have insisted at the trial upon any interpretation different from that found in the court’s charge. No part of the charge was objected to by the plaintiffs, and the defendant’s request is not materially different from the court’s third instruction, as to the effect of the condition. The objection made to the fourth instruction has not been insisted upon, and the only questions to be decided, are, (1) whether it was error to submit to the jury the question of reasonable time, and (2) whether the evidence is sufficient to support the verdict.
i. .when timeaquestion for jury-
Bxcept with reference to some particular classes of cases, the authorities do not lay down any general rule J J ° for determining when the question of reasonable time is for the court, and when it is for the jury. It is always for the court, it seems, when it may be decided by applying some positive rule of law or by the construction of a written instrument. In other cases, whether the question is one that may be resolved without the aid of a jury depends upon the circumstances out of which it arises. Derosia v. Railroad Co. 18 Minn. 133-143; 19 Am. & Eng. Enc. 640-641, note 4, 642, note 2; Starkie’s Ev. 774; Mayor v. East Tenn. etc. R. Co. 9 S. E. Rep. 1129. The time may be “so short or so long that the -court will declare it to be reasonable or unreasonable as matter of law.” Johnson v. Agricultural Co. 20 Mo. App. 100; Lancaster Bank v. Woodward, 18 Pa. St. 362. .But where the time falls between these extremes, or the motives of a- party are involved, or where the facts are not clearly established, or are such that men of equal •intelligence might draw from them different conclusions, in such cases what constitutes a reasonable time is a ■question to be answered by a jury. Lamb v. C. & A. R. R. and Trans. Co. 2 Daly, 473; Hill v. Hobart, 16 Me. 164; Druse v. Wheeler, 26 Mich. 189; Lancaster Bank v. Woodward, 18 Pa. St. 162.
Leaving out of view for the present the question made here as to the sufficiency of the evidence to establish the plaintiff’s cause of action, we think the court ■did not err in treating this case as one which it was not improper to submit to a jury, and the defendant’s request was therefore properly denied.
But although the reasonable time to be arrived at was not one that could be defined and limited by the mere application of a legal principle', and was therefore ■one to be drawn, in a general sense, as a conclusion of fact from the evidence, it was so nearly a conclusion of law that a just solution of the question would no doubt have been facilitated by a special finding of facts. A special finding was not, however, requested, and we discover no objection to the charge under which the general verdict was returned.
held ifoYto1106 sustain a forfeiture.
Whether the verdict rests upon evidence legally suf- ~ . . . . . . 1 . . . ficient to support it, is a more embarrassing* question,
In returning whether “ in point of fact ” the time during which the depot was maintained upon the lots was a reasonable time, within the meaning of the court’s charge, the jury were not at liberty to act upon a mere opinion of their own that it was unreasonable ; but it was for them to say whether the time was reasonable in the sense that it gave the plaintiffs “ full opportunity ” to substantially realize the benefits they at the time of the ■donation ‘ ‘ reasonably expected to accrue to them from the location of the depot.” And the issue was such that the plaintiffs were not entitled to a verdict unless they had ■shown, by a preponderance of the evidence, that the time was not, in the sense suggested, reasonable. Their cause of action was grounded upon the alleged fact that the lots had reverted to them; and this reversion they could only prove by showing that the depot had not remained upon the lots for such length of time as amounted to a performance of the condition on which the property was granted. That the proposition on which they relied might be stated in a negative form, namely, that the time was not reasonable, did not relieve them of the burden of proof1 . With more propriety their proposition can be said to be the affirmative one—that the defendant’s right to the lot has been forfeited ; and this they were required to sustain by showing that a greater time was essential to a fulfillment of-the condition subsequent. Unless a forfeiture had occurred, the plaintiffs did not own the depot lots, and, if they did not own them, they had no right to recover their value. Now, it seems to us that the plaintiffs did not make a frima facie case by merely proving that the railway company,'after occupying- the land donated, in the manner required by the grant, for eleven years, had removed the depot from them, and that this removal had rendered the two adjacent lots less valuable for hotel purposes; and yet these facts appear to be subsantially all that the jury could have found, favorable to the cause of the plaintiffs, from the evidence set forth in the abstracts of the record. From these facts, standing alone, it does not result, as a conclusion of law, that the time during which the depot was maintained at its original location was not a reasonable one; for, notwithstanding such facts, it may have been true that all the enhancement of value reasonably anticipated to lots one and two for hotel purposes might have been realized long before the change of location, or may have been received by the plaintiffs on the sale of the property to Belt. It is not shown that lots one and two had any peculiar advantages as a site for a hotel over other lots in the same vicinity, or that they were ever improved or used for that purpose, or were likely to be at the time the depot was removed; and from all the circumstances of the case it is reasonable to suppose that any influence exerted on the value of the lots for hotel purposes by the mere presence of the depot may have been fully developed before they were sold. And if that influence had reached its maximum before the removal of the depot, it does not aid the plaintiffs’ case to show that the removal depreciated the value of the lots, or that they were sold in anticipation of such depreciation, for it still may be true that eleven years had afforded the opportunity for enjoying all the benefits originally expected.
The evidence shows that Fort Smith nearly or quite doubled its population between the date of the depot’s first establishment and the month of September following its removal to a new location. Eleven years, falling within this era of the city’s growth, would seem to be a sufficient period in which to obtain all the benefits constituting the inducement to the plaintiffs’ donation. 2It was a period during which the business of the city moved away from the vicinity of lots one and two, and if there was anything peculiar in the situation of that property, making a longer time necessary to the enjoyment of all the advantages, or benefits, contemplated by the condition of the grant, as construed by the court, it was incumbent upon the plaintiffs to show it.
As the evidence on the part of the plaintiff is, in our opinion, entirely consistent with the proposition that the time in question was in fact reasonable, we cannot hold it sufficient to sustain the verdict.
The judgment is therefore reversed, and the cause remanded for a new trial.
Judge Hughes did not participate.
Wood, J., dissents. . See also Luckhart v. Ogden, 30 Cal. 547.
. Starkie’s Ev. 774; Luckhart v. Ogden, 30 Cal. 560.
. 1 Whart. Ev. 3S6-3S7; Goodwin v. Smith, 72 Ind. 114.
. Jeffersonville, etc. Railway v. Barbour, 89 Ind. 378; Texas, etc. R. Co. v. Marshall, 136 U. S. 393; Close v. Railway Co. 17 Am. & Eng. R. Cases, 35.
. Railway Co. v. Henderson, 57 Ark. 402; Catlett v. Railway Co. 57 Ark. 461.