Hot Springs Railroad v. Williamson

Supreme Court of Arkansas

Hot Springs Railroad v. Williamson

77 S.W. 916, 72 Ark. 52, 1903 Ark. LEXIS 124

DecidedDecember 12, 1903

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This text of 77 S.W. 916 (Hot Springs Railroad v. Williamson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hot Springs Railroad v. Williamson, 77 S.W. 916, 72 Ark. 52, 1903 Ark. LEXIS 124 (Ark. 1903).

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Opinion

Battle, J.

(after stating the facts.) Appellees granted b> appellant a “right of way, of the width of six rods, for the purpose of locating, constructing and maintaining a railroad over, across, through or upon any land owned by them, situate or being' in the counties of Garland and Hot Spring, or either, and covenanted that it should quietly and peaceably enjoy the possession of the same. No other right of way or property was protected by this covenant.

Appellant did not allege in its complaint that it located or constructed its railroad “over, across, through or upon” any land owned by the appellees, but that it located and constructed it in and upon Benton street, in the city of Hot Springs, between the lots owned by the appellees and abutting on said street. There is no allegation that the appellees owned Benton street, or any interest therein, which they could grant as a right of way, or that appellant held, claimed or appropriated any part of the lots-abutting thereon for right of way.

On the ioth óf October, 1882, appellees brought an action for the recovery of damages for the injury which they alleged “had accrued to their lots and to their easement in Benton street, * * * and for injury and impairment of their right of access from said lots to and from said street by reason of the location, construction and maintenance of said railroad * * * in and upon said street in alleged violation of their rights and easements in said street as-adjacent landowners.” If this be true, they did not thereby disturb the quiet enjoyment by appellant of any right of way granted to it by appellees over their lands or protected by their covenants, but recovered damages for the injury to their lots caused in the manner stated in appellant’s complaint. These damages, or the rights or property out of the injury to which they arose, were not incident to, or any part of, the right of way granted by appellees; the railroad having been constructed in a street of the city Of Hot Springs. They had not waived such damages, and, under the constitution of this state, were entitled to recover them. Hot Springs R. Co. v. Williamson, 45 Ark. 429.

In the second paragraph of its complaint appellant fails to show a cause of action. Appellees covenanted that it should have quiet and peaceable possession of the right of way granted by them. No paragraph in the complaint shows a breach of this covenant.

Judgment affirmed.

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Battle, J.

(after stating the facts.) Appellees granted b> appellant a “right of way, of the width of six rods, for the purpose of locating, constructing and maintaining a railroad over, across, through or upon any land owned by them, situate or being' in the counties of Garland and Hot Spring, or either, and covenanted that it should quietly and peaceably enjoy the possession of the same. No other right of way or property was protected by this covenant.

Appellant did not allege in its complaint that it located or constructed its railroad “over, across, through or upon” any land owned by the appellees, but that it located and constructed it in and upon Benton street, in the city of Hot Springs, between the lots owned by the appellees and abutting on said street. There is no allegation that the appellees owned Benton street, or any interest therein, which they could grant as a right of way, or that appellant held, claimed or appropriated any part of the lots-abutting thereon for right of way.

On the ioth óf October, 1882, appellees brought an action for the recovery of damages for the injury which they alleged “had accrued to their lots and to their easement in Benton street, * * * and for injury and impairment of their right of access from said lots to and from said street by reason of the location, construction and maintenance of said railroad * * * in and upon said street in alleged violation of their rights and easements in said street as-adjacent landowners.” If this be true, they did not thereby disturb the quiet enjoyment by appellant of any right of way granted to it by appellees over their lands or protected by their covenants, but recovered damages for the injury to their lots caused in the manner stated in appellant’s complaint. These damages, or the rights or property out of the injury to which they arose, were not incident to, or any part of, the right of way granted by appellees; the railroad having been constructed in a street of the city Of Hot Springs. They had not waived such damages, and, under the constitution of this state, were entitled to recover them. Hot Springs R. Co. v. Williamson, 45 Ark. 429.

In the second paragraph of its complaint appellant fails to show a cause of action. Appellees covenanted that it should have quiet and peaceable possession of the right of way granted by them. No paragraph in the complaint shows a breach of this covenant.

Judgment affirmed.

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77 S.W. 916, 72 Ark. 52, 1903 Ark. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hot-springs-railroad-v-williamson-ark-1903.

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