86 Ark. 309 | Ark. | 1908
(after stating the facts).
The evidence shows that appellee made the contract in question with the White River Railway Company in September, 1901, and that appellant became the owner of said railroad by purchase in March, 1903.
Section 6587 of Kirby’s Digest provides that whenever any railroad company shall purchase any railroad from any other railroad company, it shall take and hold the same subject to all the debts, liabilities and obligations of the company from which said road was purchased. Section 6588 provides that all persons having claims against the purchasing company shall present the same to it within twelve months after receiving notice from the purchasing company of the sale. The complaint in this case states that appellant refused to perform the contract made by appellee and the White River Railway Company. It is not necessary to decide here whether the notice required to' be given by section 6588 must be actual or constructive; for appellee testified that he did not have actual notice of the sale, and the record does not disclose whether or not appellant complied with the statutes in regard to constructive notice by filing a duly attested copy of the deed and confirmation of the sale of the railroad with the Secretary of State. Hence the present case stands as if appellee did not have any notice of the sale, either actual or constructive, and the action is not barred by the one-year statute of limitations prescribed by section 6588.
Was it barred by the three-year statute? The burden of proof'is upon a defendant who pleads the statute of limitations. Calhoun v. Moore, 79 Ark. 109. The record does not disclose the precise time when the railroad was completed through appellee’s land, but it was sometime during the year 1903. It is not to be presumed in any event that the railroad company would construct its depots in advance of the completion of the track of its line of railroad.
Berry had -a right to depend on the railroad company to perform: its contract until it repudiated it, or until it became apparent that the railroad company did not intend to execute it within a reasonable time. Therefore the action was not barred by the three-year statute of limitations.
In the case of Arkansas Central Railroad Co. v. Smith, 71 Ark. 189, the court said: “The term ‘depot’ usually includes not only the idea of stopping place, but also that of a building or something of the kind for protection and convenience of passengers and freight.”
A box car is not a building. The latter implies a permanent structure, and not. a part of the rolling stock of the company, which may me moved at will along the line of the railroad. We think that the word “depot,” as used in the deed, was intended to mean a permanent structure of some kind to be used as a receptacle for freight and passengers, and was to be of the kind the railway company erected at similar stations along its line of railway.
Moreover, this consideration was recited in the deed, and 'this court has repeatedly held that the improper admission of evidence is not prejudicial if the fact it tended to prove was otherwise established by undisputed evidence. Pace v. Crandell, 74 Ark. 417; Waters-Pierce Oil Co. v. Burrows, 77 Ark. 74; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588; Maxey v. State, 76 Ark. 276; Meisenheimer v. State, 73 Ark. 407.
Appellant also urges that its right-of-way agents had no authority to contract for the erection of depots. The railway company accepted the deed with a clause in it providing for the erection of a depot on the land, and thereby ratified the acts of its agent.
This was the measure of damages allowed ia the case of Arkansas Central Rd. Co. v. Smith, 71 Ark. 189, and the same rule is announced in the case of Rockford, etc., Rd. Co. v. Beckemeier, 72 Ill. 267, where it was said that any supposed damage to the farm on account of the failure to build the depot, growing out of anticipated increased value, is too remote to be considered a necessary consequence of the failure to build the depot.
This view is not in conflict with the elements of damage allowed in the case of St. Louis & N. A. Rd. Co. v. Crandell, 75 Ark. 89.
The Crandell case was a suit for damages by reason of removing a passenger station which had already been established and maintained for more than one year. The depot had been located on the land of Mrs. Murray pursuant to a contract between Crandell and the railroad company. Crandell had paid, Mrs. Murray the value of the right-of-way across her land. He was allowed to recover this, and also the loss in value of property built by him near the depot.
In the present case there had been no buildings erected at or near the proposed site of the depot. The land was cultivated as a farm, and there is no evidence that it was intended to be sold.
Appellee adduced evidence at the trial tending to show that he had been damaged in the sum of at least $1,200, and that he had been paid the sum of $325. He recovered judgment for the sum of $642. Hence it cannot be said that the evidence did not sustain the findings of the court.
Since writing the opinion, the court has held in the case of St. Louis, I. M. & S. Ry. Co. v. Batesville & Winerva Telephone Company, ante p. 300, that actual notice is required by section 5688 of Kirby’s Digest.
Affirmed.