ARK.] PATTERSON ORCHARD CO. v. SOUTHWEST 1029
ARKANSAS UTILITIES CORP. PATTERSON ORCHARD COMPANY v. SOUTHWEST ARKANSAS UTILITIES CORPORATION. Opinion delivered July 8, 1929. 1. EMINENT DOMAIN—RIGHT TO EXERCISE POWER OF.—The fact that a foreign corporation, prohibited from exercising the power of eminent domain, is interested in a domestic corporation, or owns the greater part of its stock and controls its management, 'will not prevent the latter from exercising the power of eminent domain. 2. CORPORATIONS—POWERS OF KOREIGN CORPORATIONS.—When a foreign corporation has complied with the laws of this State with reference to doing business therein, it is authorized to perform all acts and conduct its business in the manner authorized by its charter, except in the cam of a plain constitutional restriction. 3. CORPORATIONS—RIGHT OF FOREIGN CORPORATION TO ACQUIRE RIGHTS-oF-WAY.--Const. art. 12, § 11, authorizing foreign corporations "to do business in this State under such limitations and restrictions as may be prescribed by law," and prohibiting them from condemning private property, does not prohibit ouch corporation's frOm acquiring rights-of-way by purchase, lease or otherwise than by condemnation proceedings. 4. E MINENT DOMAIN—EXERCISE OF POWER BY DOMESTIC CORPORATIONS. —Under Const., art. 12, § 11, a domestic corporation may condemn right-of-way for a power line and lease its rights so acquired to a foreign corporation, although the dome:tic corporation was created for the purpose of acquiring such right for the benefit of a foreign corporation doing business in the State. 5. EMINENT D OMAIN—MOTIVE OF CONDEMNOR.—The act of a domestic corporation in securing a right-of-way for an electric line by exercise of its power of eminent domain cannot be questioned except for fraud shown, although the principal motive for its incorporation was , to secure a right-of-way for a foreign corporation, though the incorporators of the domestic corporation were employees of the foreign Corporation, to which the greater part of its capital stock was immediately transferred. 6. APPEAL AND ERROR— CONCLUSIVENESS OF CHANCELLOR'S FINDING.—A chancellor's finding that the erection of a transmission line on a right-of-way would serve a public need will be suotained unless contrary to the clear preponderance of the testimony. 7. EMINENT DOMAIN— NECESSITY FOR CONDEMNATION.—The question whether a condemnation of a right-of-way for a transmission line was necessary must be left largely to the discretion of the con-demnor, and the exercioe of that discretion will not be disturbed unless it clearly appears that the discretion has been abused and
1030 PATTERSON ORCHARD CO. v. SOUTHWEST [179 ARKANSAS UTILITIES CORP. the ' action arbitrary and causing unnecessary damage to the property owners: 8. EMINENT DOMAIN—EktbCT OF DECREE. — A decree in proceedings to condemn a right-of-way for an electric transmission line, reciting in effect that the petitioner was thereby granted a right-of-way across defendant's land for the purpose of constructing, maintaining and operating a transmission line held to create an easement merely. 9. EMINENT DOMAIN—RIGHTS OF OWNER OF FEE.—Under -a decree condemning a right-of-way for a transmission line, the landowner retained the right to enter upon . the land at all reasonable times and for all reasonable purposes not inconsistent with the rights of the condemnor, and could continue to grow peach trees, cultivate them and gather the fruit. 10. EMINENT DOMAIN—DAMAGES. — IH a proceeding to condemn a right-of-way for a transmission line, the landowner could not recover damages on the ground that the line was erected without sufficient authority at the time of the erection. 11. EMINENT DOMAIN—POWER LINE—DAMAGES RECON T ERABLE. —In a proceeding to condemn a right-of-way for a transmission line, the landowner is entitled to recover as damages the full value of the land taken and such damages to the remainder of defendant's orchard as might be sustained by erection of the line across this orchard. 12. APPEAL AND ERROR—QUESTION NOT PRESENTED. — A question as to the right of a corporation not a Party to the suit was not presented on appeal. 12. EMINENT DOMAIN—ALLOWANCE OF COSTS.—Under Crawford & Moses' Dig., § 3999, a chancellor did not abuse bis discretion in adjudging the costs in an eminent domain proceeding against the landowner. Appeal from Sevier Chancery Court; C. E. Johnson, Chancellor; affirmed. Lake, Lake & Carlton, for appellant. • Abe Collins and Arnold & Arnold, for appellee. BUTLER, J. The chancery court of Sevier County, on the petition of the Southwest Arkansas Utilities Corporation, rendered its decree in favor of the petitioner condemning a right-of-way across the orchard lands of the Patterson Orchard Company thirty feet in width, for use as a right-of-way for its lines used in the transmission and supply of electricity for public use, and adjudging to the Patterson Orchard Company for its damage
ARK.] PATTERSON ORCHARD CO. v. SOUTHWEST 1031 ARKANSAS UTILITIES 'CORP. the sum of $1,000. From this decree the Patterson . Orchard Company appeals to this court, and to that 'part of the decree adjudging damages the Southwest Arkansas Utilities Corporation has filed . its cross-appeal, and-has also asked this court to determine on its • cross-appeal the question as. to whether a foreign cor-• poration engaged in the business of generating and transmitting electricity for public use, and which has complied with the laws of this State with reference to foreign corporations doing business herein, is authorized to exercise the right of eminent domain. • There are five questions ' presented -to this court frr its determination by the appellant, Patterson Orchard Company, which. are as follows: (1) Could the appel-lee, a domestic public utilities corporation, clothed with the power of eminent domain, exercise that power for 'the benefit of a like foreign corporation which had complied with the general laws of the State prescribing upon what terths a foreign corporation might do business therein? (2) Was the- purpose for which a right-of-way was sought to be condemned across the appellant's * orchard one to serve a private use and not a public use, and, if the former, was the decree of the chancery court justified by law? (3)- Was the right-of-way sought to be condemned necessary in order to enable the appellant -or its lessee to perform tbeir functions and duties to the public? (4) Was the chancery court correct in decreeing to appellee a fee 'simple title in and to the strip of land across the orchard of appellant? (5) Was the damage awarded to appellant adequate? On its cross-appeal the appellee contends that the damages awarded were not only adequate, but excessive, and against the preponderance of the testimony. Ap-pellee also has asked this court to pass upon the ques-don as to whether or not a foreign corporation, having complied with the general laws of the State with reference to a foreign corporation doing business therein and engaged in the business of generating and transmitting
1032 PATTERSON ORCHARD CO. v. SOUTHWEST [179 •ARKANSAS UTILITIES CORP. electricity for . public use, has the right to exereise , the power of eminent domain and condemn a right-of-way for the purpose of its businesS. The appellant, in addition to the questions presented and hereinbefore stated, challenges that part of the decree of the court adjudging the costs against it. The testimony in this case as to the amount of damages sustained by the apPellant is conflicting, but there is no dispute as to the other facts in the case, which are substantially as follows: The Southwestern Gas & Electric Company, a Delaware corporation, after having complied with the statutes of this State, was engaged, among other things, in the transmission of electricity for public use, and prior to the 17th day of March, 1928, owned and operated a transmission line from DeQueen, by way of Horatio-, to Foreman, in Sevier County, Ark-ansas, the right-of-way of which paralleled the public highway and Was adjacent thereto. This transmission line was a . 33;000-volt capacity. At and before the date mentioned above, the said company was engaged in rebuilding, relocating and increasing the capacity of its high power electric transmission line running from. Shreveport, Louisiana, to DeQueen, Arkansas, and had proceeded with this work until it reached the orchard of the appellant, located about three miles south of De-Queen, and, having been unable to obtain the right-of-way further across •said orchard, filed its suit in the Sevier Circuit Court by which it sought to condemn said right-of-way for its own use, and, having made the de- - posit in the sum named by the circuit judge, obtained on said day an order permitting it to enter upon the land of the appellant for the, purpose of constructing its tran§- mission line, and, op the same day that the order was obtained, put a large force of men on the work and proceeded with the construction of said line across the appellant's land. On the same day, and a short time after the order had been procured and the -work begun, the appellant, learning of this, filed its petition for a revoca-
ARK.] PATTERSON ORCHARD do . . v. SOUTHWEST 1033 ARKANSAS UTILITIES CORP. tion of the order, setting up as grounds therefor the fact that the Southwestern Gas & Electric Company was- a foreign corporation, and alleging that it was without authority or right to exercise the right of eminent domain or condemn a right-of-way over the appellant's land. This petition was presented to the judge at about noon on the same day on which the order was made, namely, March 20, and thereupon the judge issued an order holding in abeyance his former erder, and setting March 24 for the bearing of the original petition of the Southwestern Gas & Electric Company. A- copy of this last order was duly certified by the clerk and served by the sheriff upon the superintendent of the electric company in charge' of the work. At that time the electric•light poles bad been erected across the entire tract, a distance of , three-quarters of a mile, and the wires had been unrolled and lay across the orchard and the branches of some of the peach trees, and, after the order revoking the former order was served, the workmen continued to work for about an •hour or an hour and a half, attaching -the wires . to the poles, the reason given for this apparent disobeyance of the 'order being that the work done after the notice:of the revocation of. the former order was tbat the wires might become tangled or damage the trees, and that they might properly be preserved. On the 21st of March the appellant, Southwest Ark-ansas Utilities Corporation, was organized witka capital stock of $25,000, divided into 250 shares of the par value of $100 • each. The superintendent of the gas and electric company took 248 shares of this stock and two other employees of said electric company took one share each. The purpose for which this company•was organized, as. stated:in its.charter, was to generate and , transmit electricity for public use. As soon as, or a short time after, its organization and the issuance of its charter, the 248 shares taken by the superintendent of - said company were issued to the gas and electric company in exchange :for the transmission line extending from the north 'bank
1034 PATTERSON ORCHARD 'CO. V. SOUTHWEST -[179
ARKANSAS UTILITIES CORP. of Little River over the Drchard of appellant to the substation of the gas and electric company at DeQueen, and the said line was then leased by the appellee to the .gas and electric company. On the •24th day of March, the date set for the hearing of the petition of the- Southwestern Gas & Electric Company, the appellee filed its intervention, alleging the purchase from the gas and electric company of all its rights in and to the transmission line constructed by it across the orchard of appellant. On the da.y of the hearing, after a resolution of the stockholders of the new company had been passed, -by . Which there was adopted for the appellee corporation the route across appellant's orchard which had previously been selected by the gas and electric company, it filed in 'the offic e of the circuit clerk of the .county its complaint, whieh is the original complaint in the case at bar, and the original_ suit and intervention were abandoned: A -date was set for the hearing- of the complaint and petition filed 'by the appellee, the 11th day of April, and on that day 'an order was entered authorizing the appellee to go On the lands of the appellant for the purpose of constructilig and maintaining a transmission line, and requiting 'the appellee to make a deposit of $750 to be used in payment of such damages as might be finally assesSed against it, which deposit • was accordingly made. The appellant filed its answer, and asked that the cause be transferred to equity, and that it have a permanent injunction against the appellee. Upon a hearing, the chancery court -entered a decree, to which _reference has been -heretofore made. 1. It is urged by the appellant that, under the facts . disclosed, the creation of the Southwest Arkansas ' Utilities Corporation was but a subterfuge for acquiring a right-of-way indirectly for the Southwestern Gas & Electric Company,- which could not be done directly because of a constitutional prohibition ; that the sole purpose behind the organization of the appellee company was to acquire a- right-of-way for the gas and electric com-
ARK.] PATTERSON ORCHARD CO. v. SOUTHWEST 1035 ARKANSAS UTILITIES CORP. pany, and that therefore it had no -right to exercise the power of eminent domain for such purpose. , It cannot be questioned that one of the reasons, if indeed not the principal one, for the formation of the appellee company was the procurement of a right-of-way for the gas ..and . electric company, but there was also testimony to the effect that said company was organized to serve, and has served, as a developing company for the Southwestern Gas &•Electric Company, and that it will own the . right-of-way over which the new transmission line shall • run until such time as it shall see fit to dispose -of this property, and that, while at that time it had no funds 'available to pay out for development purposes, it expected to get funds from t.he gas and electric company, or from banking firms, bond issues, or otherwise. •The- legal -existence of the appellee corporation is not questioned, but it is insisted that the State Constitution prohibits a foreign corporation from exercising the. power Of eminent domain, and that it cannot 'take the right as lessee of a domestic corporation, or by other .means. Especially would that be true in this case, appellant says, under such circumstances surrounding its -. organization as are set out above, and cites tbe cases of State v. Scott, 22 Neb. 628, 36 N. W. 121, and Koenig v. .Chicago, etc. Ry. Co., 27 Neb. 699, 43 N. W. 423, which • cases apparently sustain the appellant, in its contention. Appellant also cites the case of Sinip-:sOn v. Teftter, 176 Ark. 1093, 5 S. W. (2d) 350; but which case can have no application to the state of facts presented in the case at bar. The weight of authority, however, is contrary to the rules announced in the 26th and 27th Nebraska reports, supra, and sustains the position that, while a foreign corporation-might not have authority to ..exercise the right of eminent domain in the procurement of its rights-of-way, it might cause another company of its own stockholders to be so -. organized as to have that power, and that, when such subsidiary company has obtained the right-of-way, it may lease its line to the foreign corporation:
1036 PATTERSON ORCHARD CO. v. SOUTHWEST [179 • ARKANSAS UTILITIES CORP. In the case of Lower v. C. B. ce Q. R. Co., 59 Iowa 563, 13 N. W. 718, the court said: " The evidence shows that the Chillicothe & Chariton Railroad Company haS leased the road in question to the Chicago, Burlington & Quincy Railroad CoMpany, 'and we think that the evidence shows that the former company was organized with the design of procuring a right-of-wa.y and buirding a road to be used by the latter com-• pany. It does not, however, follow that the plaintiffs have been defrauded. The land taken has been taken for • public use, and just compensation, as we must assume, has been made to the plaintiffs. Their real grouiid of . complaint, so far. as their alleged equity is concerned, is that they have not been allowed to hold the key to the situation in such_a way as to enable theni. to 'defeat the -construction of the road, or obtain more than 'just -COMpensatiOn. The amount demanded by the •laintiffs was snch as to show very Clearly that it was graduated without any reference to the real damages sustained, but the supposed exigency of the compariy. Now, while it some times'happens that a person can, under -the protectinfi of law, practice extortion, it is proper for an intended victim to resort to every legal-device to defeat the attempted ;extortion, and, if he succeeds, his action cannot properly be called fraudulent. The plaintiffs, indeed, do not themselves seem to place Much reliance upon the alleged ground of fraud. This-appears from the emphaSis which they place upon the necessity of construing strictly' the powers of a corporation. If we could see that the plaintiffs have been defrauded by the defendants, our way would be very clear. The fact of fraud would entitle the plaintiffs to relief, and it would be of very little con-. sequence what the defendants' powers are. Now, we apprehend that the real question in this case iS not a question of fraud, but of Power. The plaintiffs, we think, have no right to relief unless they can maintain the correctness of the following proposition : The Chicago, Burlington & Quincy Railroad Company has no power to
ARK.] PATTERSON: ORCHARD CO. v. SOUTHWEST 1037
ARKANSAS UTILITiES CORP. COrideihn the land in irieAtión. This being so, no Other CoMpany , Can be o .iganized With Pdwer to cOndehin it WhOSe . SOle object ks 16 di r d th-e ChiCagb, Builingtoh & Qniney Railroad donipany * *. If, theh, the Chicago, Bhrlirigton & Qnincy RailrOad ComPany lacks the power to build such road, it is Simply becanse its artieles of incorporation do nOt so provide exPressly or by reasonable hriplication. But the Chillicothe & Chariton Railroad CoMpanY can bnild the road, and that, too, even though it derive'S all it§ means from the:Chicago, Burling-ton & QuilicY Railroad ComPany, arid builds it With the expresS deSign of leasing it' to that cbMpany." In the case of Postal Tel. Cable Co. of Utah v. Oregon S. L. P. Co., 23 Utah 474, 65 Pac. 735, the court said: "After arguthent the dethurier Was r iverruled by the lower bourt, and the apriellant answered, denying the incorporation of respondent, and basing its defense principally upbn an allegation that the respondent is the agent and under the control 'of the Postal Telegraph Cable Company of New York, a -foreign corporation, which has not the poWer to exercise the right of etainent domain in thi State, and Which, through the organization of respondent, is seeking to clb by indirection that WhiCh it cannot accomplish in its bwn name direetly, and that in realit , respondent has no separate existence from the Postal Telegraph Cable CoMpanY of New York. * * * It is alsO insisted by the appellant that the respondent is not a corporation either de jure or de facto. The respbndent appears to haVe complied fully with the laws ot Utah. * * * Clearly it is a corporation, and, being stch, it is , a legal entity (citing ; cases), and it is granted the right to exercise the Power , of eminent domain. It may be true that tbe Postal Telegraph Company of New York is interested in respondent, but that fact does not divest from responderit any of the corporate powers with which it is clOthed. There .is notb-ink in the letter, spirit, or polidy of the laW which pro-
1038 PATTERSON ORCHARD CO. V. SOUTHWEST [179
ARKANSAS UTILITIES CORP. hibits the same persons from forming and conducting two or more different corporations. This same question was before the United States Circuit Court for the District of Idaho. Postal Telegraph Cable Co. v. Ore. .8. L. R. Co., 104Ted. 623, is a case upon all-fours with the one at bar., These views are fully sustained •by the following authorities . (Citing cases)." • . In re N. Y. L. & W. R. Co. v. Union Steamboat Co., .90 N. Y. 12, 1 N. E. 27, contains this declaration: "The fact that a railroad is leased to another is'notiatal to its .right to have lands condem.ned for its.benefit, upon a case of necessity shown, even though the lessee, road is .a corporation foreign to the State." • . , In 20 C. J. 543, the rule is stated in,this language : "The fact, however, that a foreign co'rporation is interested in a domestic corporation, or owns the greater part of its stock and controls its management, will not :prevent the latter from exercising the power of eminent domain." See also Jdaho Postal Telegraph Cable Co. v. Ore., S. L. R. Co., 104 Fed. 623 (Affirmed 111 Fed. 842, 49 C. C. A. 663), 90-Am., St. Rep. 765. "'The fact that *the condemnation of the land in question is also earnestly desired by a foreign corporation and will inure largely to its benefit, furnishes no reason for denying the relief asked for by the petition, provided it has brought' itself within the language of the statute authorizing such proceeding.'? In re Application of Staten Island Rapid Transit R. Co. etc., 103 N. Y. 251;8 N. E. 548 ; In reN. L. •c6 W . R. Co., 99 N. Y. 21,1 N. E. 27. The provision of the Constitution of the State . of Nebraska with reference to the rights of foreign Corporations exercising the right of domain, as quoted and construed in the case of Koenig v. Chicago, etc., Ry. Co., 27 Neb. 699, 43 N. W. 423, and State v. Scott, 22 Neb. 628, •declares that no foreign corporation can exercise .the right of eminent dothain or acquire' a right-of-way or real estate for a depot or other. uses, and in the case of Koenig -v. Chicago, etc., , *Ry. Co., , supra,. the court, refer-
ARK.] PATTERSON ORCHARD Co. V. SOUTHWEST 1039 • •. ARKANSAS. UTILITIES 'CORP.. ring, to, a foreign — railr6ad corporation, said: "If it can.- net acquire, then it s forbidden to hold what it is prohibited from acqpiring, 'because the effect of the denial of . the right of acquisition.is fo Prevent it, from taking the propertY, and, as . ft cannot do indirectly what it iS prohibited.from doing directly, it cannot acquire and hold a leased line . and thus evade a plain cOnstitutional prohibition." . There is . .n6 such prohibition in the Constitution of , •thiS State, and it is clear that, when a foreign corporation; has complied ; with the laws of this. State with reference to doing business therein, it is authorized to perform all acts and : conduct its 'business in the manner authorized by . , its charter', except in the caSe of a plain consti-, futiOnal restric • tion . . , • • .'Section 11, article 12, of the Constitution of Arkan-sas is ,as' fellows : ."Foreign corPorations may be authorized to do busi-ness- in this State under such limitations and restrictions as may, be 'prescribed by law *. * ' v . They shall be subject to, the sanie regulations, , limitations and liabilities aS 'like CorPorations of:this State, and shall exercise no other or greater powers, priyileges or franchises than may beexerciSed : by like. Corporations of this State ; nor shall they have-poWer tO condemn or . appropriate private
property." . .• • . if will be seen.from this language that ft is material-. If different from that of the Constitution of the State of N. , eliraSka, and , the . only restriction on the powers of for-. eign 'corporations doing -buiness 'in this State is contained . in t . he last clause, to-wit, •"nor shall they have power . to condemn or appropriate private property.", Since -The power to, acquire -rights-of-way by purchase, lease, or otherwise, is not eiccepted from the general powerS granted, it follows that a foreign corporation may exerCrse 'such p w er. ,Tfte privilege . granted a foreign corpOration. to do business in this . State would be prac--if it were restricted from doing the act, whieh Was necessary to the. Prosecution_of that business; and, as it is' a necessary incident to the business of com-
1040 PATTERSON ORCHARD CO. V. SOUTHWEST [179 ARKANSAS UTILITIES CORP. panies.engaged in the transmission of electricity for public us0 to acquire rights-of-way, this authority must be deemed to have been granted under its general powers, unleSs expressly or by necessary implication prohibited in terms expressed in the.Constitution, and which it does riot ao. We therefore conclude from the language of § 11, ar • ticle lz r , yi t t he kJ () n s • t u t ' a o n o, — A r–ansas, supra, that the appellee, the legality of whose corporate existence is not questioned, under the terms of its charter had the Power to condemn the right-of-way over the , lands of appellant and to lease its rights so s acquired to a foreign cOiporation, and we can see no reason for a denial o rf this right, although it might have been that it was cre , a ..„ t ed, among other things, for the purpose of acquiring that right'for the benefit of a foreign iborporation doing business in, this State. If that corporation could acquire a right-of-way by purchase, it certainly could do the .same by ay.other method, unless such method was prohibited, and the _only method which may , appear to be prohi,bited (but 'which We do not now slecide) ,is that it might noti acquire the right-of-way by the exercise of the pbwer of eminent doinain. The conclusion we have ,reached appears to us to be supported by the authorities hereinbefore cited. We therefore hold that a domestic corporation, the business of which, as generate and transmit ele -expre . ssed in its charter, is to ctricity • for public use, May lease the right-of-way secured by it to a foreign corpora-tien engaged ,in . similar business, Which has complied with,the lnws of this State and is . doing buSiness therein. And the . act • f such domestic corporation in secnring such right-of,way by the,exercise of . its power of eminent domain cannot be questioned, except for fraud shown, although the principal motive for its , incorporation was to secure the right-of-way for such foreign corporation, which had been unable to secure it for itself, even when the incorporators cf _the .domestic _corporatiOn were pm-ployees of , and the greater part of its capital , stock immediately transferred to said foreign corporation. There
ARK.] PATTERSON ORCHARD CO. v. SOUTHWEST 1041 ARKANSAS UTILITIES CORP. are, perhaps, some unusual circumstances connected with this case, but it nowhere appears that the appellant has been defrauded in any way. The Southwestern Gas & Electric Company merely resorted to a praper legal device to obtain the right-of-way which it thought necessary for the conduc t of its business and which it had been unable to obtain by any other method from the _appellant. 2. Was the purpose for which the right-of-way was sought to be condemned across the appellant's orchard - one to serve a private use and not a public use? The learned chancellor, on this proposition, made a specific finding of fact in the decree rendered by him as follows: " The erection of the transmission line on the right-af-way in controversy will serve a public need and purpose either in fhe hands of the plaintiff in this suit or the Southwestern Gas & Electric Company." This is a question of fact which has been determined adversely to the contention of the appellant, and which must be sustained, unless it is shown that it is contrary to the clear preponderance of the testimony. It is conceded by the appellee that the right of . eminent domain could not be exercised if it is shown that it is being fraudulently used to take private property for a private use instead of a public use. But it is contended by it, and we think properly, that nowhere in tbe testimony in this case is there any such showing of fraud intended or practiced. It may be true thht the sole use to- which the appellee seeks to put the property condemned is for the benefit of the Southwestern Gas & Electric Company, but, as that company* is extensively engaged in the generation and transmission of electricity for public use, this, of itself, in our opinion, is sufficient to show that the use intended was a public use, and, while the principal immediate purpose was to serve the Standard Pipe Line _Company and the AMerican Cement Company, it is also apparent that, the increasing needs of the public made necessary the erection of a -high voltage power line, and _that the line in controversy is used and operated as a part of the transmission line of the Southwestern Gas & Electric Company,
1042 PATTERSON ORCHARD CO. V. 'SOUTHWEST [179 ARKANSAS UTILITIES CORP. and is serving a large number of the citizens of this State. As before observed, this is a question of fact which has been found by the chancellor, and which we think is not against, but supported by, the preponderance of the testimony, and the cases cited by the appellant are not applicable to the facts disclosed in this record. 3. Was the right-e r cOught to be condemned necessary in order to enable the appellant, or its lessee, to perform their functions and duties to the public? This also is a question of fact upon which the chancellor has passed, and we find no evidence that would warrant us in holding that the decision of the chancellor was not correct. It is true the Southwestern Gas & Electric Company owned and operated a line near the point where the lands in question' were taken, of the capacity of 33,000 volts, but the mere fact that it was going to a great expense in doubling the capacity of that line is persuasive that that company at least thought that the new construction was necessary. We can see no reason why, in enlarging and relocating its lines, the said Southwestern Gas & Electric Company or its subsidiary corporation, appellee here, should be compelled to follow the old transmission line with its meanderings and angles, when, from the nature of the increase made in the transmission capacity, it was apparent that the old right-of-way and equipment were insufficient. While the Legislature has said that a right-of-way must be necessary for the exercise of the rights of the eorpotation taking it, the question of whether or not there was a necessity must necessarily be left largely to the discretion of the corporation itself, and, unless it clearly appears that such discretion has been abused and its actions arbitrary and to the unnecessary damage of property owners, the exercise of that discretion will not be disturbed. In this case, while it might have been, and perhaps was, more convenient for the gas and electric company to make some changes in the route followed, this alone would not be a warrant for holding that its action in condemning the right-of-way in question was. an unnecessary use of the power exer-
ARK.] PATTERSON ORCHARD 'CO. v. SOUTHWEST 1043 ARKANSAS UTILITIES CORP. cised by appellee corporation for its benefit. It is our opinion that the decree of the chancellor in this particular was correct. 4. Was the chanoery court correct in decreeing. to appellee a fee simple title in and to the strip of land across the orchard of appellant? The appellant contends, and the appellee seems to admit, that the chancellor by his decree divested the fee simple title in and to the sfiip of land taken across the land of appellant from the appellant and vested it in the apPellee. We have examined the decree, and are unable to discover that the chancellor has rendered any such decree. In the_ amendment to the complaint it is alleged by appellee that the only use , it has for the right-of-way is that it might have the right-4 ingress and egress for the men and equipnient used in the construction and maintenance Of the transmission line, and that it would not be necessary to Cut and remove any peach trees, and that the Cultivation and use of said land by the appellant need not be interfered with in any manner except in so far as the presence of said poles on said land would interfere with - same, and, after -the onstruction of the line, appellee would not have occasion, except in some unforeseen emergency, during the life of the poles (which was estimated to be 'from fifteen to twenty years), to enter upon the land, other than to send one of its men on foot along the transmission line to inspect same about twice a month: but it alleged that it desired the exclusive use of all appellant's land if it had to pay the full value of same for damages for • the • right-of-way acquired. . In the decree the court merely held, in the declarations made preliminary to the decree, proper, "that the plaintiff should be granted the right .to condemn the right-of-way as prayed for in the complaint, upon paying to the defendant damages in the sum of $1;000 on account of ;the taking of said right-of-way." Following that, the right-of-way is described, . and then comes the decree proper, which is as follows: "It is therefore by the court considered, ordered and decreed that the plaintiff. be . and
1044 PATTERSON ORCHARD CO. v. , SOUTHWEST [179 ARK,iNSAS UTILITIES CORP. it is he -reby granted the right-of-way as hereinbefOre described across the land§ .of defendant, for the purpose of constructing, maintaining and operating said transMiSSion line, conditioned, however, upon the payment to the , defehdant by the plaintiff, within thirtY days from 'this date, '(of) the sum of $1,000, covering all daniage sus-• ' Lained by the defendant on account of t h e 1-.1zi iig (If Qnid -right-of-way by the plaintiff." By this decree an ease- M • „ e n . t only created, and the appellee is necessarily •ranted the exclusive possession of the 'property to the extent that such possession is necessary for the erection, : operation and maintenance of its line, and to no other or -greater. extent. By admissions of the •appellee in its amended ,. answer, it is shown that . the exclusive possession •granled ivas only necessary for the time during the ctual erection of the line, or , in the case of some unfore-iseen; emergency, and that the extent , of the possession .absolutely. necessary would be only for tbe purpose of Occasional , trips of inspection by its . employees. In no case , pan , the fee simple title in its true sense be .vested in. the ;corporation exercising the right of eminent do-,main,• for, at. whatever time the purpose 'for which the right-of-way was taken had been accomplished and its use terminated, the possession and all other incidents of ownerSbip would revert to the original owner. It is true, the neceSSary uses for a parcel of land condemned May be :of suCh nature as to preclude any possession 'except that Of the party exercising the iight to cohdemn, and to that extent an• estate in the nature of a fee wonld be acquired ; as, for instance, a railroad corpOration might dondemn a plot of ground for a. depot. The purpose for Which this land Would be used would be such that the oWner 'could not 'exercise any possession over it that w-Ofild chns s istent, and not interfere, with the rights of thei"ailioàd Company, so that it Would necessarily have the excluSiv'e pOssession for all purposes. But in all other cases, except such as of the same nature of the pos-- session stated juSt above, the owner would have also the
Is ;RE.] PATTERSON ORCHARD CO. V. SOUTHWEST 1045 ARKANSAS UTTiaTIES ,OORP. right • • tO the posS • e ss • i on, subbidinate to the paraMmint 156§seS§ibri a the cblideninor, ana mikht exenCiSe anY and all rights of ownership, ekcept uh as Were incOn§i§tent, 'and an interference; -With the eaSerhent granted. - In the inStänt' ca g e the aPpl ellee" ha§ the exchiSiVe pOs§es§iOn Of the strip Of land taken for all purPo§es riecesary tb carry intO effect and' ina,iritain'tfie irari§- )hisSibn line, and tb no other eitent. Therefore the aPpellant Still and does haVe the right tb . 'enter upon the §ame at all reaSonable tithes' and . for All reasofiabl6 inir-poSes nOt inconsistent, Or iriinterferenCe, * . ith, the rights Of the aPtiellee. Appellant 'MaY -' COntinne to grovY his ijeaCh trees, miltivate them, And gather the fruit, so king a§ it . doeg ndt interfere with the PrOpertY Of ihe aPPellee or its emplOyees in the performance of their legitimate duties. The appellee contends that it should not.be charged with . the full value of the land actually taken, but it has Cited a sufficient aliSwer to that cblitentiOn, namely, "the reniedy in such caseS IS to Condeffin nO more than it needs." Ry. v. Qo'inbs, -51 Ark. 324-328, 11 S. W. 418. This court has reCOgniZed in a ninyiber of cages fhat, in the acqUirenient Of a right-Of-way, nothing is obtained save an ea. Oment, and We 'see no reason to now hOld " other-Wise. See Ry v tO4h6:9,..4upra; Baiicioil, Y. Ark. Power & Light Go., cbate, 154. 5. Was the damage .aWarded ' th , e- aPpellant quate? The appellant insists that the entry made npon land and the erection of the transinission line aerbSs it was unlawful, and that the iniprovement inured . -tO Its Benefit, and ,therefote, in awarding . the damages,_ the Court shOnld haire aieertained the valne of the Whole line as constructed on apPellant's land, and aWarded.rthat a'inount in addition to the other dainages . given. We think the position of the apPe i lla'nt is untenable. -While the line may have been erected . WiihOtit . Snfficient : Authority At that time (which we . do not here decide), still, in mir opinion, this is a matter, if appellanf is entitled -to
1046 PATTERSON ORCHARD CO. v. SOUTHWEST [179
ARKANSAS UnLITIES CORP. damage on that score, in which its rights may be fully protected in a proper proceeding, and it is not entitled in this case'to the damages claimed. The appellee, on its cross-appeal, also complains of the award of damages made by the court, on the theory that the same were excessive, and not warranted by the testimony. There were about three acres of land actually taken in the right-of-way, and, without discussing in detail the testimony as to its value and the consequential damage to the orchard of appellant as a whole, we think it is sufficient to sustain the finding of the chancellor; and, as the appellee is entitled to the full value of the three acres. taken and such damage to the remainder of the orchard as might be sustained by reason of the erection of the transmission line across same, we think, under all the circumstances in the case, that the finding of the chancellor is not unreasonable or against the clear preponderance of the testimony. 6. On its cross-aPpeal the appellee asks us to decide the question as' to the right Of the .Sonthwestern Gas & :Electric Company, to condemn the right-of-way in controversy. Inasmuch as the Southwestern Gas & Electric Company is no longer a party to this suit, we think that question is not properly presented, and, as its decision is not necessary for the decision of this case, we epressly refrain from passing upon that question. . There remains but one patter of which the appellant complains, namely, that the. chancellor abused his discretion in adjudging the costs against it. It is onr opinion that § 3999 of Crawford & Moses' Digest does not limit the discretioh of the chancellor, for in that section the deposit is "to pay the oWners the amount assessed and such costs as may, in the discretion of tbe court, be adjudged against it." We think the statute leaves the discretion just where it found it, and we cannot say that any abuse of that discretion has been made in this case. Doubtless the chancellor had complete knowledge& of all the circumstances surrounding the
ARK11 1047 facts in the case, and perhaps . thought the appellant had been given a liberal amount of damages, and thatit would be fair to compel it to pay the costs. . As we view this case and the decree rendered in the .court below,- we are of the -opinion that the decree is in conformity with the conclusions we have reached, and it is therefore in all things affirmed.
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.