Aрpellees instituted an action in the circuit court of Saline County against appellant railway company to recover the alleged amount of the rental value of a small strip of land in the village of Bryant, a station on appellant’s railroad adjoining its right-of-way, the same being covered by a spur track running from the main track of appellant’s railroad. Appellаnt filed answer tendering an issue upon the 'allegations of the complaint, but those issues were settled by the verdict of the jury; and, no exceptions being saved, that branch of the case passed out of the controversy. Appellant filed a cross cоmplaint against appellees, alleging, in substance, that the land in question, containing one-sixteenth of an acre, was in pоssession of the appellant, and that it is necessary for use by appellant as a switch and loading track aft Bryant. The crоss-complaint contained all the necessary allegations for ian action to condemn the property for railrоad purposes, and concluded with a proper prayer for condemnation and assessment of the owner’s damagеs. .Appellees filed no answer to the oross-complaint, and on a trial of the case the court, over appellant’s objections, submitted to the jury for determination the question whether or not the strip of land in question is necessary for appellant’s use in the conduct and operation of its business, and instructed the jury that appellant “must show by a fair preponderance of the evidence that the triangular strip of land belonging to the plaintiffs on which the track is now located is necessary for its practical use in the conduct and operation of its business before it is entitled to take said strip by condemnation.” The jury found against appellant’s right to condemn the land, and the court rendered judgment accordingly, from which judgment an appeal is prosecuted.
This court has held in a number of case* -that the statutory proceeding to condemn land for right-of-way for railroads is special to ascertain the compensation to.be paid the owner for the land to be taken, and that no provisiоn is made for an issue upon the right to condemn. Neimeyer & Darragh v. Little Rock Junction Ry. Co.,
In Mountain Park Terminal Co. v. Field, supra, we held that, while the sole object оf the statutory proceeding was to ascertain the amount of damages for taking land, the owner is not without remedy where his land is sought to be taken for purposes other than public use, and that courts of equity will mould an adequate remedy by injunction, in order to givе relief to -the land owner. Judge Battle;, in delivering the opinion of the court, said: “Courts have the power to determine whether a particular use for which private property is authorized by the Legislature to be taken is in fact a public use (citing authoritiеs). As an incident .to this power, in the absence of a .statutory remedy, a court of equity has the power to restrain a railroаd corporation from taking property for a private use.”
Counsel for appellant insist that this rule of procedure does not apply in the present case, because appellant was seeking to condemn land outside of what they termed the six-rod limit. A section of the statute, as to1 the exercise of the right of eminent domain by a railway corporation, prоvides that such corporation is authorized to lay out its road, “not exceeding six rods wide, and to construct the same, and for the purpose of cuttings, embankments and procuring stone and gravel may take as much more land, within the limits of the charter, in the mannеr provided hereinafter, as may be necessary for the proper construction and security of the road.” Section 2940, Kirby’s Digest.
The preceding section of the same statute reads as follows:
“Sec. 2939. To purchase, and by voluntary grants and donations receive and take, and by its officers, engineers and surveyors and agеnts enter upon and take possession of and hold and use, all such lands and real estate and other property as may bе necessary for the construction and maintenance of its railroad and stations, depots and other accommodаtions necessary to accomplish the object for which the corporation is created; but not until the compensаtion to be made therefor, as agreed upon by the parties, or ascertained as hereinafter provided, be pаid to the owner or owners thereof, or deposited as hereinafter directed, unless the consent of such owner be given to enter into possession.”
The object of section 2940 is to fix the maximum width of the right-of-way for the purpose of laying out the railroаd, and the railway corporation is not authorized to take more than that. McKennon v. St. Louis, I. M. & S. Ry. Co.,
No answer was filed by appellees, putting in issue appellant’s right to condemn the land. This court has hel'd that a cross-complainant, by going into trial on his cross-cоmplaint without insisting on answer thereof, waives the failure to answer, and elects thereby to treat all the allegations of his cross-complaint as having been denied and put in issue; but that rule cannot apply in a case of this kind, for the reason that no answer is necessary in a condemnation case, the amount of the damages being the only question involved. Bentonville Ry. Co. v. Stroud,
In order for appellees to have obtained the relief pointed out in the cases cited above, they should have filed а plea setting forth the facts relied on to entitle them to such relief, and then asked for a transfer of the case to the court which can give such relief.
The judgment of the circuit court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.