63 Ark. 94 | Ark. | 1896
(after stating- the facts.) There is only one question presented for our consideration in this case: Did the resolution of the board of directors of the appellant company, read in evidence and passed by said board in 1887, authorize the construction of the branch line of railroad for which the land of Petty is asked to be condemned? The learned special judge held that it did not, and that there was no authority to bring this suit until given by the subsequent resolution of said board of directors, passed in 1890, after the commencement of this action. The question relates to the intention of the board in passing the resolution of 1887, and to the power conferred by its passage. After consideration of the same, we are of the opinion that this resolution, so far as the board of directors were enabled to do so, empowered the president of the appellant company to construct branch lines of railway connecting the city of Port Smith with the main line of appellant’s railway at Beebe and also with the main line at a point in either Clark or Nevada counties. The objection that the resolution only authorized the construction of a branch line from Port Smith to Beebe, and that the line from a point in Clark or Nevada county was intended only as a connection with this branch from Beebe to Port Smith and not to be built until after the construction of said last named branch seems to us hypercritical. It sufficiently appears from the resolution that the board of directors intended to authorize the construction of two branch lines of railway, one leaving the main line at Beebe and the other at a point in Clark or Nevada county; these two branch lines to converge at a point on or near the line between Scott and Sebastian counties from which point a single line to Port Smith was authorized. It seems to us of no moment, under this resolution, whether the branch from Beebe to Port Smith was first built, and then a connection made with the point in Clark or Nevada county by a line diverging- from the above named branch, or whether the branch connecting Port Smith with the main line at a point in Clark or Nevada county was first constructed, and afterwards a connection made with Beebe. In either case the result is the same. The board of directors seems to have been of this opinion, for the resolution authorized the president to put under construction such portion of the lines named .therein “as his judgment may approve,” thus expressly authorizing him, as we think, to first construct the branch line from Port Smith to the point in Clark or Nevada county. Nor does it seem material that no particular point in either Clark or Nevada county was designated by the resolution. It is sufficient that the resolution authorized the construction of a branch line to Fort Smith, and that under this authority the line had been surveyed and established and partly constructed through Sebastian county, where the land sought to be condemned is situated.
When this case was here on a former appeal, Chief Justice Cockrill, referring to the fact that the construction of this branch line had been commenced at a point in the state remote from the main line, said that the power to take property in invitum for the purpose of such construction “could not have been exercised except upon a clear showing of a bona fide intent to push the enterprise through presently to the trunk connection which alone authorized its construction.” Railway Company v. Petty, 57 Ark. 359. Upon the question whether the evidence was sufficient to show that the appellant •company honestly intended, so soon as practicable, to push the construction to a connection with its main line, as authorized by the resolution of the board of directors, we do not express an opinion. It is sufficient to say that there was some evidence tending to show that such was the intention of the company, and the question should have been submitted to the jury. It was therefore improper to direct a verdict for the defendant. The judgment must be reversed, and the cause remanded for a new trial, and it is so ordered.