Bennett v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 28 April 1896
• Citation: 73 F. 696
• Parties: BENNETT v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

73 F. 696

BENNETT v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, N.D. Iowa, Eastern Division.

April 28, 1896

Lyon &amp Lenehan and Henderson, Hurd, Daniels & Kiessel, for complainant.

W. J Knight, for defendant.

SHIRAS District Judge.

The town of Dubuque was originally laid out under the provisions of an act of congress approved July 2, 1836, which, among other requirements, directed:

'That a quantity of land of proper width, on the river banks, at the towns of Fort Madison, Bellevue, Burlington, Dubuque and Peru, and running with said river, the whole length of said towns, shall be reserved from sale (as shall also the public squares), for public use, and remain forever for public use, as public highways, and for other public uses.'

When the town of Dubuque was laid out under the provision of this act, the Mississippi river flowed through an outer and an inner channel in front of the town, there being a number of islands in the river; and the commissioners appointed under the act located the so-called 'reserved strip' upon the inner channel, which for years thereafter constituted the steamboat landing of the town. Subsequently, the place of landing was changed to the outer or main channel, and a large part of the inner channels has been filled up, and streets have been built out to the main channel. Since the reserved strip has ceased to be used as a river landing, lines of railway have been constructed by different companies, and are now operated, along a large portion of the strip; but part thereof has been divided up into lots, and buildings have been erected upon different parts thereof. In the year 1874, the track which now constitutes the main line of the defendant company was constructed along the reserved strip, and within the limits thereof; and in 1881 a side track was built by the defendant within the limits of the reserved strip, which side track passes in close proximity to a barn and other buildings erected and owned by the complainant. In effect, the purpose of the bill filed in this case is to compel the defendant company to pay damages to the complainant for thus constructing the side track upon such strip.

In the case of Simplot v. Railway Co., 16 F. 350, the question came before this court whether an owner of lots adjacent to this strip could recover damages for the construction of the main line of the defendant's road along said strip, the same having been built in the year 1874, and the conclusion was reached that such damages were not recoverable. In that case it was stated that under the decisions of the supreme court of Iowa in Milburn v. City of Cedar Rapids, 12 Iowa, 247, Clinton v. Railroad Co., 24 Iowa, 455, and Chicago, N. & S.W.R. Co. v. Mayor of Newton, 36 Iowa, 299, it was the law, previous to the adoption of the Code of 1873, that in cities and towns laid out under the general incorporation law of the state, wherein the title of the lot owners extended only to the side lines of the streets, the ownership of the soil underlying the street being in the public, the abutting owner could not recover damages for the construction and operation of a railroad along the street, but that in cases where towns or cities had been laid out under special charters, by whose provisions the title of the abutting lot owner went to the center of the street, damages might be awarded upon the theory that the building and operation of a railway imposed an additional burden upon the property of the lot owner, and the damages were not therefore consequential, but direct; the latter doctrine being settled by the decision in Kucheman v. Railway Co., 46 Iowa, 366. It was further held by this court that the provisions of section 464 of the Code of Iowa of 1873 were not applicable in 1874 to cities acting under special charters, of which Dubuque was and is one, and that Simplot, the plaintiff in that case, could not claim any rights under that section of the Code. In the present case it is shown that by chapter 96 of the Acts of the 18th General Assembly of the State of Iowa, adopted in 1880, the provisions of section 464 of the Code are made applicable to all special charter cities; and the contention of the complainant is that, under this section, he is entitled to damages for the construction of the side track which was built after the adoption of the act, bringing special charter cities within the purview of section 464, which reads as follows:

'They shall have power to lay off, open, widen, straighten, narrow, vacate, extend, establish, and light streets, alleys, public grounds, wharves, landings and market places, and to provide for the condemnation of such real estate as may be necessary for such purposes. They shall also have power to authorize or forbid the location and laying down of tracks for railways, and street railways, on all streets, alleys, and public places; but no railway track can thus be located and laid down until after the injury to property abutting upon the street, alley or public places upon which such railway track is proposed to be prescribed for the taking private property for works of internal improvement, in chapter four of title ten of the Code of 1873.'

If the contention of complainan...