Ellsworth v. Chicago & Iowa Western Railway Co.
| Decision Date | 24 May 1894 |
| Citation | 59 N.W. 78,91 Iowa 386 |
| Parties | ELLSWORTH & JONES v. THE CHICAGO & IOWA WESTERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Emmet District Court.--HON. LOT THOMAS, Judge.
PROCEEDING to ascertain the damages caused by taking land of the plaintiffs for right of way purposes. There was a trial by jury and a judgment, from which the defendant appeals.
Reversed.
Soper Allen & Morling for appellant.
Nagle & Birdsall and J. G. Myerly for appellees.
In February, 1892, the defendant gave notice to J. H. Griffith "and all other persons having any interest in or owning any of" the northeast quarter of the northwest quarter the northwest quarter of the northwest quarter, the northwest quarter of the northeast quarter, the southeast quarter of the northwest quarter, and the southwest quarter of the northwest quarter, all in section 16, township 99, range 31 that it had located its railway over the land and desired the right of way over it, and that, unless the landowners should have the damages to be caused by taking the right of way appraised on or before the twenty-fifth day of March, the defendant would proceed to have them appraised on the twenty-second day of April. On the date last named, the defendant caused the damages to be appraised, and they were fixed at one hundred and thirty-five dollars. That sum was paid by the defendant to the sheriff on the tenth day of June, 1892. On the eighteenth day of May, Griffith and the plaintiffs served a notice of appeal from the assessment, and on the twenty-third day of August, 1892, the plaintiffs filed what is styled a "petition of intervention," in which they allege that they are nonresidents of Emmet county; that they were, and had been for more than ten months, the owners of the north half and the southwest quarter of section 16, township 99, range 31, and that it constituted one tract; that by reason of the location of the railway across the land, and the appropriation of the right of way, they had been damaged in the sum of two thousand dollars; that the only notice given to them of the assessment proceedings was one published in a newspaper in Emmet county, and that Griffith had no interest in the land. The jury in the district court fixed the damages of plaintiffs at the sum of eight hundred and fifty dollars.
1. The land was sold in the year 1891 by the auditor of Emmet county, in eighty acre tracts, to three different persons, one of whom was Griffith; but the contracts of purchase were assigned to the plaintiffs, and it was agreed, in open court, at the time of the trial, that they were then the owners of the land. It does not appear, however, that the defendants had any knowledge of the ownership of plaintiffs when the notice of appraisement was served. It was held in Birge v. R'y Co., 65 Iowa 442, 21 N.W. 767, that: A published notice to a person named, and "all other persons having any interest in or owning any of" the land described in the notice was not sufficient, as constructive notice, to charge an owner not named; but that if it actually notified him, and he appeared at the assessment, as he might be expected to do if properly notified, the object would be accomplished. It is not shown that the plaintiffs in this case appeared at the assessment, but they gave notice of appeal from it, and recognize it in their petition. The proceedings in the district court were, in all respects, conducted as though they had been parties to the assessment. They were, in effect, and for all practical purposes, substituted for Griffith, as the owners of the property. This proceeding was the one recognized by statute as the proper one for ascertaining the damages caused by the taking of the right of way. Daniels v. Railway Company, 35 Iowa 129. In view of these facts, it must be held that the rights of the plaintiffs are the same they would have been had they been duly notified of the assessment proceedings, and that, for the purposes of this appeal, they must be regarded as parties to those proceedings. The rights acquired by the defendant are the same they would have been had that been the case. See R'y Co. v. Patch, 28 Kan. 470. It is the general rule that the damages are to be assessed as of the time when the commissioners make their appraisement, if the company proceeds under the assessment with reasonable diligence, and that the values as they existed at that time are to control on appeal. Hartshorn v. R'y Co., 52 Iowa 613, 3 N.W. 648. See, also, Gear v. R'y Co., 20 Iowa 523; Noble v. R'y Co., 61 Iowa 637, 17 N.W. 26; Hayes v. R'y Co., 64 Iowa 753, 19 N.W. 245; Mills, Em. Dom., sec. 218.
The appellant contends that the district court erred in allowing the plaintiffs to prove the value of the land at the time of the trial in that cour...
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