Chi., R. I. & P. Ry. Co. v. Ellithrope

• Court: United States State Supreme Court of Iowa
• Writing for the Court: GIVEN
• Citation: 78 Iowa 415,43 N.W. 277
• Parties: CHICAGO, R. I. & P. RY. CO. v. ELLITHROPE.
• Decision Date: 11 October 1889

78 Iowa 415
43 N.W. 277

CHICAGO, R. I. & P. RY. CO.
v.
ELLITHROPE.

Supreme Court of Iowa.

Oct. 11, 1889.

Appeal from district court, Pottawattamie county; A. B. THORNELL, Judge.

Action to enjoin the defendant from opening, breaking, or interfering with certain fences. The plaintiff is a corporation, organized and existing under the laws of this state. In 1883 this company owned and operated a railway through section 19, township 77, range 41, Pottawattamie county. In that year proceedings were had for laying out and establishing a highway across appellant's track and right of way in said section. Notice was published, as required, of this proceeding, but no notice thereof was served on the appellant. Appellant's right of way being fenced, and the company having no notice of said proceeding, it refused to open the highway. The defendant, being road supervisor, proceeded to remove the plaintiff's fence, whereupon this action was brought to enjoin him from so doing. Trial was had in the district court, and decree for defendant. Plaintiff appeals.

[43 N.W. 277]

T. S. Wright and Wright, Baldwin & Haldane, for appellant.

Mynster & Lyndt, for appellee.

GIVEN, C. J.

1. We first inquire as to who are entitled to notice of proceedings for the establishment of highways. Code, § 936, provides: “Within twenty days after the day fixed by the auditor, as above provided, a notice shall be served on each owner or occupier of land lying in the proposed highway, or abutting thereon, as shown by the transfer books in the auditor's office, who resides in the county, in the manner provided for the service of original notice in actions of law.” In Alcott v. Acheson, 49 Iowa, 569, it is held that said section 936 “requires notice to be personally served upon the owner, as shown by the transfer books, when he resides in the county; if he be a non-resident, upon the occupier of the land, if there be one.” Appellant was not shown by the transfer books to be the owner of the land within its right of way covered by the highway, but does appear to have been in open and notorious occupation thereof. It is not shown that this land stood in the name of any one as owner, nor that any person was served with notice as owner; therefore, appellant, being occupier of the land, was entitled to notice if a resident of the county.

2. We next inquire whether appellant was a resident of the county. We have seen that it was owning, occupying, and operating its railway through that county. In...