24 Iowa 455 (Iowa. 1868), The City of Clinton v. The Cedar Rapids & Missouri River Railroad Co.

Citation:24 Iowa 455
Opinion Judge:DILLON, Ch. J.
Party Name:THE CITY OF CLINTON v. THE CEDAR RAPIDS AND MISSOURI RIVER RAILROAD COMPANY
Attorney:Isaac Cook and A. R. Cotton for the appellant. W. E. Leffingwell, E. S. Bailey and M. H. Tyrrell for the appellee.
Court:Supreme Court of Iowa
 
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Page 455

24 Iowa 455 (Iowa. 1868)

THE CITY OF CLINTON

v.

THE CEDAR RAPIDS AND MISSOURI RIVER RAILROAD COMPANY

Supreme Court of Iowa, Des Moines

June, 1868

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          Appeal from Clinton District Court.

         TUESDAY, MAY 12.

         MUNICIPAL CORPORATIONS: POWER OVER STREETS, ETC.: RIGHT OF WAY ACT, ETC. -- This suit is brought by the city of Clinton in its corporate capacity. The petition, filed in 1867, alleges the incorporation of the city of Clinton by an act of the General Assembly, approved January 26, 1857; refers to the powers given to the city by the incorporating act over its streets and highways, and alleges that it has refused to grant the defendant's application to construct its road through its streets. It further alleges that the defendant, in 1864, attempted to build its road through certain streets of the city, and was enjoined as long as the causes stated in that petition should exist. It is also alleged, that, in 1859, the city council passed an ordinance prohibiting any "railroad company from constructing its track through or upon any street within the limits of the city, and from occupying the same for right of way or other railroad purposes," and expressly ordaining also that no "railroad company shall hereafter be permitted to construct its track across any alley, street or avenue in the limits of the city, at or near the grade of such alley, street or avenue, or otherwise than over or under the same; and any railroad company so crossing any alley, street or avenue, within the limits of this city, shall be required to provide, construct and maintain such abutments, bridges and other facilities for travel, as the city council shall determine."

         The petition alleges, that the defendant is a corporation created and existing for the purpose of building a railroad from Cedar Rapids, in Linn county (eighty-two miles west from Clinton), to Council Bluffs, on the Missouri river, and that the city of Clinton is not between the termini of said road. The petition also alleges, that, notwithstanding the special refusal of the city to grant the defendant the right to use its streets, notwithstanding the former injunction, and notwithstanding the ordinance of the city above referred to, the defendant, in August, 1867, entered upon certain streets of the city, and commenced to dig in the same, and to prepare the same for laying down thereon its road.

         The prayer is for an injunction to restrain the defendant from taking or using, for the purpose of its railroad track, any of the streets of the city. The answer admits that plaintiff is a municipal corporation, and that defendant is a private corporation as alleged, but denies that the only purpose of the defendant's existence and organization is to build a road from Cedar Rapids to Council Bluffs. The answer then sets forth, that by the amended articles of defendant's incorporation (amended in June, 1867), it is provided, that "Another portion or division of said road shall be built and operated from Pearl street, in Lyons city, to a point of intersection with the Chicago, Iowa and Nebraska railroad, within the corporate limits of Clinton city."

         The answer also alleges, that the Chicago, Iowa and Nebraska Railroad company has a line of road in operation from Clinton city to Cedar Rapids; that the defendant has in operation a road from Cedar Rapids to Council Bluffs, and that the proposed road from Lyons city (provided for in the amended articles of incorporation of the defendant) will form, when completed, one continuous line of railway across the State from Lyons city to Council Bluffs.

         The answer refers to the act of March 26, 1860 (Special Laws, 1860, p. 40), entitled, "An act to carry into execution the trust conferred upon the State of Iowa, in respect to the lands granted by an act of congress approved May 15, 1856, to aid in the construction of a railroad from Lyons city across the State of Iowa, and near the forty-second parallel, to the Missouri river;" and to the act of congress approved June 2, 1864, entitled, "An act to amend an act making a grant of lands to the State of Iowa," and approved May 15, 1856, and claims, that it is thereby made the duty of the defendant to construct a road from Pearl street, in Lyons city, to a point of intersection with the Chicago, Iowa and Nebraska railroad, within the limits of the city of Clinton.

         The answer admits the refusal of the city council, of the plaintiff, in May, 1864, to allow defendant to build its road upon any of the streets of Clinton. Admits the proceedings in the District Court, in 1864, by which defendant was enjoined from using the streets of the city "so long as the causes stated in said petition (filed in 1864) exist;" but denies that the same causes now exist, because, since that time, to wit, in June, 1867, the defendant's articles of incorporation have been amended as above stated, by which it has express power to build the proposed road. Denies the validity of the city ordinance of 1859, and says the same is in conflict with the laws of the State. Admits that it proposes to build said road, and to occupy so much of the streets of the city as is necessary, and no more, in order to intersect, as required, with the Chicago, Iowa and Nebraska railroad, within the corporate limits of Clinton city.

         The answer then sets up, that the route selected avoids, as far as practicable, the streets and public grounds of the city, and exhibits a diagram of the route; that, as to the location and construction of the road within the city, defendant is willing to be governed to a reasonable extent by the wishes of the city council; to conform as nearly as practicable to the grade of the streets, and to submit to all proper regulating ordinances; that the selected route does not pass through the populous and highly improved portions of the city, and that it is impracticable to build the road required by the act of 1860, without passing over some of the streets of the city of Clinton; that, as far as practicable, the route has been laid through private property in said city, and steps have been taken to procure the right of way; that it does not propose to occupy the whole length of River street, but that it cannot construct its line without passing over some part of it.

         The answer alleges, that if the city is entitled to damages under the right of way act (Rev. p. 218, art. 3), the defendant is willing to have the same assessed and paid to the city before constructing its road.

         This diagram shows, that the line adopted, as soon as it enters the corporate limits of Clinton city, instead of following and pursuing its course along River street, leaves that street (though the more direct and practicable route would have been to have kept upon it) and passes through private property, viz., blocks 2, 3, 4 and 5, near to and parallel with River street. As it leaves block 5, the line adopted starts on a curve toward the point of intersection with the Chicago, Iowa and Nebraska railroad, passing lengthwise on River street in front of one block only, which is subdivided into lots, and two small or fractional blocks, not platted into lots, as shown on the diagram, and which are, as stated in the affidavits, low and subject to overflow, "in consequence of which there is very little improvement in that part of the city. "

         On the filing of this answer, a motion was made by the defendant to dissolve a temporary injunction which had been issued. The motion specified the following grounds:

         1. The writ was improperly granted.

         2. The allegations of the petition are denied by the answer.

         3. The answer states facts in avoidance of the allegations of the petition, and shows cause for a dissolution of the injunction.

         This motion was supported by affidavits showing that the articles of incorporation of the defendant were amended in June, 1867, as set forth in the answer. And showing that the allegations of the answer as to the route selected within the limits of the city, were substantially true.

         The District Court refused to dissolve the injunction, upon the ground, that, as the judge understood the decision of the Supreme Court in Millburn v. Chicago, Iowa and Nebraska R. R. Co. (12 Iowa 246) -- from which, however, his own opinion differed -- "the right to construct a railway upon or over the streets of a city was dependent upon the consent of such city."

         The present appeal by the defendant, is from the order of the District Court refusing to dissolve the injunction.

          Reversed.

         Isaac Cook and A. R. Cotton for the appellant.

         The main question is, can the defendant construct its railroad within the corporate limits of Clinton city, without the consent of the city, it being admitted that the road, if built, must necessarily pass over streets and public grounds?

         The same question, stated in other words, is, has the legislature given to the municipality of Clinton such power that it can defeat the construction of a railroad required by public law and demanded by public utility?

         For the laws requiring this branch road to be built, and at the same time prescribing a penalty for not building it, see Laws of Iowa, 1860, p. 40; U. S. Statutes at Large, 1864, p. 98.

         The corporation of Clinton is a public municipal corporation, created for public purposes only, and can exercise no powers but such as are expressly granted by law, or such as are incidental to those expressly granted, and is always subject to legislative control. See act incorporating Clinton city, Laws of 1857, p. 132.

         This act...

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