Town of Alvord v. Great Northern Ry. Co.
| Decision Date | 19 February 1917 |
| Docket Number | 31402 |
| Citation | 161 N.W. 467,179 Iowa 465 |
| Parties | TOWN OF ALVORD, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Lyon District Court.--WILLIAM HUTCHINSON, Judge.
APPEAL from proceedings to condemn a strip of land from defendant's depot grounds as an alley. A directed verdict for defendant was returned, and judgment entered thereon. The plaintiff appeals.
Affirmed.
Simon Fisher, for appellant.
J. L Kennedy and E. C. Roach, for appellee.
The Great Northern Railway passes through the incorporated town of Alvord. A switching track is west of the main line, and the passing track east thereof. Both begin near First Street, which is between Blocks 12 and 19 of the town. The passing track extends to Fifth Street, and the switch track somewhat beyond. Blocks 2, 5, 9, and 12 are immediately east of the right of way, or depot grounds, the lots extending across the blocks somewhat diagonally, a little north of east, and being 140 feet long. The business houses and some dwellings are located on these lots. A resolution of necessity was adopted by the council of the incorporated town of Alvord, condemning a strip of ground in the right of way at the rear of and immediately back of these blocks, from First Street to Fifth Street, 1,320 feet long and 20 feet wide. Upon proper notice to the sheriff, the commissioners were appointed, and they assessed the damages to the railway company, consequent upon such taking, at $ 85 and that amount was paid to the sheriff by the incorporated town. The railway company appealed to the district court, and later filed written objections: (1) That the ground from which the proposed alley was to be taken was and had been for many years a part of the depot grounds of the company; (2) that the taking thereof would deprive the company absolutely of its property, which was necessary, as a portion of the depot grounds, to the proper discharge of its functions as a public carrier; and (3) that its use as an alley would be utterly inconsistent therewith, and for these reasons the incorporated town of Alvord was without power or authority to appropriate the strip of land in question for a public alley; and that, in any event, the damages fixed were totally inadequate. A demurrer thereto was overruled, and the incorporated town answered, denying each and every allegation of the objections, alleging that the damages awarded were adequate; that the company was not entitled to be heard on other questions raised; and that the taking of the strip of land would not materially interfere with the use thereof by the company. The evidence disclosed that the depot grounds were 250 or 300 feet wide, and extended the entire distance of the proposed alley; that there were no industries located on the passing track; that the elevator, stockyards, coal chutes and the like were on the west side of the main track along the switch track. The passing track is 12 or 13 feet east of the main track, and the distance from the passing track to the east line of the depot grounds is estimated to be from 71 to 88 feet. Some of the buildings on the lots face toward the west, and access thereto, and possibly to the rear of some of the buildings facing Main Street, along the east line of the blocks, was along the east side of the grounds. A lumber shed, a cement and lime shed, and the city jail, are located between the passing track and the strip of land proposed to be condemned, the ground being leased at a small rental. There is no laidout street on either side of the depot ground. The depot is located between Second and Third Streets, which extend easterly and westerly across the grounds. Such is the situation, as disclosed by the evidence.
I. Appellant first argues that the railway company may not question in this proceeding the power or authority to condemn. This court has held otherwise in numerous decisions, and among these, as directly in point, may be mentioned Waterloo Water Co. v. Hoxie, 89 Iowa 317, 56 N.W. 499, and Davis v. Des Moines & Ft. D. R. Co., 155 Iowa 51, 135 N.W. 356. The city or town council alone determines the necessity for a street or alley, but the authority of the council in behalf of the city or town to condemn is another matter. It may be challenged on appeal in the district court. See above decisions and others cited therein.
II. The evidence in behalf of the railway company disclosed that the standard width of the depot grounds on its lines of railway was 300 feet, and that this width was necessary in order to care for and properly transact its business as a common carrier. This evidence was undisputed, save as that adduced in behalf of the plaintiff tended to show the local situation, and that, at the present, the company might dispense with the use of the 20 feet in width. But the company, in determining the extent of depot grounds essential, was not limited to present demands alone, but might well anticipate the growth of the municipality and the development of the surrounding territory and the increasing facilities likely to be demanded for the handling of freight. Appeal of Pittsburgh Junction R. Co., 122 Pa. 511 (6 A. 564); Western Union Tel. Co. v. Pennsylvania R. Co., 120 F. 362. Moreover, the determination of the amount of land essential for such purpose is largely within the discretion of the managers of the railway company, and the courts are reluctant to interfere, save when clearly beyond the just necessity for its use in performing its duties as a public carrier. Eldridge v. Smith, 34 Vt. 484; Dietricks v. L. & N.W. R. Co., (Neb.) 13 N.W. 624; Proprietors of Locks, etc, v. Nashua & Lowell R. Co., 104 Mass. 1. Nothing in the record tends to indicate such a situation, nor that the company has overestimated the extent of ground which is now and will in the future be required for depot purposes. For all that appears, the commerce over this line of railway and the transportation interests of the municipality and contributing territory have assumed nothing like the proportions which may be anticipated in the near future. We do not think it can be said from the record before us that the company is making use of more ground than it may properly appropriate for railroad purposes.
III. Whether the company holds title by condemnation or under deed of conveyance is quite immaterial; for in either event its use is the same as are the interests of the company therein. Brown v. Young, 69 Iowa 625, 29 N.W. 941; Mattice v. Chicago, G. W. R. Co. 130 Iowa 749, 107 N.W. 949; Watkins v. Iowa Cent. R. Co., 123 Iowa 390, 98 N.W. 910; Morgan v. Des Moines Union R. Co., 113 Iowa 561, 85 N.W. 902.
IV. The next question is whether the city council of Alvord was authorized to condemn for use as an alley, a strip of land which had previously been condemned or appropriated for public purposes. In Chicago, M. & St. P. R. Co. v Starkweather, 97 Iowa 159, 66 N.W. 87, the power of the city or town to extend a street...
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