Chicago, M. & St. P.R. Co. v. Stark-weather

• Decision Date: 01 February 1896
• Citation: 66 N.W. 87,97 Iowa 159
• Parties: THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant, v. F. STARKWEATHER, Street Commissioner, et al
• Court: Iowa Supreme Court

66 N.W. 87

97 Iowa 159

THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant, v. F. STARKWEATHER, Street Commissioner, et al

Supreme Court of Iowa, Des Moines

February 1, 1896

Appeal from Sioux District Court.--HON. GEORGE W. WAKEFIELD, Judge.

THIS is a certiorari proceeding, for the review of the action of the council of the incorporated town of Boyden, in extending a street across the depot grounds of the plaintiff. There was a trial on the merits, and a judgment dismissing the petition. The plaintiff appeals.

Affirmed.

Milt H Allen for appellant.

Boies & Roth for appellees.

OPINION

ROBINSON, J.

The plaintiff owns and operates a railway which extends from the city of Milwaukee, in the state of Wisconsin, westward through Iowa to Chamberlain, in South Dakota. The incorporated town of Boyden is on that line, in Sioux county; and the defendants are the mayor, trustees, and street commissioner of that town. The railway extends from east to west through the town, and separates the part which contains most of the inhabitants, and which is north of the depot grounds, from the part which is south of it. Main street extends from north to south on each side of the depot grounds, but prior to September, 1892, was not opened through them. In that month the council passed an ordinance, which, in terms, extended the street through the grounds; appropriating for that purpose a strip of land eighty feet wide, which connected the two parts of the street, and which, when opened, will make it continuous. Proceedings were then had, under section 1244 of the Code, for the assessment of the damages to the plaintiff which the opening of the street would cause. They were assessed at fifty dollars. That sum was paid to the sheriff for the use of the plaintiff, and in December, 1892, a resolution was adopted by the council, opening the street. In November, 1892, the plaintiff filed its petition in this case, alleging that the proceedings which had then been taken were illegal and void, for several reasons, and asking that they be annulled. A writ of certiorari was issued. A return thereto was made, and amendments to the petition, and an answer, were filed. A demurrer to the answer was overruled, and a trial was had, with the result already stated.

I. The plaintiff discusses the right of the defendant, in a proceeding by certiorari, to set out in an answer, matters which do not relate to the jurisdiction to take the action of which complaint is made in the petition. We do not find it necessary to determine the question thus presented, for the reason that nothing material was set out in the answer in this case, of the character suggested, which would have prejudiced the plaintiff. We therefore express no opinion in regard to issues which may be presented by answer in certiorari proceedings. The important questions involved in this case were presented by the petition, the return, and the evidence.

II. It is claimed by the appellant that depot grounds are essentially public property; that they may be acquired by the exercise of the right of eminent domain, when they cannot be otherwise obtained; and that for these reasons they cannot be taken by means of that right. It is undoubtedly true that the railway and station grounds are operated and used in part for public purposes. The right of eminent domain rests upon the theory that property taken by virtue of it is to be used for the benefit of the public, and it cannot be exercised for any other than a public object. Stewart v. Board, 30 Iowa 9, 1 Redfield R. R. 228; 6 Am. and Eng. Enc. Law, 515. But it is not true that property devoted to one public use, cannot be subjected to any other. It is within the power of the general assembly to make the same property subservient to different public uses, or even to take it from one public use, and devote it to another. Thus, the streets of a town or city may be used for the purposes to which streets are ordinarily devoted, and also for railway purposes. Milburn v. Cedar Rapids, 12 Iowa 246; Cook v. City of Burlington, 30 Iowa 94. It was said in Evergreen Cemetery Ass'n. v. City of New Haven, 43 Conn. 234, to be unquestionable, "that the legislature has the power to authorize the taking of land, already applied to one public use, and devote it to another." That doctrine is sustained by numerous authorities, among which are the following: City of Bridgeport v. New York & N. H. R. Co., 36 Conn. 255; Inhabitants of Springfield v. Connecticut River R. Co., 58 Mass. 63; Boston Water-Power Co. v. Boston & W. R. Corporation, 40 Mass. 360, 23 Pick. 360; In re City of Buffalo, 68 N.Y. 167, 170; In re Boston & A. Railroad Co., 53 N.Y. 574; Hickok v. Hine, 23 Ohio St. 523; Chicago W. D. Ry. Co. v. Metropolitan W. S. El. R. Co., 152 Ill. 519, (38 N.E. 736); St. Louis, H. & K. C. Ry. Co. v. Hannibal Union Depot Co. (125 Mo. 82, 28 S.W. 483); In re Mayor, etc., of New York, 135 N.Y. 253 (31 N.E. 1043); Old Colony R. Co. v. Framingham Water Co. (153 Mass. 561, 27 N.E. 662); Cincinnati, S. & C. R. Co. v. Village of Belle Centre (48 Ohio St. 273, 27 N.E. 464); City of Seymour v. Jeffersonville, M. & I. R. Co. (Ind. Sup.) (126 Ind. 466, 26 N.E. 188); 6 Am. & Eng. Enc. Law, 533; City of Ft. Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558 (32 N.E. 215).

The doctrine is subject to the modification, however, that the power to take the property for the second public use, when such an appropriation would supersede or defeat the first one, must be given expressly or by necessary implication; and stress is placed on that modification by most of the authorities to which we have referred. The use of the strip of ground in question for railway depot purposes is in part for the public benefit, and therefore public. The use for which the town of Boyden appropriated it is also public; but the plaintiff has occupied and used it for railway purposes for many years, and its rights are prior, in point of time to any which the town has acquired. It is true, the grounds were not obtained for the plaintiff through the exercise of the right of eminent domain, but by a conveyance from its owner; but it may be conceded, for the purposes of this case, that the method by which title was acquired is immaterial, so long as the use made of the land is a public one. The question remains to be determined whether, under the statutes of this state, the town was authorized to extend its street in the manner attempted, against the will of the plaintiff. It is said in Sutherland St. Const., section 388, that "there is a broad distinction between acts which subvert or essentially impair a prior franchise or...