I'EDERAL ltEPOR'1'ER,
.01. 49."
CC'irm#t Court Q/ L RlJJJlOAD
Eighth
J:anuary 25, 18l1S.)
occupied a land in the Indian TerritoryfrontingGlltbe Arkansas river, opPosite the 'citY' of 'Ft: Smt'tl1; and were el,lgagM in' operating a ferry at that point, uDdera'license granted theIll by the 'Cherokee Nation. The K. &. A. Ry. Co., in 1888, oondemned a right,or way through said: tract of land to the 'river. 'under Aot Congo .rune I, 1886, which authorizeu it to build a ranroadthrougb ,'< Territory, and to condemn land to be used forrwLlway. telegraph, and ,. telej)1OOtie purposes O'llly"" On MarohlS, 1890, oongress authorized tbe railway com· pany to build a bridge across the Arkansas river, to be used as a railway, passenger, and wagon bridge. The last act reoited that the building of the railway, as authorized by the act of June 1,1886, involved the necessity, of constructing the bridge. Held: (1) That, by theacllilf' Mit.roh 11),1890, ooligress impliedly authorIzed the railway company to use its ,w!l<J" as a,road-w,ayfpr,ordinary travel, so far as might be found necessary to giv!'.veliicles and foot passengers access to its bridge. (2) That tbe I{rant of the 'right to build. bl'idgeLfcr the purpose of general travel did not infriDl{e the ferry franchise. (3) That the oomplaiDantB D9tentitled to cODqlensatlon for the loss oqerry as the building dt the lJilidge andsuiliallle:approachelnhereto fol'< general tr&velllad DOt out oir access to the ferry landing"or,rende,ed-it,all.Y less feasible thiUJ. operate. ferry·.. (4) That a would no,t eDjoln :the railway company from perD:iittingtOot passenl{ers an4 veblolesto travel 'over its rigbt,Ot way, to suoh extent :as be Q.ecossary to the 1>ridge. fo.r the rea\lOll. that the liamp,ges, If f"lY, incident :to .liuch· lise, Iillgbt be recovered in aQ action at'lll.w,anil were oertAUuly very1il:ri8ll,ifnotpurelYl1omlQalj and. furtbermore, becaule tlu'silway-compan, lIot ,propO"to intrude 'UP'lQ the p08seBBion of any lana. by the 0011,1· plainants. " " ' , ,.' :.. ... '. .' , L Sui:....ltmBrnt;EQtrtft'.' . . " ,. ". ' " . .' A co'Urt of to grant an unoo.nditional IlljunotloD wb" It can afford !'Ome other mariner, would hav, beell afforded i1l'the prelleDt case by requiriulfthe railway 'company to Jrlve · bond . to pay ··olt damages,·1f as might eyentually &BlIe\l8edag!'JJ¥ltlt in consealleged new "n the right of '..
OF WAY-COMPENSATION,-!N1UNCTION.
triotor Arkansas.
the Circuit CciUl'tof the United States for the Western Dis-
right Of way 'for: ilI;>proachesto a passenger and wagon bridge., Defend.ant appeals fton'X lI. decree for complainants. ' . H.' S. Priest and Alex;' G. Cochran,. for appellant. John H: Roger8, for appeIrees. Before CALDWELL. Circuit .Judge. andSHIRAS and. THAYER·.District . .:" Judges. ! ",.l,." , , ' , . ."r
&: 'Arkanslls' 'Valley 'Rail WI1Y iCompany-to· restrain the use of:defendant's
Action' by GabrieIL:Pa'ybe and Houston J. Payne against the Kansas
"_
;
. appeal from .an order continuing ,8 lnjunctiQu, l;lS apthorized, by the seventh section of the act o:f!M"fph.3, this Qourt. The solequestiopforour ,is: whether existing injunctioo was ,+:varded , and.thatj, .by thq bll1:,8;nd,al1 swer, and the affidavits and. til8\l ;ip.the.)p:wer, ,pourtoll Ihearing of the motion. The record before us shows that the apPeU,qntis a corporation created and existing under and by virtue 9( of the state of Arkansas, and that by an act of congress approved June 1,1886, (24 St. p. 73,) it was authorized to locate, construct, and operate a rail· W83. teltJgraph, and telephone line through the Indian Territory. be-
THA)"$R., Dililtrict Judge.
:·. A. V. BY. CO. tI· .pAYNE.
U5
ginning on ,the eastern line of the territory, at or near the city of Ft. Smith, in the state of Arkansas, and. running thence, in a north-westwardly direction. through the Territory to a designated point on its northern boundary line. .To that end the railway company was empowered to take and use a right of way 100 feet in width through the Indian Territory, but it was provided, in effect, that the land taken should not be leased or sold, and that it should ordy be used in such man))er and for such purpose as should be necessary for the construction and convenient operation of a railroad, telegraph, and telephone line. The act contained provisions requiring compensation to be made to the Indian tribes and to individual occupants for· all such lands as might be taken, and it also prescribed a mode of condemnation to be pursued in certain contingencies; but, without going into detail. it will railway could be constructed through any suffice to say that before lands held by individual occupants, "according to the laws, customs, and usages of the Indi,an nations or tribes through which it might be constructed," the act required that full compensation should be made to such occupants "for all property taken or damage done by reason of the construction of such railway." Under the authority so conferred, and prior to the institution 9f this suit, .the appellant had located and its railroad for a long distance through the Cherokee Nation down to a. point on the north bank of the Arkansas river opposite the To reach the water at that point, it was compelled city of through a tract of land, fronting on the river, to condemn a right of and by the appellees according to the laws, which was customs, and usages of the. Cherokee Nation. Such condemnation proceedingwas.dllly prosecuted in the molie prescribed by tile act of June 1, 1886, and resulted in a final decree on January 14, 1888, granting to the railway company a right of way through the appellees' lands to the water's The daJllu,ges awarded in such appear to have been duly paid shortly after the final decree. . By another act of congress, approved March ·15, 1890, (26 St. p. 21,) the appellant was authorized ,to bridge the Arkansas river at or near Ft. Smith. The first section of thatact is as follows: . . "Be it enacted III III "'. that the Kansas &; Arkansas Valley Railway, a corporation organized and eXisting under,the laws of the state of Arkans1\s, being empowered by act of congress approved June first, eighteen .bUll dred and eighty-six, to construct its railway from a point on the bound!lry line of the Indian 'ferritory, at or near Ft. Arkausas. through said territory, in a north-west direction, to a point On the northern boundary line of said tprl'itor1; with t.llepower to build a branch as therein providl'd. the .oonstruction and operation of which !laid line of rallyvay involves the necessity of constructing a: bridge across the Arkansas river, Hi the Indian Territory, from a point at or·,near Ft. Smith. be, and the said Kansas&; Arkansas Valley Railway; its·suecessors alld a.'"signs, are hereby, empowered to cunstruct said 'brid!!e across said river, and to maintain and operate the same 88 a railway,' passenger, and wagon brldge."
proceede4,
of the act last refer!=ed to, the railway I:uj.tlge strictly accordance wit,h its
U6
FEDERAL REPORTtR,
vol. 49; ,
ions. It was so located that the northern end of the structure abutted on, and lay wholly within, the limits of the right of way previously condemned through the lands of these appellees, The bridge bad been about completed, and the railway company was constructing an approach thereto at the northern end, suitable for the use of wagons ann foot-passengers, as well as for railway trains, when the work was arrp.sted 'by the order or injunction from which this appeal was taken. The bill' filed by the appellees to obtain an injunction alleged, among other things, that complainants occupied land fronting on the Arkansas river both above and below the northern terminus of the bridge; that a ferry privilege was "attached to said land;" that they had a license and the exclusive right from the Cherokee Nation to run a ferry across the river:from that point to Ft. Smith, and had been engaged for years in runlling a ferry for the accommodation· of wagons; pedestrians, stock, and general travel, and had a large sum of moneiinvested in said ferry; that the company had begun to construct "on its right of way," at tHe 116rthend of the bridge, a wagon road and approaches for vehicles, foot-passengers, and general travel, and had alsobegtin to construct such apprOltches:on the' compldinants' land outside of the: 'limits df its right ohva:y.··.· It was' further averrea that. the construction of said road-way for fOQtmen' and general travel,' .on the railway company's' right of way, constituted an additional burden on complainants"larrd 'which was unauthorized by law; and that the construction of said roltd-way for gen· eraltfltvelovertbe appellant's right of way: and over the aomplainants' land, "wOufdutterly destroy the value Of the ferry privilege attached to said lands,and cause almost a total loss * * * oHhe money invested ferry, ferry franchises; privileges, and other ferry -pr0tr erty." '' " , The foregoing statement discloses. the material facts on which the appellees predicated their right to injunctive relief. The case is stated more . at length in the opinion :ofihe lower court. 46 Fed. Rep. 546. It is , evident thil:t'the existing injunction cannot bestistained on the ground that thE! railway compariy had begun to construct approaches to its bridge suitable for foot-passengers and vehicles, outside ofthe limits ofits right of way, and landsat' the time occupied by the appellees. The injunction a8 awarded is clearly too broad to be sustained solely onthat theory, for. the rejl.!3oq, that it inefi'ect restrains the railwayd<;>mpany from petmitting and foot-passenger$ to, have access'to its. bridge over any part of its .right of way heretofore mentioned, whicp is the only method of gainit'lg accese to the bridge that seams to be possible. The right to an injunctiorl, however, ienot rested exclusively or mainly on the ground last It is conten,ded. in behalf of the appellees, that the, way .company has no authority to any part of its 'right of ,way t9 be over by vehicles or foot-passengers for, ,the purpose of reaching the bri<i.ge, .because that. wpuld' be, subjecting the right o{ way to a new use, without compensation; and, that a court ofequity, when appeale,d to,must of llecessityaward an fnjutlctidh to prevent the imposition 'ofs'Uch additional servitude. We are of'the' opinloll;'in view
KANSAS & A. V. RY. CO.". PAYNE.
117
of all the circumstances of the case, that an unconditional order, such as was entered, restraining the appellant from constructing on its right of way a suitable road-way for footmen and vehicles, and restraining it as well from permitting the public to use the same, should not have been granted, and cannot be upheld, even on the last-mentioned theory. We entertain no douLt that the railway company has the right to construct an approach to the north end of its bridge, provided it keeps within the limits of its right of way, and that the appellees have no just cause to complain, even though the approach is made wide enough, and suitable for general travel, as well as for railway trains. The width and character of the approach is no concem of the appellees, if it is located wholly on land heretofore condemned and in the possession of the railway company. What they really desire to prevent by these proceedings is the use of the right of way by wagons and pedestrians when the approach to the bridge is completed; it is this right of use which evidently forms the subject of contention. By the act of March 15, 1890,sv-pra, congress, as we think, impliedly authorized the railway company to use its right of way as a foad-wayfor, ordinary_ travel, so far as might be found necessary to give vehicles arid access to its bridge. The railway company,_ therefore, has legiEllative sanction for permitting the new use of which the appellees -complain. The act declares that the structure thereby authorized may' be used asf!, Hrailroad, passenger, and wagonbridgej" and it recites, in substance, that the grant of the right to construct a railrOad through the Indian Tel'ritory, by the.previolls act of June 1, 1886, Hinvolved 'the necessity of constructing a bridge across the Arkansas river, in the Indian Territory, * * * at or near Fort Smith." From these provisions it must be inferred that congress intended that the north end of the bridge -should abut against appellant's right of way where it.intersected the kansas river, and form a mere prolongation of the right of way across the stream. Under these circumstances, we must presume that congress intended; that the railroad right of way should be used by wagons and foot-passengers to such extent as might be found necessary to enable them to reach the bridge, .and that appellant should permit sllchuse. 'To indulge in any other presumption would be to hold that congress has ,granted a right that cannot be enjoyed, as there is no mode by which general travel can reach the bridge, without passing to some extent over the railroad right of way. Furthermore, the moving papers in the cause .show that the railway company only proposes to use its right of way for general travel for a short distance back from the river, where the railroad -crosses a public highway, and that the opening of the bridge for the use ,of foot-passengers and vehicles, as well as for railroads, is a matter of such great public concern that the citizens of Ft. Smith have already nated a considerable sum towards the erection of the structure. It must also be borne in mind that the alleged new use to which the appellant proposes to devote a portion of its right of way in no wise interferes with ,the possession of any lands now held and occupied by the appellees; .neither.does it alter any: of the physical aspects of the, place·... The new
l1S
FEDERAL REPORTER ·
yol. 49...
servitode'imposed on the right of way will not render it any less than before to operate a ferry across the river, as it is not alleged,or even suggested, that any proposed changes made along the right of way to adapt it to general travel will obstruct access to the ferry landing, either on the land or water side, or impair any other riparian right. In short, the appellees, in their bill, have not alleged any ioss or inconvenience as liable to enlJue:from the new use, except tllat the opening of the bridge for the accommodation of general travel will lessen the patronage of the ferry; and this is evidently a species of damage against which neither a court of law or equity can afford the appellees any protection. It is a damage not due to the fact that by destroying some riparian rij1;ht of the appellees,or'by obstructing the approaches to the ferry landing, the railway company has rendered it less feasible to operate a ferry; but it is a damage that is wholly due to the fact that a new means of crossing the river has been authorized by congress, which enters into competition with the ferry, and renders the business less profituble. It is hardly necessary to add that congress was not bound to provide compensation for a consequential injury of that character, when it authorized the construction of a bridge, as the ferry franchise was not inlringed or taken, within the by building the bridge. And the same menning of the proposition\\'ould hold good if the appellees had had a special franchise to operate a ferry for a term of years, instead of a ferry license from the Cherokee Nrition, renewable annually, which is all that the present reeord-rliscloses. Parrott v. City of Lawrmce, 2 Dill. 332; Bush v; Bridge Co., 3 Ind. 21; Harlj(YT'dBridge (b. v.Union Ferry Co., 29 Conn. 210; Clutrle8 River Bridge ,v. Warren Bridge, UPet. 420. In view of the considerations to which we have adverted, \\'e are satisfiedthat the complainants below were not, as a matter of right, entitled to injunctive relief, and that the existing injunction should not have been granted, e"en though we concel!e, for the purposes of the present decision, that thea<1ditional use to which the railway company proposed to devote its right of way was of such character' as entitles the '.JompJainants to some additional compensation. It was undoubtedly a matter of much public concern to the citizens of Ft. 8uHth and the Indian Territory that vehicles and foot-passengers should be allowed to use the bridge a8 soon as possible, and that necessitated the use to a limited extent of appellant's right of way. When congress authorized the latter use (as we think it did) it was not incumbent on it to require compensation for the additiOlial servitude to be pail! in advance of its actual enjoyment by the public, even if some f\llditional compensation is recoverable. Oherokee NlltiO'(l. v. Railway Co., 135 U. 8. 641-659, 10 Sup. Ct. Rep. 965. Furthermore, the appellees have alight of action at law to recover such ,addit,ional compensation as they may be entitled to. Railway Co.-v.dlivine, 23 Kan. 591; Railroad Co. v. Bilker, 45 Ark. 252; Lewis, Em"iDom. § 623, and citations. But the most, important considerationbeaTingontlna right to aD' injunction is the fact that, in the of the authority granted toW by congress, the railway company does not' propose, to intrude upon the possession of any lands now occu-,