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

• Decision Date: 12 December 1884
• Citation: 21 N.W. 767,65 Iowa 440
• Parties: BIRGE v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY
• Court: Iowa Supreme Court

21 N.W. 767

65 Iowa 440

BIRGE v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

December 12, 1884

Appeal from Palo Alto District Court.

ACTION to recover possession of certain real estate, and for damages. There was a judgment for the defendant. The plaintiff appeals.

REVERSED.

Soper Crawford & Carr, for appellant.

Geo. E Clarke, for appellee.

OPINION

ADAMS J.

I.

The land in question is occupied by the defendant for the use of its railroad, being a part of three tracts, of forty acres each, in Palo Alto county. The plaintiff shows by his petition that he became the owner of the three tracts on the twenty fourth day of September, 1881, by title derived through one Kate Perry, and that the defendant has constructed its track over the land, by reason of which he has sustained damages in the sum of $ 100. The defendant moved to strike out so much of the plaintiff's petition as sets up a claim for damages, the motion being based upon the ground that the petition shows that the land has been taken for railroad right of way, and that the damages for such injury, if any, can be assessed only by the special tribunal provided by statute. The court sustained the motion, and the plaintiff assigns the ruling as error. At a former term of this court we held, in this case, that the ruling of the court was correct. After the opinion was filed, we discovered a case which had been overlooked by both court and counsel, in which it was held that damages may be recovered in an action of trespass. Rush v. Burlington, C. R. & N. R'y. Co., 57 Iowa 201, 10 N.W. 628. The opinion was very brief, and the ruling in question was contained in a single remark, and did not especially enlist our attention. We do not regard the question as one of great importance, and, while a majority would be satisfied on principle to adhere to the original opinion, we do not feel justified in overruling the case above cited, and it follows that the motion to strike out the claim for damages should have been overruled.

II. There is one other question in the case which was determined by the former opinion, with which decision we are content, and we desire to add nothing further in its support; and, as that opinion will not be published, we here incorporate so much of the former opinion as pertains to that question:

"2. We come now to the second and only remaining branch of this case. The defendant, by way of answer, averred certain facts as constituting a legal assessment under the statute, and condemnation of the land. To the answer the plaintiff demurred, and the demurrer was overruled. An assessment, it appears, was made, and the only question presented is as to the sufficiency of the notice to bind this plaintiff. The notice given was a notice by publication, and the person who was the owner at that time was not specifically named therein. The defendant, however, insists that no notice was necessary, and that, besides, if it was the notice was sufficient, for that, while it is true that the owner was not specifically named in the notice, he was otherwise described. The notice was in these words 'To Kate Perry * * * and all other persons having any interest in or owning any of the following real estate,' etc. Kate Perry, it appears, was formerly the owner. Just prior to the commencement of the proceedings she sold and conveyed to one Conable, who afterwards conveyed to the plaintiff. The defendant, failing to discover the conveyance of Kate Perry, proceeded as if she still remained the owner. Whether it would be competent for the legislature to provide for the taking of land for a public improvement without notice to the owner, we need not determine. Our legislature has not so provided. It has, on the other hand,...