Morgan v. Des Moines & St. L.R. Co.

Decision Date23 October 1884
Citation21 N.W. 96,64 Iowa 589
PartiesMORGAN v. THE DES MOINES & ST. LOUIS RAILWAY CO.; LEAS v. THE SAME
CourtIowa Supreme Court

Appeal from Warren Circuit Court.

THE plaintiffs are lot owners in the city of Des Moines, and claim to have sustained damages by reason of the construction of the defendant's road on a street on which their respective lots abut. The plaintiffs instituted proceedings for the assessment of their respective damages by commissioners. From the assessment in each case both parties appealed. Both cases were tried to a jury. In the former case there was a verdict for the plaintiff, and judgment was rendered thereon. In the latter there was a verdict for the defendant, and the court set the same aside as being contrary to the evidence and instructions of the court. The defendant appeals in both cases.

REVERSED.

Parsons & Runnells, for appellant.

Barcroft Gatch & McCaughan, for appellees.

OPINION

ADAMS, J.

These cases are submitted together as involving the same questions of law.

It is insisted by defendant that the commissioners had no jurisdiction to assess the damages, if any, in these cases and that it follows that the circuit court had no jurisdiction to entertain the appeals. In support of this position they cite Mulholland v. D. M., A. & W. R. Co., 60 Iowa 740, 13 N.W. 726.

The plaintiffs contend that, while it might be true that the commissioners would not have jurisdiction to assess such damages without the consent of the railroad company, yet that such consent was given, the company merely providing that it should not be estopped from insisting that the plaintiffs were not entitled to damages in any form under the law. The consent is clearly enough shown. Whether it was sufficient to confer jurisdiction is a question not free from difficulty, and one upon which we might not be agreed. But our view of the case is such that we do not deem it necessary to determine it. For the purpose of the case it may be conceded that the commissioners would have had jurisdiction under the consent given to assess the damages, if the plaintiffs had been entitled to damages under the law. But we are agreed that they were not entitled to damages.

The complaint in each of these cases arises out of the fact that the company's road crosses a street upon which the plaintiffs' lots abut. The plaintiffs rely upon section 464 of the Code.

It is to be observed, however, that the crossing is several feet distant from the lots, and the plaintiffs' rights are the same (except in regard to amount of damages sustained) as those of other persons who own lots abutting on the street several rods or blocks distant from the crossing.

The question presented must be determined by a construction of the statute above cited. The statute provides that municipal corporations "shall have the power to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys and public places, but no railway track can be thus located and laid down until after the injury to property abutting upon the street, alley or public place, upon which such railway track is proposed to be located and laid down, has been ascertained and compensated in the manner provided for taking private property for works of internal improvement, in chapter 4 of title 10 of the Code of 1873."

The discussion in this case has taken a wide range. It is seldom that a question of mere construction is presented to us with more fullness of learning and suggestion. We do not, however, deem it necessary to follow the counsel through all the considerations presented. We feel controlled by two or three of them, and these lie upon the surface, and can be stated in a few words.

The construction contended for by the plaintiffs would, in some cases where a railroad crosses all the streets of a city running in a certain direction, give a right of action to all the lot owners in the city. This would be so where all the lots of the city abut on those streets. It is true that if the city were very large, and some of the lots very remote the injury to some of the lots...

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3 cases
  • Morgan v. Des Moines Union Ry. Co.
    • United States
    • Iowa Supreme Court
    • April 13, 1901
    ...the city, which is a party defendant, assents to the tracks as laid, and plaintiff's property does not abut thereon. Morgan v. Railway Co., 64 Iowa, 589, 21 N. W. 96. There is but one other matter connected with the Fourth street crossing, and that is the claim that the grade of the street ......
  • Morgan v. Des Moines
    • United States
    • Iowa Supreme Court
    • October 23, 1884
  • Morgan v. Des Moines Union Railway Co.
    • United States
    • Iowa Supreme Court
    • April 13, 1901

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