Burlington Gaslight Company v. Burlington Cedar Rapids & Northern Railway Company

Decision Date26 May 1894
Citation59 N.W. 292,91 Iowa 470
PartiesBURLINGTON GASLIGHT COMPANY v. THE BURLINGTON CEDAR RAPIDS & NORTHERN RAILWAY COMPANY, Appellant
CourtIowa Supreme Court

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

THIS is a suit in equity by which the plaintiff seeks to enjoin the defendant from making an excavation, and erecting a wall and a freight depot, in what is known as "Front Street," in the city of Burlington. The defendant answered the petition, and there was a hearing on the merits which resulted in a decree for the plaintiff. Defendant appeals.

Reversed.

S. K Tracy for appellant.

P. H Smyth for appellee.

OPINION

ROTHROCK, J.

What is known as "Front Street," in the city of Burlington, is a strip of land bounded on the east by the Mississippi river. The plaintiff is the owner of five lots which about on said street on the west, and said lots are occupied and used for the purpose of manufacturing gas to be used by the inhabitants of the city. The land known as "Front Street" is about two hundred feet in width, opposite the plaintiff's lots. The defendant and another railroad company are occupying a part of said strip of land or street with railroad tracks, and switches, and a freight house, which is located between the railroad tracks and the river. The freight house is located across the railroad tracks and opposite to the plaintiff's gas works. These tracks and the freight house have been in use for a number of years. Before the railroad was graded, the land in front of plaintiff's lots gradually descended towards the river, and it was necessary to grade the railroad down to a level, which made a perpendicular cut of several feet, and a retaining wall was erected so as to sustain the bank and keep it in place. This wall is about thirty-six feet east of the line of the plaintiff's lots. The plaintiff makes no complaint of this occupation of the street east of its lots. The cause of action is founded upon the fact that the defendant was about to remove the present retaining wall, and widen the excavation of the street toward plaintiff's lots, and build a new retaining wall about two hundred and fifty feet long, and within twenty or twenty-one feet of the east line of said lots. It appears that the defendant's purpose in making the excavation and removing the retaining wall east was to make space for a new freight depot which it intended to erect west of its railroad tracks. The defendant claims that it has a right to make the proposed improvement, because the excavation is for the purpose of not only making room for a depot, but also for making a wagon road, so that the public may safely transact business at said depot without the danger of crossing numerous railroad tracks, and that it has the right to do so because the strip of land is not exclusively a street, but may be used for other public purposes. The plaintiff insists that the whole of the two hundred feet between its lots and the river is a public street, and that any obstruction upon said strip of land which impedes travel thereon is unlawful, and may be enjoined.

If this strip of land was originally set apart for the purposes of a street for public travel only, there would be force in the claim made by the plaintiff. The city of Burlington was laid out in pursuance of an act of congress passed July 2, 1836 in which it was provided "that a quantity of land of proper width on the river bank at the town of Burlington, and running with the said river the whole length of said town, shall be reserved from sale (as shall also the public squares) for public use as public highways and for other public uses." By an act of congress passed February 14, 1853, the title to said property was relinquished to the city of Burlington. It was held in the case of Cook v. City of Burlington, 30 Iowa 94, that "the city took it for the same purposes for which the government held it, subject to the same trusts, and affected by the same conditions." The claim that this body of land two hundred feet wide can be devoted to no other public use than street travel can not be sustained. It is expressly provided by the act of congress that it shall remain forever for public use as public highways, "and for other public uses." The fact that the land reserved was two hundred feet wide precludes the idea that it was intended for public travel...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT