Reusch v. Chicago, B. & Q.R. Co.

• Decision Date: 23 March 1882
• Citation: 11 N.W. 647,57 Iowa 687
• Parties: REUSCH ET AL v. THE C., B. & Q. R. CO.; LONG ET AL v. THE SAME
• Court: Iowa Supreme Court

11 N.W. 647

57 Iowa 687

REUSCH ET AL v. THE C., B. & Q. R. CO.; LONG ET AL v. THE SAME

Supreme Court of Iowa, Des Moines

March 23, 1882

Appeals from Des Moines District Court.

THESE causes are submitted together as arising upon substantially the same state of facts and involving the same questions of law.

The plaintiffs seek to enjoin the defendant from changing the course of a certain stream of water known as Hawkeye Creek. The defendant claims the right to change the course of the creek under chapter 191 of the laws of 1880, Miller's Code, page 357. The court dismissed the plaintiffs' petitions and they appeal.

AFFIRMED.

P. Henry Smyth & Son and T. C. Whitely, for appellants.

Hall & Huston and J. W. Blythe, for appellee.

OPINION

ADAMS J.

The defendant has operated its road over its present track for many years. The plaintiffs are the owners of a small tract of land adjacent to the defendant's right of way. Hawkeye Creek crosses this land, and then crosses the railroad track, and after flowing a certain distance (it does not appear how far), it crosses the track again at a point about six hundred feet from the first crossing and returns again upon the plaintiffs' land. Wooden bridges were constructed at the crossings. Having been in use for a long time they were becoming unsafe, and it had become necessary to construct new bridges, or to obviate the necessity of bridges by cutting a channel along the plaintiffs' land and turning the creek through it. The company elected to adopt the latter course. To enable itself to cut such channel it proceeded, under the statute above cited, and caused to be condemned a strip of the plaintiffs' land. It paid the damages assessed, cut the channel changed the course of the creek, took out the bridges and made a continuous embankment.

The plaintiffs contend that the defendant had no power to cause the land to be condemned; that the statute under which the proceedings were had is unconstitutional, and besides, that if it were constitutional, the case is not such a one as the statute contemplates. That part of the statute upon which the questions arise is in these words:

"SECTION. 1. In all cases where a railroad corporation, owning or operating a line of railroad within this State, would have the right, at this time, by procuring the right of way from the land-owner to dig a channel or cut a ditch in such a manner as to change and straighten the course of a stream too frequently crossed by its road, or to protect the right of way and road-bed, or promote the safety and convenience of the operation of the road, such railroad company may condemn the right of way as provided in the next section.

"SEC. 4. The true intent of this act is not to create in favor of a railroad corporation any additional right to divert a watercourse from its natural channel, but simply to give the right to condemn the land necessary for the right of way in all cases where, by conveyance to the railroad corporation, it would have the right to dig such channels or ditches.

Private property can be taken only for public use. The plaintiffs contend that the property in question was not taken for public use. They say that the evidence shows that it was taken merely for the private advantage of the defendant, it being less expensive to pay the assessed value of the land, and cut a ditch and straighten the stream, than to maintain two bridges.

It is not denied by the defendant that it was influenced by motives of economy, but it is insisted that the removal of the bridges, and construction of a continuous embankment, makes the road safer for the traveling public, and so it is said the use of the land taken is a public use.

Whether the road now is any safer than it was before is a question upon which the parties are not agreed; and we have to say that the question is not presented in such...