59 Ark. 66 | Ark. | 1894
(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
“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.
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
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'
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 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.
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.
. See Reichert v. St. L. & S. Fr. Ry. 51 Ark. 491.
. See also Luckhart v. Ogden, 30 Cal. 547.
. Starkie’s Ev. 776, 774, and note s.
. Ib. See also Mansf. Dig. secs. 5142, 5143.
. 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.