ARK.] FORT SMITH LIGHT & TRACTION CO. V. WARD. 519 FORT SMITH LIGHT & TRACTION COMPAN.Y V. WARD. Opinion delivered October 12, 1925. STREET RAILROADS L --REFUSAL OF PERMISSION To REMOVE TRACKS—EVIDENCE.—In a proceeding by a street railWay company to remove its tracks from a street as•being unremunerative evidence held sufficient to warrant a refusal of permission. Appeal from -Pulaski - Circuit Court, Second Divia sion; Richard M. Mann, Judge ;*affirmed. Hill & Fitzhugh, for appellant. G. L. Grant, for appellee. SMITH, J. The Fort SMith Light & TractiOn Company filed a petition before the Railroad Conunission: of this State, alleging, in substance, that it was operating a street car system in the cities of Fort Smith and : Van Buren and between said cities and outside the limits of' each city. That, owing to the inCreased Use of automo.-
520,, FORT SIVIITH LIGHT & TRACTION CO. V. WARD. [169 biles, thern street car service as a whole : had become unProfitable, and that a line known as the Van Buren local was especially unprofitable, and, was , operated. at a constam loss, and it was prayed; that the Commission grantit per, mission to remove a portion of this track. Tbe part Which the company desired to ,abandon extended from the, city, limits of the, city of Van Burento the plant ;of the Falcon Zinc &: , Selting Company, , a; distance . of ; 1.08 . ;.• Upon. the filing of this 'petition 1,259 'citizens: and; residents of Van; Buren:_filed; a- remonstrance to the -granting Of the prayer of this. petition and made ;themselves parties; to this proceeding; . and it was. alleged .by them that the ;line sought to be.abandoned was of vital need to. the 'people of ;the city of 'Van Buren:and; of the' adjoining country.f; ,;. ' . ;. ; ..; 'At the hearing-before the Railroad Conamission figures Were subniitted by: the auditor of the traction company showing that the 'revenue of the comPany was $244,- • 986.66, and the operating expenseS; were $205,478, .78, leaving 'a balance of $39,507.88. The valuation of the company's property was then -shown,; and with this basis of calculation it was made to appear that the company was earning less than tw6 per cent'. on the whole investment. A request was made that the, company detail the items included in the operating expenses, but this request was , not ,edmplied with. In the matter of the. earning power.of . the company's investment, the same showing was made here as was Made in the case of Ft. Smith Light: & TOactiqw, 1 C9,. 'V? ;Bpur-land, 160 Ark. 1 , . In . f . act, the appellant here :Was the appellant there. In the . ..former appeal the , question involved was the right to abandon , portion of, the coin-pany's track on the; rort Smith side, of the , river, while the.present case involves the right to; abandon ;certain tracks on the Van !Bureii side of the river. ,. The company had paused a .record to be made and kept showing the operating cost per mile of it§ different tracks, and from these figures it appears that the.portion
'ARK.] FORT SMITH LIGHT TRACTION CO. V. WARD. 521 • of the track Which is sought. to. be •abandoned 'was operated 'at all actual loss. In addition, the company. Offered • testimony tending. to . show • that'the public: convenience would not be served by . the continned- operation -Of the tra;ck in question; that it was' proposed by the State 'Highway Department-to improve a portion of the street over which the track.runs; and that; if this street were :improved and made a part of the :State highway 'system, the track should be'abandoned. Testimony opposing this view' r Was 'offered; and the:Railroad Commission declined ;to' grant the' permission requested: .• An appeal was:prosecuted to the•circuit court; where the. same finding waS niade, and bY this ' , appeal it Sought to reverse that judgment.-• • The law . applicable to the facts stated Was 'declared • in the 'case•of Fort-Smith Light & Traction Co. .v: . land, snpra, Bour-'and the remonstrants insist that the facts' in the two•cases are substantially similar, :, and that the decision on 'the • present-'appeal shoUld therefore bo controlled by the foriner'decision: , • . We have concluded that appellees are' correct in this conteiltion, and that the judgnient of the circuit court should be affirmed. • 'Appellant insists that the testimony is.substantially different, and that the decision in t h e'Bourland : case is not decisive of this appeal.. — • It is insisted that the testimonv • in , the former caSe shOwed that the patronage on the 'part of the:line - it was -P , . which roposed- to : abandon 'would probably increase, whereas no • suCh showing Was , niado . in the instant case. There was testimony, however,' that, •ecanSe there -Was a mountain on one side of Van Burenancrthe ArkariSas River on the other; the Tuttire 'growth of that citY 'would be in the' sectiOn of the city served by the track' WM:6h appellant now seeks to 'abandon.- It is insisted that it appeared in the • former case that the maintenance and continued operation of the track sought to-be abandoned would serve the public convenience, whereas the testimony here shows that the pub-
522 FORT SMITH LIGHT & TRACTION CO: "v. WARD. [169 lic convenience would be subserved by abandoning the portion of the track in question, and building the improved highway. The testimony shows, however, that, 'while the proposedimproved road is desirable, the route thereof is not the only one available, and that, if it were built, it could not supply the loss of street car service to many people who do not own automobiles. In the former case the track had•been used for twenty years, while in the instant case it was used only about eight years. But in this case, as in that, the track is not a mere lateral but is an extension of the main line. This extension was built in partial consideration of a donation of $2500 made by the Falcon Zinc & Smelting Company, this being a manufacturing.plant built at the end of the extended line. It appears that more than 150 men are employed in this plant, only a few of whom: own automobiles. It also appears that an addition known as the Rea Addition had been opened up at the . end of this line, and that a number of people bad bought or built homes there who worked in Fort Smith, and that in doing so they had relied on the street car service to provide means of going to and returning from Fort Smith, where they were employed, and that these people could not reside there and work in Fort Smith if' the service were discontinued. The trial court found, and the testimonY supports the finding, that the part of the track sought to be abandoned is only 1.08 miles in length, and is a part of the stre.et railway system of Van Buren, and should be treated as such, and that a sufficient showing was not made to justify the company imabandoning the unprofitable portion thereof. • This finding is• affirmed upon the authority of the decision of this court in Fort Smith Light c e.Traction Co. v. Bourland, supra. -Run. J.. dissents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.