Cain v. Chi. Rock Island & Pac. R.R. Co.

• Decision Date: 13 December 1879
• Citation: 54 Iowa 255,3 N.W. 736
• Parties: CATHERINE CAIN, APPELLANT, v. THE CHICAGO ROCK ISLAND & PACIFIC RAILROAD COMPANY, APPELLEE.
• Court: Iowa Supreme Court

54 Iowa 255

3 N.W. 736

CATHERINE CAIN, APPELLANT,

v.THE CHICAGO ROCK ISLAND & PACIFIC RAILROAD COMPANY, APPELLEE.

Supreme Court of Iowa.

Filed December 13, 1879.

Appeal from Polk circuit court.

The substance of the petition is: that in the year 1872 Robert Cain, plaintiff's husband, purchased a lot on the north side of Vine street, in the city of Des Moines, and erected thereon a brick dwelling-house, the outer wall of which was upon the south line of the lot and abutted on the sidewalk. Before the purchase of the lot and the erection of the house the city, by an ordinance, had granted to the defendant the right to run its railroad track along said street, which was 82 1/2 feet wide, the said tracks to be constructed as nearly as practicable to the middle line of the street, and so as to leave at least eight feet on each side of said street between the sidewalks and said track.

In the year 1873 the defendant, without the permission of said Robert Cain or the plaintiff, and in violation of said ordinance, laid a side track within six feet of the line of said street, and within six feet of said dwelling-house, and upon four feet of the space allowed for a sidewalk by the city plat; that there was sufficient space in said street for defendant to lay its side track without encroaching on the space allowed for sidewalk, on either side; and defendant put down said side track to reach warehouses along the north side of said Vine street, and not because it was necessary to operate said road.

The said Robert Cain died in the year 1876, and it is averred that the plaintiff has occupied said house as her dwelling and homestead from the time it was erected up to present; “that defendant leaves cars standing upon said side track, in front of plaintiff's doorway, often for periods of a day or two at a time; that leaving said cars standing so near plaintiff's house and running them and their engines past, and the general use of said siding for railroad purposes, has shaken the walls of said house, and so shaken it as to render it almost worthless; that it is rendered unfit for a dwelling, and for such purpose is rendered valueless; that plaintiff has suffered great annoyance and disturbance from the close proximity of the cars, to her damage in the sum of $1,500,” for which she asks judgment. There was a demurrer to the petition, the substance of which is that the plaintiff is not entitled to recover upon the facts stated in her petition. The demurrer was sustained. Plaintiff appeals.Clark & Connor, for appellant.

Wright, Gatch & Wright, for appellee.

ROTHROCK, J.

1. That a railroad company may locate and build its road in the public streets of a city or town in this state, without the consent of the corporate authorities of such city or town, has been definitely settled by frequent decisions of this court. City of Clinton v. C. R. & M. R. 24 Iowa, 455;Newton & Southwestern R. Co. v. Mayor, etc. 36 Iowa, 299;Cook v. City of Burlington, Id. 357; Slatten v. Des Moines Valley R. Co. 29 Iowa, 148;City of Clinton v. C. & S. R. Co. 37 Iowa, 61;Davis v. C. & N. W. R. Co. 46 Iowa, 389. It is also well settled that such right is subject to equitable control and proper police regulations, and if a railroad be constructed upon a street in such a careless, improper or negligent manner as to be an injury to the owner of property abutting upon the street, he may recover damages by reason of such careless, negligent and improper construction, provided his injury be special, and not common to the general public. Cadle v. Muscatine Western R. Co. 44 Iowa, 11;Park v. C. & S. W. R. Co. 43 Iowa, 636;Frith v. City of Dubuque, 45 Iowa, 406. This court has never determined that a person cannot recover damages for special injuries to his property by reason of the construction of a railroad in the street of a city, and the right to construct being subject to equitable control and proper police regulations.

The ordinance of the city of Des Moines, prescribing the extent to which Vine street should be occupied by railroad tracks, was just such an ordinance as it had the power to make and enforce, provided it was not an unreasonable restriction upon the railroad company. That it was not unreasonable must be presumed, in the absence of a showing to the contrary. The allegations of the petition being concededby the demurrer to be true, Robert Cain undoubtedly had the right to recover damages of the plaintiff for building a railroad track within six feet of his house, in violation of the ordinance of the city, and operating it in the manner set forth in the...