52 F. 627 | U.S. Circuit Court for the District of Western Arkansas | 1892
The first question is: Did the St. Louis & San Francisco Railroad Company, at the time this property was condemned, have a right to take property by condemnation proceedings, it being a railroad corporation residing in Missouri? Section 11, art. 12, of the state constitution, provides that no foreign corporation shall “have power to condemn or appropriate property.” This means that a corporation which is not a domestic one cannot use the power of eminent domain to acquire property for its uses; that a railroad company which does not become domesticated cannot use the right of eminent domain to acquire necessary real estate for its right of way, depot grounds, machine shops, etc. The St. Louis & San Francisco Railroad Company was, at the time of the condemnation proceedings, a foreign corporation, the same being chartered by the state of Missouri; but by the laws of the state of Arkansas (Sess. Acts, approved March 16, 1881, § 5) the St. Louis & San Francisco Railroad Company had a right to come into the state upon certain conditions. A part of said section 5 of said act is as follows:
“Any railroad company incorporated by or under the laws of any other state, and having a line of railroad built or partly built to or near any boundary of this state, and desiring to continue its line of railroad into or .through this state, or any branch thereof, may, for the purpose of acquiring the right to build its line of railroad, lease or purchase the property, rights, privileges, lands, tenements, immunities, and franchises of any railroad company organized under the laws of this state, which said lease or purchase shall carry with it the right of eminent domain held and acquired by said company at the time of lease or sale, and thereafter hold, use, maintain, build, construct, own, and operate the said railroad so leased or purchased as fully arid to the same extent as the company organized under the laws of this state might or could have done; and the rights and powers of such company, and its corporate name, may be held and used by such foreign railroad company as will best subserve its purpose, and the building of said line of railroad. * * *”
We find the facts to be that in September, 1880, a railroad company, called the Missouri, Arkansas & Southern Railroad Company, was incorporated under the laws of Arkansas for the purpose of constructing a railroad from a junction with the St. Louis, Arkansas & Texas Railroad Company, organized under the laws of the state of Arkansas, at Fayetteville, Ark., through a portion of the counties of Washington, Crawford, and Sebastian, to a junction with the Little Rock & Ft. Smith Railway
We are here brought face to face with the question whether Mrs. Foltz, a married woman, holding the property in her own right as her separate property, after she has taken part in the condemnation proceedings instituted by plaintiff, which was legally in the state to do business, but not a citizen thereof, and therefore, under the constitution, having no right to condemn property for its uses, and after she has taken the money found by the jury to be the value of the land, and keeps the same, is prevented by an estoppel in pais from recovering the laud in controversy. To the lay mind, controlled by a sense of justice and right, it would look as though she ought not to have both money and land. She has had the use of the $4,180.84 for six years, seven months, and five days, up to the time she brought her suit; and this use, at 10 per cent., would be worth $2,758.29. It does not look hardly right that she should have this money, the interest on the same, and the land as well. Still, if the law gives it to her, it is right she should have it. The railroad company, being rightfully in the state, could make an agreement with Mrs. Foltz, or any one else, for a right of way; for although the law may prohibit a party from acquiring a right, yet, if not against public policy or immoral to do the act conferring the right, the same may be acquired by agreement with a citizen. There is nothing in the constitutional provision prohibiting a nonresident railroad company from agreeing with citizens of a state, when it is rightfully in the state to do business, for a right of way. If Mrs. Foltz could agree with the company fora right of way, could she, as a married woman, do that which amounts to an implied agreement? While under the common-law disability of coverture, I do not think she could waive the constitutional provision, which, in effect, is one in her favor. But her common-law disability of coverture has been removed by article 9, § 7, of the constitution of the state, which is that “the real and personal property of a feme covert in this state, acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be .and re
“Under the various statutes removing the common-law disabilities from married women, corresponding liabilities have necessarily been imposed on them. They take the civil rights and privileges conferred subject to all the incidental and correlative burdens and obligations, and their rights and obligations are to be determined by the same rules of law and evidence by which the rights and obligations of the other sex are to be determined under like circumstances. To the extent and in the matter of business in which they are by law permitted to engage, they owe the same duty to those with whom they deal, and to the public, and may be bound in the same manner, as if they were unmarried. Their common-law incapacity cannot serve as a shield to protect them from the consequences of their acts when they have statutory capacity to act. A married woman is sui juris to the extent of the enlarged capacity to act conferred by statute, and may be estopped by her acts and declarations, and is subject to all the presumptions which the law indulges against others with full capacity to act for themselves.”
The above doctrine is fully sustained by Dr. Pomeroy’s Equity Jurisprudence, section 814, which says:
“Upon the question how far the doctrine of equitable estoppel by contract applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enforcement of the estoppel against married women as against persons sui juris, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. ”
In Dobbin v. Cordiner, 41 Minn. 165, 42 N. W. Rep. 870, the supreme court of Minnesota said:
“Married women cannot enjoy their enlarged rights of action and of property and remain irresponsible for the ordinary legal and equitable results of their conduct. Incident to this power of married women to deal with others is the capacity to be bound and to be estopped by their conduct, when the enforcement of the principle of estoppel is necessary for the protection of those with whom they deal. * * *”
I take it that it is a true principle that Mrs. Foltz could have made a contract with the railroad company to sell them the land she held in her own right. If she could make such a contract, then she may, by her
It is claimed in this case that the railroad company has lost its right
“Mere nonuser of an easement like the one in question, though continued for more than 20 years, will not extinguish it. The owner of an easement may abandon it, but mere nonuser does not show an abandonment. To effect this the nonuser mu3t originate in or be accompanied by some decided and unequivocal acts of the owner inconsistent with the continued existence of the easement, and showing an intention on his part to abandon it.”
. There may have been a nonuser of the part of the land in controversy for the time the railroad company has had it, but that does not of itself amount to. an abandonment of the land. There must be other evidence of an intention to abandon it. Johnston v. Hyde, 33 N. J. Eq. 642.
I think that the injunction should be made perpetual to restrain Mrs. Foltz from proceeding with her action of ejectment for the recovery of the lands in controversy, and it is so decreed.
21 Pac. Rep. 565.