{
  "id": 8719205,
  "name": "St. Louis Southwestern Railway Company v. Wallace",
  "name_abbreviation": "St. Louis Southwestern Railway Co. v. Wallace",
  "decision_date": "1950-05-08",
  "docket_number": "4-9190",
  "first_page": "278",
  "last_page": "280",
  "citations": [
    {
      "type": "official",
      "cite": "217 Ark. 278"
    },
    {
      "type": "parallel",
      "cite": "229 S.W.2d 659"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "118 S. W. 705",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "90 Ark. 178",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1513906
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/90/0178-01"
      ]
    },
    {
      "cite": "202 S. W. 830",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "133 Ark. 589",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1575106
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/133/0589-01"
      ]
    },
    {
      "cite": "288 S. W. 932",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "172 Ark. 390",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1407818
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ark/172/0390-01"
      ]
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  "analysis": {
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  "last_updated": "2023-07-14T21:48:24.265381+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "St. Louis Southwestern Railway Company v. Wallace."
    ],
    "opinions": [
      {
        "text": "Holt, J.\nAppellees, owners of 11 acres of land with a dwelling thereon adjoining appellant\u2019s right-of-way, brought this suit to recover damages in the amount of $1,000 for the closing, or obstructing, of a road crossing-over appellant\u2019s railroad and right-of-way leading to ap-pellees \u2019 property in the town of Buckner, Arkansas. Appellant denied any liability. On a jury trial, and at the close of all the testimony, the court, on its own motion, and over appellant\u2019s objections and exceptions, instructed the jury, as a matter of law, that from the evidence adduced, appellees had, in effect, by long continued adverse use of the crossing in question, acquired a prescriptive right in said crossing.\nThe Instruction (No. 1) contained this recital: \u201cGentlemen of the Jury, this suit is brought by the plaintiffs against the defendant, railroad company, for what the plaintiffs allege was the wrongful act of the railroad company in making unfit for use a certain crossing that had been used by the plaintiff and his tenants and others desiring to use it for a long period of years. There isn\u2019t any evidence that it was a public crossing as the term is commonly used or that it was a private crossing as the term is used by the railroad company, but all the evidence is to the effect that this place on the railroad right-of-way was usable by the plaintiff and by his tenants and by others desiring to go across the railroad at that point for a long p'eriod of years, and that, beginning in 1922 or thereabouts, the railroad company for more than twenty years has maintained that spot as a crossing. . . . That presents an issue to the court as to whether or not this suit could be maintained by the plaintiffs. The defendant, railroad company, has defended the suit so far as that feature is concerned on the ground that such use was with its permission, and it, therefore, could withdraw that permission at any time it saw fit. The plaintiffs contend ... in view of the fact there was no other means of ingress and egress to such premises, the plaintiffs\u2019 sole and only method of going to and from that place is across this place, the court is inclined to the view that the plaintiffs are entitled to recover in this case.\u201d\nFollowing this instruction, the court proceeded to submit the question of the amount of damages, only, for the jury\u2019s determination.\nThe court erred in giving Instruction No. 1, above. It appears undisputed that the town of Buckner had never dedicated any street over this crossing. Appellees \u2019 use was not based upon any consideration. They did not claim any statutory right to its use under Ark. Stats. (1947), \u00a7 73-621, or \u00a7\u00a7 76-110-11.\nWe do not detail the testimony. It suffices to say that there was evidence on the part of appellant tending to show that the use of this crossing, by appellees and the public, was permissive only, and on the other hand) evidence on the part of appellees of its adverse use for more than seven years or that they had used it as a matter of legal right and not as a matter of permission. This was a jury question.\nThe rule is well established that \u201cpermissive use cannot ripen into a legal right merely by lapse of time,\u201d McGill v. Miller, 172 Ark. 390, 288 S. W. 932.\nWe said in Britt v. Berry, 133 Ark. 589, 202 S. W. 830: \u201cThe rule is that where the entry is permissive the statute will not begin to run against the legal owner until an adverse holding is declared, and notice of such change is brought to the knowledge of- the owner. \u2019 \u2019\nOn the other hand, it is also well established that \u201cthe statute of limitations operates against railroad corporations whose lands are held adversely as well as against individuals; and this applies to the right-of-way.\u201d (St. Louis & San Francisco Railroad Company v. Ruttan, 90 Ark. 178, 118 S. W. 705.)\nFor the error indicated, the judgment is reversed and the cause remanded for a new trial.",
        "type": "majority",
        "author": "Holt, J."
      }
    ],
    "attorneys": [
      "Shaver, Stewart & Jones, for appellant.",
      "R. T. Boulware and J. W. Patton, Jr., for appellee."
    ],
    "corrections": "",
    "head_matter": "St. Louis Southwestern Railway Company v. Wallace.\n4-9190\n229 S. W. 2d 659\nOpinion delivered May 8, 1950.\nShaver, Stewart & Jones, for appellant.\nR. T. Boulware and J. W. Patton, Jr., for appellee."
  },
  "file_name": "0278-01",
  "first_page_order": 302,
  "last_page_order": 304
}