41 Iowa 297 (Iowa. 1875), Rodemacher v. The Mil. & St. P. R'Y Co

Citation:41 Iowa 297
Opinion Judge:DAY, J.
Party Name:RODEMACHER v. THE MIL. & ST. P. R'Y CO
Attorney:Thomas Updegraff, for appellant. Boulton & Duncan, for appellee.
Court:Supreme Court of Iowa

Page 297

41 Iowa 297 (Iowa. 1875)

RODEMACHER

v.

THE MIL. & ST. P. R'Y CO

Supreme Court of Iowa, Des Moines

December, 1875

Page 298

[Syllabus Material]

Page 299

Appeal from Floyd Circuit Court.

THURSDAY, OCTOBER 7.

THE petition of plaintiff claims one hundred and fifty dollars, on account of damages alleged to be done his fences and timber from a fire started by an engine on defendant's road.

The answer, amongst other defenses, alleged that in January, 1868, there was incorporated under the laws of the state of Iowa, a company known as the McGregor & Sioux City railway company. That during the year 1868 and 1869 said corporation constructed the road near which the injuries occurred. That said corporation procured from the then owner of the tracts of land upon which the property alleged to have been injured and destroyed was situated a strip of land one hundred feet in width, for the location and operation of the road, and that the McGregor & Sioux City railway company in 1869, conveyed by deed to defendant.

The plaintiff demurred to the count of the answer setting forth the above defenses, and the demurrer was sustained. The cause was then submitted to the court upon the following agreed statement of facts: "The plaintiff owns the N. E. 1/4 of the N. E. 1/4, and S. E. 1/4, of S. E. 1/4, section 1, all in town 95, range 15, and, on the 11th day of October, 1873, had the same fenced and improved with an ordinary fence; outside of his fence was open prairie and timber land belonging to others, and the ordinary and natural growth of grass and weeds standing thereon, dry and dead, as grown, and on the land on which the fence was situated. The railroad track of defendant passes along the north line of sections 1 and 2, town 95, range 15. The fire started in dry grass accumulated near the end of the ties of said track about the center of section 2, and ran out across the railroad land, or right of way, and burned out toward the center of said section 2, and then angling across section 1 to plaintiff's farm, through the dry grass aforesaid, where the injury complained of was done. The fire originated from, and by means of a passenger train going west on said railroad track, and operated by said company, and the damages done were one hundred and twenty-five dollars."

The court thereupon rendered judgment for plaintiff for $ 125.00 and costs. Defendant appeals.

AFFIRMED.

Thomas Updegraff, for appellant.

A general incorporation law is general only in the sense that it is open to all who desire to avail themselves of its provisions, but it constitutes a special charter to each body organized under it. (State Bank of Ohio v. Knoop, 16 How. 369.) Every valuable privilege given by the charter which conduced to the acceptance of it, is a contract which cannot be changed by the legislature where the power to do so is not reserved. (Dodge v. Woolsey, 18 How. 331.) The charters of railroads and similar corporations constitute as between them and the state contracts, and any essential alteration in them, made after acceptance and expenditure of money under them, is void. (3 Pars. on Con., 6th ed., 632; Angell and Ames on Corp., § 767; Cooley on Const. Lim., 273.) Sovereignty in government has no existence in fact. (1 Dana 500.) The police power of the state cannot be exercised to violate contract obligations, but only to prevent unnecessary injuries. (Cooley on Const. Lim., 572.) It may well be doubted whether that is a proper police regulation which imposes a new obligation for the benefit of others, upon a party guilty of no neglect of duty. (Iowa 581.) Where similar statutes have been sustained--in Maine and Massachusetts,--an insurable interest is given to the railroad companies, and it has been held that the statute does not apply to property, which in its nature is not capable of insurance. (1 Redf. 479; Pierce on Am. R. R. L., 319, 37 Me. 92.) Every alteration of a contract, however unimportant, impairs its obligation. The degree of impairment is immaterial. (4 Wheat 518; 16 Wall 314; 10 Barb. 87; 18 Id. 585; 21 Id. 499; 21 N. Y., 1; Washington Bridge Co. v. State, 18 Conn. 53; Bailey v. R. R., 4 Harrington 389; 13 Am., L. R. (N. S.) 174; Com. v. Penn. Canal Co., 66 Pa. 41; 5 Am. R., 329, and cases cited.) A railway company, by its contract securing right of way, acquires the vested right to construct and operate its railway in a careful and proper manner over the premises affected, subject only to liability for the negligent or improper exercise of the right. (2 Iowa 288.) The exposure to destruction by fire of property adjacent to a railway forms a proper element in the estimation of damages. (1 Redf. on Railways, 303-5; 1 Foster 359; Snyder v. W. U. R. R., 25 Wis. 60; W. & R. R. Co. v. Stanford, 60 Pa. St., 374.) Railway companies, having acquired the right to the use of the right of way, cannot be again compelled to pay for that for which compensation has already been given. (Com. v. Essex Co., 13 Gray 239; Milliman v. O. & S. R. R., 10 Barb. 87; Marsh v. N. Y. & E. R. R., 14 Barb. 370; Toombs v. R. & S. R. R., 18 Id. 585.) One who could have prevented destruction of his property by burning the dry accumulations about it, or employing other means common with the owners of property similarly situated, is guilty of contributory negligence. (Kesee v. C. & N. W. R. R. Co., 30 Iowa 78; O. & N. W. R. v. Shanefeldt, 47 Ill. 497.) Whenever a new liability or right is created, and a new remedy provided, that remedy is exclusive. (3 Hill 38; 1 Hill. on Torts, 118-9.)

Boulton & Duncan, for appellee.

For all the purposes of this case the defendant stands in the position of a natural person. (Am. Law Reg., Vol. 13, 187; Charles River Bridge v. Warren Bridge, 11 Pet. 420; R. F. & P. R'y v. Louisa R'y, 13 How. 71; Turnpike Co. v. The State, 3 Wall 210; Boston & Lowell R'y v. Salem & Lowell R'y, 2 Gray 1; Ponchartrain R'y v. N. O. C. L. P. R'y, 11 La Ann., 253.) The police power of the state extends to the protection of all property within it. (Cooley on Const. Lim., 573.) In enacting the statute in question, the legislature has only re-asserted the common law; it has avoided all constitutional encroachments. (Lyman v. B. & W. R'y, 4 Cush 288; Norris v. Androscroggin R'y, 39 Me. 273.) Plaintiff was not required to burn the accumulations of grass and weeds to prevent the destruction of his property. (Kellogg v. C. & N. W. R. R., 26 Wis. 223.) Questions in a law case must be raised in the court below, to entitle them to consideration in the supreme court. (McNaught v. C. & N. W. R. R. Co., 30 Iowa 336.)

OPINION

DAY, J.

Page 300

I. This case involves the...

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