Chi. & N. W. Ry. Co. v. Drainage Dist. No. 5, Sac Cnty.

Decision Date14 May 1909
Citation142 Iowa 607,121 N.W. 193
CourtIowa Supreme Court
PartiesCHICAGO & N. W. RY. CO. v. DRAINAGE DIST. NO. 5, SAC COUNTY.

OPINION TEXT STARTS HERE

Deemer, J., dissenting.

Appeal from District Court, Sac County; Z. A. Church, Judge.

This case arises out of a drainage proceeding relating to the establishment of drainage district No. 5. The plaintiff presented its claim for damages for $3,920. The commissioners appointed to appraise damages allowed the sum of $160, and no more. The board of supervisors approved such allowance. An appeal was taken to the district court, and the cause there tried to the court without a jury, and upon a written stipulation as to the facts. The district court affirmed the action of the board of supervisors, and allowed the plaintiff the same amount. From this judgment the plaintiff appeals. Affirmed.James C. Davis, A. A. McLaughlin, and George C. Hise, for appellant.

A. B. Barclay and R. L. McCord, Jr., for appellees.

EVANS, C. J.

The proposed drain crosses the right of way of the plaintiff company along a natural water course, over which the plaintiff company for many years had maintained a bridge.

In the presentation of its claim the plaintiff attached the following itemized statement as the basis thereof:

Estimated Damages of Crossing of Proposed Drainage Ditch Petitioned for by Alex. Wager et al., at Bridge 1,451, Three Miles West of Sac City, Iowa. Replacement of 48-foot P. B. with 28 foot 6 inch I Beam Span on Masonry Abutments.

Estimate No 521--Drawing No. 4,628.

+---------------------------------------------------------------------+
                ¦175 cu. yds. wet excavation between piles at¦$ 1 25¦$218 00¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦1,890 sq. ft. sheet piling driven and pulled¦1 25  ¦236 00 ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦70 piles in place                           ¦7 00  ¦490 00 ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦74 cu. yds. concrete                        ¦6 00  ¦444 00 ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦86 cu. yds. masonry                         ¦10 00 ¦860 00 ¦$2,248 00¦
                +--------------------------------------------+------+-------+---------¦
                ¦Steel--One 28-foot beam span 21,600 pounds  ¦04    ¦864 00 ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Erection                                    ¦      ¦75 00  ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Deck 28 feet                                ¦3 50  ¦88 00  ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Falsework redriving 2 bents                 ¦25 00 ¦50 00  ¦         ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Plainting 10 tons                           ¦1 50  ¦15 00  ¦1,092 00 ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Engineering and Supt. 2% of 3,340           ¦      ¦       ¦65 00    ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Freight on material                         ¦      ¦       ¦480 00   ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Excavation for ditch 320 cu. yds.           ¦      ¦       ¦160 00   ¦
                +--------------------------------------------+------+-------+---------¦
                ¦Total estimated cost                        ¦      ¦       ¦$4,045 00¦
                +---------------------------------------------------------------------+
                
+-----------------------------------------------------------------------------+
                ¦Equated sum for annual maintenance on basis of 4%       ¦     ¦      ¦       ¦
                ¦interest as follows:                                    ¦     ¦      ¦       ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦Annual cost of plainting                                ¦$10  ¦      ¦       ¦
                ¦                                                        ¦00   ¦      ¦       ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦Annual cost of relining                                 ¦10 00¦      ¦       ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦Annual cost of redecking                                ¦13 00¦$ 33  ¦       ¦
                ¦                                                        ¦     ¦00    ¦       ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦Annual cost of maintaining pile bridge                  ¦     ¦38 00 ¦       ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦Annual credit $38-$33-$5.00 Credit by same yielding 5%  ¦     ¦      ¦$ 125  ¦
                ¦annual (a) 4%                                           ¦     ¦      ¦00     ¦
                +--------------------------------------------------------+-----+------+-------¦
                ¦                                                        ¦     ¦      ¦$3,920 ¦
                ¦                                                        ¦     ¦      ¦00     ¦
                +-----------------------------------------------------------------------------+
                

In the stipulation of facts entered into between the parties, it is agreed that $160 is the reasonable cost of excavating the ditch across the plaintiff's right of way. It is also agreed, in substance, that the other items of cost as set forth in plaintiff's specifications are the reasonable cost of the various matters specified therein; the defendant contending, however, that they are not a proper element of damage.

The fifth paragraph of the stipulation is as follows:

(5) The only question presented for the consideration of the court at this time is the question of whether the said railway company is entitled, under the present drainage laws, which were in force on February 5, 1907, at time board made its finding and order from which appeal in this case is taken, to damages in any amount for and on account of being obliged to abandon its present wooden bridge at said point, and being compelled to substitute a more expensive steel structure; and, if the court shall find that said railway company is entitled to damages for such substituted structure, then said court shall enter an order finding in favor of said plaintiff and appellant, Chicago & Northwestern Railway Company, in the sum of $3,760 in addition to the said $160 above mentioned.

(6) Either party shall have an exception to said finding, judgment, or order, and have the right to appeal if it so desires.”

It is stated in appellant's argument, though it does not appear specifically in the stipulation of facts, that the railroad company has maintained, for many years, across this water course a 48-foot wooden bridge supported by rows of piling 14 feet apart. The proposed ditch will be 20 feet wide at the top, and 7 feet deep, and 6 feet wide at the bottom where the same crosses the right of way. The case was tried and submitted in the court below on March 21, 1907, and taken under readvisement by the court to be decided in vacation. The finding and judgment of the court was made on the 12th of April following. In the meantime, on April 2, 1907, chapter 95, p. 100, of the Laws of the Thirty-Second General Assembly went into effect.

The argument of appellant is first directed to the proposition that it is entitled to have the case decided upon the law in force at the time the case was submitted, and that under such law, namely, chapter 68, p. 61, 30th Gen. Assem., it was entitled to recover as damages the cost of constructing a new bridge. The contention of the defendants is that chapter 68, p. 61, 30th Gen. Assem., created no right in the plaintiff to recover as damages the cost of constructing a new bridge. If that be not so, they contend that under the later statute, which went into effect while this case was still pending in the district court, such right was expressly negatived. Such enactment was made retroactive by its express provisions. Whether a case may be ruled by one statute at the time of its trial and submission to the district court, and then be ruled by another statute before judgment, whether the plaintiff may be entitled to judgment in the first instance, and the defendant become entitled to it in the second, is a question which we will not now decide. If the plaintiff had a legal claim when it was submitted to the court, and lost its right by a mere change in the statute while the court was thinking about it, it presents a situation, to say the least, repugnant to the judicial mind, if not abhorrent to the moral sense. We have therefore given our first consideration to plaintiff's case as made under the law in force at the time of the submission to the district court. Our conclusions thereon render it unnecessary to consider the other question.

In its argument, the plaintiff bases its right of recovery upon the language of section 19, c. 68, p. 66, 30th Gen. Assem., which is as follows: “Whenever the board of supervisors shall have established any levee or drainage district or change of any natural water course and the levee, ditch, drain, or, water course crosses the right of way of any railroad company, and the place where and the manner and method of crossing such right of way shall have been determined as provided in the preceding section, such railroad company shall within thirty days after being notified by the county auditor to construct the same and the time within which the work must be completed, proceed to construct such levee, ditch, drain or change of natural water course in accordance with the plans and specifications as shown by the plat and profile of the engineer. If such railroad company shall fail, neglect or refuse to do so within the time fixed in such notice, the auditor shall cause the work to be done under the supervision of the engineer in charge of the improvement and the railroad company shall be...

To continue reading

Request your trial

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