Chi., B. & Q. R. Co. v. Porter

• Decision Date: 06 October 1887
• Citation: 72 Iowa 426,34 N.W. 286
• Court: Iowa Supreme Court
• Parties: CHICAGO, B. & Q. R. CO. v. PORTER AND OTHERS. CHICAGO, R. I. & P. R. CO. v. PORTER AND OTHERS.

72 Iowa 426

34 N.W. 286

CHICAGO, B. & Q. R. CO.

v.PORTER AND OTHERS.

CHICAGO, R. I. & P. R. CO.

v.PORTER AND OTHERS.

Supreme Court of Iowa.

October 6, 1887.

Appeal from district court, Wapello county.

These are actions in equity by which the plaintiffs seek to enjoin the defendants from maintaining a wooden building, and from completing the erection of a brick building, upon land which the plaintiffs allege is within their right of way, and near to their railroad tracks. There was a hearing in the court below upon an application for a temporary injunction. The injunction was allowed as to the brick building, and denied as to the wooden building. The defendants appeal.McNett & Tisdale, for appellants.

David C. Beaman, for Chicago, B. & Q. R. Co.

Thos. S. Wright, for Chicago, R. I. & P. R. Co.

ROTHROCK, J.

1. The two causes were heard and determined in the court below upon the same evidence, and they are presented in this court upon one abstract, and upon the same arguments. The ultimate question involved in both cases is, have the plaintiffs such a right to the land upon which the brick building is in course of erection as to entitle them to an injunction preventing the defendants from so using the land?

It appears from the evidence that the railroad now owned by the Chicago, Rock Island & Pacific Railroad Company was constructed in 1859 or 1860, and that the road now belonging to the Chicago, Burlington & Quincy Company was built in 1865. The land in controversy is situated at the city of Ottumwa, on the Des Moines river. The railroads were constructed across a bend in the river, upon land which was below ordinary high-water mark. The defendants are owners of the land which was bounded by the river at the point opposite to the lines of railroad. The Chicago, Rock Island & Pacific road was built next to the shore of the river, and the other road further out in the stream. The lines were practically parallel with each other, and about 80 feet apart. The land being below ordinary high-water mark, it was necessary to raise embankments upon which to lay the tracks. These embankments were from 16 to 18 feet in height, and 14 or 15 feet wide on top, with a width of base of from 63 to 68 feet. These figures may not be entirely accurate, and there is quite a controversy between the parties as to whether the bases of the two embankments met and overlapped each other. We do not regard this as an important question in the case, because whether the embankments covered the whole of the intervening space or not does not appear to us to be a controlling feature of the case.

The brick building, the subject of the controversy, is situated between the two railroads, and within a few feet of the tracks of the respective roads. It may not be that these tracks are as close to each other as those originally laid. Both roads have side tracks which have been laid since the original embankments were made, but this fact we regard as of no importance in determining the rights of the parties. We think that if it be held that the plaintiffs had the right to appropriate the land, and construct their roads upon it, that right extended at least to the base of the embankment of each road, because the base of the embankment was as much a part of the structure as the ties and iron rails; and the defendants have no right to construct a building which encroaches upon any part of the embankment, whether the attempt is made upon the surface, as made by the plaintiffs, or by using that surface as a base upon which to fill up the intervening space to a suitable height upon which to erect a building. The building in course of erection is so near the tracks of each road that a perpendicular line down ward from each end of it would cut the respective embankments as they were originally constructed. The building in question is 45 feet long.

It is conceded that the railroads were constructed below ordinary high-water mark. The Des Moines river was declared to be a navigable stream by act of congress dated August 8, 1846. The defendants or their grantors, being the owners of the land bounded by the river, had no title beyond ordinary high-water mark. The title to the whole bed of the river was in the state. McManus v. Carmichael, 3 Iowa, 1;Tomlin v. Railroad Co., 32 Iowa, 106;Musser v. Hershey, 42 Iowa, 356. The act declaring the stream to be navigable was repealed by an act of congress passed January 20, 1870. But this court has three times determined that the repealing act did not invest riparian owners with title to the bed of the river, and that the boundaries of their lands were not extended thereby. Wood v. Railroad Co., 60 Iowa, 456, 15 N. W. Rep. 284;Serrin v. Grefe, 25 N. W. Rep. 227; and Steele v. Sanchez, 33 N. W. Rep. 366. In Wood's Case it was held that the riparian owner could not maintain an action to recover possession of land, being below ordinary high-water mark, from the railroad company, which began to occupy the same with its road-bed while the...