Phillips v. Watson

• Decision Date: 18 March 1884
• Parties: PHILLIPS v. WATSON.
• Court: Iowa Supreme Court

63 Iowa 28

18 N.W. 659

PHILLIPS

v.WATSON.

Supreme Court of Iowa.

Filed March 18, 1884.

Appeal from Monroe district court.

In the month of August, 1882, defendant being in possession as lessee of a tract of land, on which he was engaged in operating a coal mine, instituted a proceeding under the provisions of chapter 34 of the Acts of the Fifteenth General Assembly, to have a public way established from a point on the Chicago, Burlington & Quincy Railway, over and across certain lands belonging to plaintiff, to his coal mine, and he gave notice of his intention to construct and maintain a railway on such way, for the purpose of reaching the mines on said tract of land, and of transporting the products thereof to market. The sheriff of the county appointed six freeholders of the county to inspect the real estate of the plaintiff, and assess the damages which he would sustain by the approximation. These appraisers met at the time appointed, inspected the premises, and assessed plaintiff's damages at $100, which amount the defendant paid the sheriff, and entered on the premises, and commenced the work of constructing on said way the grade for a railway. The plaintiff thereupon instituted this suit, for the purpose of having said condemnation proceedings declared null and void, and of enjoining defendant from constructing said grade, or occupying said proposed way with a railway, or for any other purpose. Plaintiff's petition was presented to the judge of the district court in vacation, who thereupon made on order for the issuance of a temporary injunction. After the writ was served on him, defendant filed his answer; also a motion to vacate the order allowing the temporary injunction, and this motion was also heard by the judge in vacation, being submitted on the pleadings and affidavits filed by the parties. The motion was sustained by the judge, and from the order sustaining the same plaintiff appeals.Lafferty & Johnson, Perry & Townsend, and T. M. Davenport, for appellant.

James Coen and Sloan, Work & Brown, for appellee.

REED, J.

Many separate objections are urged by plaintiff against the condemnation proceedings under which defendant claims the right to occupy the ground in question. But we think we may properly classify all these objections as relating either (1) to the mere regularity of the condemnation proceedings, or (2) to the right to condemn the ground at all for the purposes intended by defendant. The objections which, we think, relate merely to the regularity of the proceedings are that one of the appraisers appointed by the sheriff, and who acted in assessing the damages, was not qualified to act as such appraiser, being interested in a like question; that defendant's attorney was present with the appraisers when they were inspecting the premises, and made certain statements to them with reference to matters involved in the inquiry; and that the damages awarded by the jury were grossly inadequate. We dispose of all this class of objections with the suggestion that the matters involved in them do not afford the plaintiff any ground for relief in equity. The statute under which the proceedings were had gave him the right of appeal to the circuit court of the county, where he could have had the damages which he would sustain by the appropriation determined as in an ordinary action. And in this right of appeal he had an adequate remedy against any irregularities that may have occurred in the proceedings, or any injustice which may have heen done him in the award; and as he had personal notice of the proceedings, we think this remedy is exclusive as to all such matters.

2. The first objection urged against the right to appropriate the land to the use intended is that the statute under which the appropriation was sought to be made is in conflict with the constitution of the United States and of this state. The act in question is chapter 34 of the acts of 1874. It is entitled “An act authorizing the establishment of public ways to lands having stone and mineral thereon.” And it provides that any person owning or being in possession as lessee of any lands having any coal, stone, lead, or any other mineral theron or thereunder, may have a public way established over the lands of others, from any railroad or highway to any mine or quarry on said lands. It also provides that in case the owner of any lands necessary to be taken for such purpose refuse to grant the right of way, or if the person seeking to have such way established, and the owner of such lands cannot agree upon the compensation to be paid therefor, the sheriff of the county shall appoint six freeholders of the county, who shall inspect the premises and assess the damages which the owner of the land sought to be appropriated will sustain by reason of the appropriation thereof. The damages so assessed and all costs of the proceeding are to be paid by the person seeking to have the way established. And if the way, when constructed, passes through inclosed lands, he is required to fence it on both sides. And it is provided in the fourth section of the act that any person who has paid the damages assessed for a highway established under the act, may construct, use, and maintain a railway...