Ball v. Keokuk & Northwestern R'Y Co.
| Citation | 16 N.W. 592,62 Iowa 751 |
| Parties | BALL v. THE KEOKUK AND NORTHWESTERN R'Y CO |
| Decision Date | 21 September 1883 |
| Court | United States State Supreme Court of Iowa |
Appeal from Lee Circuit Court.
THE petition states that the plaintiff is the owner of certain real estate, and that defendant entered thereon without his consent, destroyed fences, committed waste, and has taken and appropriated a strip of land for right of way, and has constructed its road thereon, without having obtained the right to do so; wherefore a recovery is asked. The defendant pleaded an equitable defense, and alleged that in 1869 the plaintiff executed a contract in writing, whereby he agreed to convey the right of way over a portion of the premises described in the petition to the Keokuk and Minnesota Railway Company, and that, at the same time, Cassel, under whom the plaintiff claims, executed a similar contract, whereby he agreed to convey the right of way over another portion of the premises to the last named company. It is stated that the defendant has acquired all the rights of the Keokuk and Minnesota Company. As to another portion of the land, the defendant pleads and relies on an oral contract, under which plaintiff, for a named consideration, agreed to convey to defendant the right of way over the same.
The relief asked, in substance, is that the plaintiff specifically perform said contracts.
The court directed the equitable defense to be first tried, and found for the plaintiff. A decree was accordingly entered and defendant appeals.
AFFIRMED.
Anderson Bro's and Davis, for appellant.
D. W Sprague and Hagerman, McCrary & Hagerman, for appellee.
The written contracts under which the defendant claims are as follows:
"In consideration of the sum of one dollar, the receipt whereof is hereby acknowledged, we do hereby agree to convey to the Keokuk and Minnesota Railway Company the right of way for a double or single railroad track, not exceeding one hundred feet in width, the same to extend through lands as follows: * * * *, the same to be deeded to the aforesaid company on demand, after said road shall have been located through the said described lands."
The court ordered that defendant make a more specific statement as to when the road was located over the lands in question, and when a deed was demanded.
In compliance therewith, the defendant stated in an amended pleading that the "Keokuk and Minnesota R. R. Co. located its roadway over the lands described in the petition in the year 1869, and that in the month of August, 1880, a demand was made on the plaintiff that he execute a deed in compliance with his bond for a deed, which he refused to do."
Upon the trial it was "admitted that the road was located by the engineers of the Keokuk and Minnesota R. R. Co. in 1869." There is some evidence tending to show that there was a location made in 1870, but we think, under the statements made in the pleadings, and admissions on the trial, that we must, for the purpose of the case, hold that the road was located in 1869.
The plaintiff's action was commenced in October, 1880, but the answer of the defendant, pleading the equitable defense, was not filed until March 9, 1881. The demand for a deed was not made until more than ten years had passed after the road had been located. The plaintiff insists that the equitable defense is barred by the statute of limitations.
I. It is provided by statute that actions "founded on written contracts, * * * * and those brought for the recovery of real property, must be commenced within ten years" after the cause of action accrues. We think the cause of action stated in the answer as an equitable defense is based on and brought to enforce a written contract; but whether this is so or not is immaterial, for, if brought to recover an interest in land, it is also barred in ten years after the cause of action accrues.
The important inquiry is, therefore, when did the cause of action accrue? The deed was to be executed on demand after the location of the road. No cause of action accrued, it will be conceded, until after demand. But the demand should be made within a reasonable time. Ordinarily, what is a reasonable time must depend on circumstances. We have held that, where the right of action depends upon some act to be done by the plaintiff, he cannot, by failing to do such act, prevent the statute from running; as where the plaintiff had a right of action against a county for services performed, but before bringing it he was required to present his claim to the board of supervisors. Baker v. Johnson Co., 33 Iowa 151. Under the Revision, the purchaser at a tax sale was entitled to a deed three years thereafter. In Hintrager v Hennessy, 46 Iowa 600, the purchaser at a tax sale was entitled to a deed in December, 1864, but did not procure it until May, 1871, more than five years after the sale, which was the period of limitation for bringing the action, and it was held that the action was barred. It has been held, when a right of action depends upon a demand, that such demand must be made ...
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