Buffington Wheel Co. v. Burnham

• Citation: 15 N.W. 282,60 Iowa 493
• Parties: BUFFINGTON WHEEL CO. ET AL. v. BURNHAM ET AL
• Decision Date: 23 March 1883
• Court: United States State Supreme Court of Iowa

15 N.W. 282

60 Iowa 493

BUFFINGTON WHEEL CO. ET AL. v. BURNHAM ET AL

Supreme Court of Iowa, Council Bluffs

March 23, 1883

Appeal from Des Moines District Court.

ACTION IN CHANCERY. The petition prays that defendants may be enjoined and restrained from laying down a switch and side-track, connected with the Chicago, Burlington & Quincy Railroad, upon certain streets in the city of Burlington. A preliminary injunction in accord with the prayer of the petition was allowed. From the order allowing the injunction defendants appeal.

AFFIRMED.

Poor & Baldwin, Newman & Blake, for appellants.

Hall & Huston, Smyth & Son, for appellees.

OPINION

BECK, J.

I.

The petition alleges that the council of the city of Burlington on the 5th day of June, 1882, adopted an ordinance authorizing the defendants, N. R. Derby & Co. and J. R Burnham & Co., to build a side-track from the Chicago Burlington & Quincy Railroad, across Washington, Boundary and Columbus streets, passing the mills of the last named firm; that plaintiffs own, and some of them occupy for manufacturing purposes, lots located upon Boundary and Osborn streets, in the vicinity of the proposed side-track; "that the passage of the ordinance was not in the public interest, nor demanded by the public, nor for public use, but, on the contrary, was for the private benefit and advantage" of defendants; that the building of the side-track will obstruct the free public use of the streets named, and will greatly interfere with plaintiffs in the enjoyment and use of their property situated upon the streets named, and that no provision is made by the ordinance, nor have the defendants offered or proposed to compensate plaintiffs, for the injury they will sustain by the building of the side-track. It is also alleged that the council of the city is composed of nine persons, and N. A. Derby, a partner in one of the defendants' firms, at the time the ordinance was adopted, was one of its members and voted to adopt the ordinance, which, with his vote, received six affirmative votes. It is further shown that, under a rule of the council then in force, a member directly interested in any question should not vote thereon.

The defendants answer separately the petition, denying that the construction of the side-track would interfere with the public in the use of the streets over and along which it would be constructed, and averring that defendant, Derby, had no such interest therein as would disqualify him from voting upon the question of the adoption of the ordinance.

II. It may be here observed that the petition does not in direct terms allege that the proposed side-track is to be used by defendants to the exclusion of others, or the public generally. The allegation of the petition as to the purpose of the ordinance, which we have above quoted, possibly may be regarded as applying to the use of the side-track, and be understood as an averment that it is to be private, to the exclusion of the public. The answers are equally indefinite and uncertain as to the proposed use of the side-track, whether it should be public or private, and the same is true of the evidence upon this point of the case.

III. Counsel for plaintiffs insist that the grant under the ordinance was for a private purpose, and that the side-track cannot he built until compensation be provided for all sustaining injuries by reason of its construction. The questions presented by these objections need not be considered, for the reason that the case must be...