Marling v. Burlington, C. R. & N. R. Co.
| Citation | 25 N.W. 268,67 Iowa 331 |
| Court | United States State Supreme Court of Iowa |
| Decision Date | 23 October 1885 |
| Parties | MARLING v. BURLINGTON, C. R. & N. R. CO. |
Appeal from Johnson district court.
This is an action by which the plaintiff seeks to recover damages for an alleged trespass upon certain lands. There was an answer and an amendment thereto in the nature of a cross-petition in equity. A trial was had to the court, and a decree was entered for the defendant. Plaintiff appeals.Milton Remby and L. W. Clapp, for appellant, Thomas Marling.
Boal & Jackson, for the Burlington, C. R. & N. R. Co.
The plaintiff by his petition claims that in October, 1879, the defendant wrongfully, unlawfully, and without permission of plaintiff entered upon and took possession of a strip of land 100 feet wide running through plaintiff's farm, and constructed a railroad track upon the same, and is now operating a railroad thereon, and he demands a judgment for $1,200 for said wrongful trespass and injury. The defendant by its answer admits that it is in possession of the land, but claims that such possession is rightful for the reason that in the year 1867 a corporation known as the Iowa Northern Central Railroad Company, organized for the purpose of building a line of railroad from the city of Keokuk, Iowa, through the counties of Lee, Henry, Washington, and Johnson, surveyed its line through the lands of the plaintiff, and upon the 100 feet described in plaintiff's petition, and applied to plaintiff to purchase the right of way therefor, which was refused; that thereupon said company caused a sheriff's jury to appraise the damages resulting from the taking of said land, and that the compensation to which plaintiff was entitled was assessed by said jury at $700, which sum was paid to plaintiff in August, 1867, and that said company then entered upon said premises and constructed a road-bed thereon; that in 1879 the Iowa City & Western Railway Company, having succeeded by purchase to all of the rights of the Iowa Northern Central Railroad Company, constructed thereon the road of which plaintiff complains; that said Iowa City & Western Railroad Company applied to plaintiff for an instrument of release of any claim he might have in said land; that it was then agreed between the parties that said railroad company should build a bridge at such an elevation as to permit plaintiff's stock to pass under said railroad track, and in fencing its right of way it should place the fence not to exceed 25 feet from the center line of its track, along the west side thereof, from the north line of plaintiff's land to the south side of what was then the garden about plaintiff's house; that in consideration of this agreement to bridge and fence as stated plaintiff consented to release any and all right he might have in any part of said 100 feet by reason of lapse of time and non-user; that the said company, relying upon said agreement, constructed the road and the underground pass, and in so doing expended large sums of money; that thereafter the said Iowa City & Western Railway Company leased the said road to the defendant.
When the case was called for trial, leave was granted to the defendant to amend its answer. An amendment was filed in the nature of a cross-petition in equity, which, in addition to the averments of the original answer, set forth that the sheriff under whom the condemnation was made in 1867 died long since, and that defendant has made diligent efforts to procure the proceedings of said condemnation; that the same have never been recorded, and cannot now be found; that the defendant is entitled to have its right and title as lessor ascertained, and quieted as against the plaintiff's claim of title in the land; and praying that the Iowa City & Western Railway Company be decreed to be the owner of said right of way, and that this defendant as lessee is entitled to the occupation thereof, and to have such rights fully and forever quieted as against any and all claims of plaintiff. The plaintiff moved to strike the cross-petition from the files because filed without leave of the court, and because it was not filed until the cause was reached for trial. The motion was overruled. Thereupon the plaintiff demurred to the cross-bill, and the demurrer was overruled. Afterwards the plaintiff replied to the answer and cross-bill, in which he denied that any condemnation proceedings were had, and pleaded that the road was abandoned by the Iowa Northern Central Railroad Company, and that the plaintiff was in the open, notorious, and adverse possession of said right of way, under color of title and claim of right, for more than...
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