Cooper v. Mobile, Jackson & Kansas City Railroad

48 So. 832, 94 Miss. 413

Opinion

Brame,

Footnotes

•

* Special Judge,

delivered the opinion of the court.

This is an appeal from a decree dissolving an injunction and dismissing a-bill, which bill was filed in the court below July 20, 1908, by appellants to enjoin appellee, the Mobile, Jackson & Kansas City Railroad Company, from removing its depot from the present site in the western part of the town of Pontotoc to what is known as the old site near the center of the town, and where the old depot of the Gulf & Chicago Railroad Company was before it was destroyed by fire. Tbe history of the case is-substantially as follows:

The appellee operates a railroad from Mobile, Ala., to Middleton, Tenn., which railroad traverses Pontotoc and other counties in the state of Mississippi. That part of the line extending-from a point near Decatur, Miss., to Middleton, Tenn., is owned by the Gulf & Chicago Railroad Company, and was leased by the appellee about the year 1903. The Gulf & Chicago Railroad Company had built a narrow-guage railroad from Middleton, Tenn., down to the town of Pontotoc, and this had been operated as a narrow-guage road some time prior to the lease. In the year 1903, the Gulf & Chicago Railroad Company, with a Tennessee corporation of the same name, presented a petition-to the Mississippi Railroad Commission asking leave to consolidate under the name of the Gulf & Chicago Railroad Company, and agreeing to widen and standardize the narrow-gauge road from Middleton, Tenn., to the southern terminus near Decatur. It seems that there was some controversy as to whether the petitioners obligated themselves to broaden and standardize the narrow-guage line throughout this entire length; but in the litigation hereinafter referred to this court upheld the contention of the Railroad Commission that there was such an obligation. When the narrow-guage road was being operated from Middleton to Pontotoc, the southern terminus was at the depot in the town of Pontotoc, and in a valley. After the Railroad Commission had given its consent to tlie consolidation, and about the time of the above-mentioned lease, work was begun to standardize the line and extend it southward from Pontotoc. The railroad company decided that it would be cheaper an better to change the location of the line at the town of Pontotoc,, and instead of extending it south from the old depot, to diverge to the westward, about a mile and a half north of Pontotoc, and run the line through the western part of the town. The purpose of the railroad company was thus to abandon a part of the old narrow-guage road, and it .was claimed that this was not a vio lation of the agreement made with the Railroad Commission at the time it gave its consent to the consolidation. Thereupon the deflection was made, and the railroad was built around on the hills and through the western part of the town of Pontotoc, as the corporation limits had then been extended. Meantime the old depot building at the southern terminus of the narrowguage line in the town of Pontotoc had been destroyed by fire, and the question arose as to building another depot.

About this time a petition of citizens was presented to the Railroad Commission to require the railroad company to rebuild the depot on the old site, and a counter petition opposing this was also filed; it being the desire of the counter petitioners and the railroad company at the time to have the depot at a point on the diverted line about three-quarters of a mile west of the site of the old depot. On January 12, 1904, the petition and counter petition came on to be heard before the Railroad Commission, which had visited the town of Pontotoc and examined the two proposed sites, when the following action was taken by the commission: “Ordered, that the Gúlf & Chicago Railroad Company, leased by the Mobile, Jackson & Kansas City Railroad Company, erect a freight and passenger depot of sufficient size and dimensions to transact the business of the said town of Pontotoc, on the old site or on ■the grounds now occupied by them as a temporary depot; that said work be commenced not later than the 20th day of January, 1904, and completed within 90 days from said date, on or about April 20, 1904.” The railroad company did not desire to obey this order, and thereupon shortly afterwards it filed its bill in the United States circuit court for the Southern District of Mississippi, seeking to enjoin the-commission from enforcing the order. A preliminary injunction was granted, and while this was pending negotiations wore had by the railroad company with certain citizens of Pontotoc, who desired to have the depot located on the new site, and accordingly it was determined to -build it there and it was so built, and stands there to this day.

It appears from the record, that the railroad company believed that the courts would finally decide that it was proper to locate the depot upon this new site. The road having been diverted and built through the .western part of the town, and a small portion of the old line having thus been abandoned, on August 3, 19.04, the state of Mississippi and the Railroad Commission joined in a bill in the chancery court of Pontotoc county, against the railroad company and its lessor, seeking to enjoin the defendants from abandoning that part of the line extending from the point of deflection on the north down to the old depot site in the town of Pontotoc, and a preliminary injunction was granted. The order of’the Railroad Commission above men-tioned was not directly involved in this litigation, but the loca-: tion of the line of railroad through the town was involved; for if the old line was to be followed, unless there should be two depots, the location of the depot site was indirectly involved. A motion was made by the defendants to dissolve this injunction, which motion was sustained, and the complainants. appealed to this court, and upon full consideration the decree was reversed, and the injunction was reinstated, and the cause was remanded. Por a full report of this case, see State v. Railroad Co., 86 Miss. 172, 38 South. 732, 122 Am. St. Rep. 277. The cause, being remanded, was again heard in the chancery court of Pontotoc county, and on March 10, 1906, a decree was rendered in favor of complainants, making perpetual the injunction which had been granted, to prevent the abandonment by the railroad company of the old line. Py its decree the court found as a fact that the citizens of the town of Pontotoc had never given their consent to the change of the depot from the old site to' the new. Prom this decree the defendants prosecuted an appeal to this court at the November term, 1906, and the case was again considered by this court, and the decree was affirmed. See Railroad Co. v. State, 89 Miss. 724, 41 South. 259, 122 Am. St. Rep. 295. In delivering the opinion on that appeal, this court expressly stated that the location of the depot was not considered, but it was held that tbe old liue bad to be followed. Tbe railroad company, still being unwilling to follow tbe old line, or to construct a depot on tbe old site, took tbe case to tbe supreme court of tbe United States, w’bicb on May 18, 1908, rendered a decision affirming in every respect tbe decision of tbis court. 210 U. S. 187, 28 Sup. Ct. 650, 52 L. Ed. 1016.

After tbe final decision by tbe supreme court of tbe United States, on June 15, 1908, Hon. R. VY. Eletcber, as attorney-general of tbe state and as a citizen of tbe town of- Pontotoc, filed a petition before tbe Railroad Commission, reciting therein tbe former order of tbe commission in reference to the depot site made January 12, 1904, and tbe litigation hereinbefore set out between tbe state and the Railroad Commission on tbe one band and tbe railroad companies on tbe other, and tbe fact that a final decision bad been rendered, as above sel forth, fixing tbe location of tbe line of railroad, and reciting, also, that tbe injunction suit, which bad been reinstated by tbe railroad companies to enjoin tbe execution of tbe order of tbe Railroad Commission made January 12, 1904, bad been abandoned and dismissed; and it was prayed in tbis petition that tbe commission would make an order requiring tbe railroad companies to discontinue tbe use of tbe depot in tbe western part of tbe town of Pontotoc and comply with the former order of tbe commission as to tbe depot site. On June 17, 1908, tbis petition came on to be beard before tbe Railroad Commission, and an order was entered reciting tbe filing of tbe petition and that tbe railroad companies were present and consenting that tbe prayer of tbe petition should be granted, and thereupon it was ordered that tbe depot should be removed from its location to tbe old site, tbe order to be effective thirty days from its date. While tbe railroad companies steadfastly opposed following tbe old line and rebuilding tbe depot on that line, it seems that by this time they bad become convinced that further opposition was futile, and thereupon it seems that a temporary arrangement was made between tbe railroad company and tbe repre sentativeW the state, by which the line as built and the depot as constructed should be used until such time as the road could be changed to the old line, when it wás contemplated that the depot should be established and rebuilt on the old site.

This being the status of affairs, on July 20, 1908, the appellants, Cooper and ten other citizens of Pontotoc, filed the the bill in this case against the appellee, the Mobile, Jackson & Kansas City Railroad Company, averring that on or about January 1,1904, having no railroad depot in Pontotoc, the railroad company invited the co-operation of the citizens in determining the place at which a depot should be established, in order that it might be accessible and convenient for the citizens of the town and for the railroad company; that in response to said invitation there was a public mass-meeting of the citizens of Pontotoc and vicinity, at which were present the officials of the defendant company; that a committee was appointed to consult with the officials of the company as to a proper and suitable location for the depot, with full authority to agree with such officials as to the location of the deopt, having due regard to the convenience and accessibility thereof for railroad company and the public; that the committee came to an agreement with the railroad company that the depot should be established at the present location in the western part of the town; that in accordance with this agreement the railroad company immediately thereafter in apparent good faith, claiming to believe that the place selected was most convenient and suitable for the depot, erected a commodious depot building and opened the same for the transaction of business;- and that the same has since that time been maintained as the depot of the defendant. The bill further alleged that the place selected and agreed upon and being now-used as a depot by the public and the defendant company is resonably accessible and convenient for both the company and the public, and more so than any other location within the corporate limits of the town; that complainants, relying upon the express and implied agreement of the railroad company to main tain the depot at this place, expended large sums of money in the purchase and improvement of property situated near by, and that they are individually interested in haying the depot' maintained at said place. The bill further alleged that the railroad company, without lawful excuse or jurisdiction, threatened to and was undertaking to remove said depot building to another place, and would do so unless restrained by legal proceedings ; that to discontinue said depot would be a great inconvenience to the public, and would cause special, pecuniary, and irreparable damage to plaintiffs. The bill further alleged that the company had no legal right to abandon said depot, and that the attempt to do so would be to exercise arbitrary and unlawful discretion. The bill prayed for a temporary injunction for-bidding the defendant from removing the depot, and asked that on final hearing this injunction should be made perpetual and for .general relief. The bill was sworn to, and an answer under •oath was waived. By the fiat of the judge of the third district ■the temporary injunction was ordered to issue upon the complainants giving bond, conditioned according to law, in the sum •of $1,500.

The injunction was duly issued, and the defendant railroad •company answered the bill, not under oath, setting up as exhibits the'records and opinions in the chancery suit above referred to, and also the orders of the railroad commission in reference to the location of the depot. The answer admitted the allegation as to there being no depot in the town, .and the invitation to the citizens, and their participation in the selection of a depot site; admitted that the railroad company and a large part of the citizens agreed upon the location in the western portion of the town; and admitted that it was then believed that the site agréed upon was as convenient and accessible to the interested public as any that could be obtained. It was not denied that the complainants had expended large sums of money in the purt •chase and improvement, of property situated near the depot site; but it was dneied that without lawful excuse or justifica tion the defendant was undertaking to discontinue and remove the depot. Defendant denied the allegation that to remove the depot would be a great inconvenience to the public, but admitted that some pecuniary damage might be suffered by complainants or some of them; but it was contended that the defendant was in no way responsible for such damage. It was denied that the company had no lawful right to remove the depot. The answer then set up the orders of the railroad commission and the litigation before referred to, and it was averred that the defendant did not desire to obey the order of the commission of January 12, 1904, an that it had filed its bill in the federal court to enjoin the enforcement of this order. Further, the answer set up that the defendant had resisted to the last the litigation instituted by the state and the railroad commission to compel the building of the road on the old line; but the defendant stated that after it had failed in the litigation, and it had been finally decided that the railroacj should be built upon the old line, and the railroad commission had by two orders directed the building of the depot on the old line, it had conclued that further resistance was useless, and that it would obey the decree of the court, and said orders of the railroad commission in reference to the location of the depot; that it was in good faith proceeding to comply with the ddcree and said orders, and had entered into a temporary arrangement by which it was to have time to rebuild the railroad and to locate the depot on the old site, when it was enjoined from doing so; and it was averred that no alternative was left it but to obey the decree of the court under heavy penalties .for any disobedience. The answer further set up that the defendant had its men and equipment at the town of Pontotoc for the purpose of executing its agreement with the railroad commission and the state of Mississippi to remove the depot to the old site, and that it had been delayed in this work by the suing ,out of the injunction.

A motion was jnade by the defendant to dissolve the injunction upon bill, answer, exhibits, affidavits, and records in said chancery case. Notice was given of this motion, and the same heard by the chancellor in vacation on August 3, 1908, a decree was entered sustaining the motion, dissolving the injunction, and dismissing the bill. The decree also awarded damages to the defendant on the injunction bond in the sum of $188.33. The complainants prayed and obtained an appeal to this court, but supersedeas was disallowed. In this court an agreement of counsel is filed^ showing that the case was heard on the pleadings, exhibits, and records hereinbefore set forth, and that the transcript contains all the pleadings and proceedings in the case, except the evidence that refers to the amount of damages awarded-for the suing out of the injunction; it being agreed that the court did not err in assessing damages, unless is should be held that the injunction was improperly dissolved. The one assignment of error is that the court erred in sustaining the motion to dissolve the injunction and awarding damages. It may he noted that in 1906, pending the litigation above set out, 'a special act of the legislature was passed which attempted to ratify and confirm the abandonment of the old line of the narrow-gauge railroad before mentioned; but this act was held unconstitutional and yoid. See Railroad Co. v. State, 89 Miss. 724, 41 South. 259.

It seems obvious that the decree must be affirmed. The orders of the railroad commission fixing the location of the depot are not assailed, except indirectly and collaterally. The commission is not made a party defendant. Obedience to its orders has never been restrained or enjoined by the judgment of any court. But we do not consider it necessary to decide whether or not these orders are of themselves valid and conclusive as to the location of the depot. - The decree of this court, affirmed by the decision of the supreme court of the United States, finally and definitely fixed the location of the railroad on the old line. While the location of the depot was not directly involved in that litigation, the effect was to remove the depot from the present site, because, of necessity, the depot must be on the railroad, and it is apparent that there is no necessity for two depots in the town of Pontotoc. It is true the railroad company desired to build the line around through the .western part of the town, .and to locate the depot there, and it took the position that this was a convenient, accessible, and proper place for the depot; but, since the location of the main line has been determined adversely to its contention, there is nothing left for it to do but to build the railroad on the old line, and the relocation or the removal of the depot necessarily follows.

The decree is affirmed.

Fletcher, J., having been of counsel in this case before his appointment to the bench, recused himself and L. Brame, Esq., a member of the supreme court bar, was appointed and acted in his place. ,