Chicago, Milwaukee St. Paul & Pacific Railroad Co. v. Cross

• Decision Date: 13 January 1931
• Docket Number: 40612
• Citation: 234 N.W. 569,212 Iowa 218
• Parties: CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellant, v. ELLEN CROSS, Appellee
• Court: Iowa Supreme Court

234 N.W. 569

212 Iowa 218

CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, Appellant, v. ELLEN CROSS, Appellee

No. 40612

Supreme Court of Iowa, Des Moines

January 13, 1931

REHEARING DENIED APRIL 11, 1931.

Appeal from Chickasaw District Court.--CARL W. REED, Judge.

The statement of the nature of the action, the decision of the trial court and the requisite facts are fully stated in the opinion. From the judgment rendered, the plaintiff appeals.

Reversed.

M. F Condon and Hughes, O'Brien & Faville, for appellant.

Geiser Donohue & Geiser, for appellee.

OPINION

WAGNER, J.

The plaintiff, Railroad Company, in its petition, seeks to enjoin the use, by defendant, of an opening under a trestle bridge on the railroad right of way as an under-crossing, or as a means of ingress and egress to and from her premises. It is the plaintiff Company's intention to replace the trestle bridge with permanent construction and to install reenforced concrete pipes adequate for necessary drainage. The purpose of the replacement of the bridge is to promote safety, eliminate fire hazard and reduce the cost of maintenance.

The defendant, in her answer, alleges in substance, that she and her predecessors in title have used the way or opening under said trestle bridge openly, notoriously, continuously, adversely and uninterruptedly for a period of more than ten years last past, and that she has acquired the right to the use of said passage way by adverse possession; that she owns land situated on both sides of the railroad right of way; that she is entitled to a crossing or roadway across the right of way connecting her two tracts of land; that said trestle bridge is inadequate to meet the defendant's present needs, for the reason that the stream which runs under said bridge overflows during the wet season of the year and makes access to the north tract of defendant's land extremely difficult; that defendant has made written demand upon the plaintiff herein to continue to maintain the trestle bridge or opening in its roadbed hereinbefore referred to. She prays that the plaintiff be enjoined from closing said viaduct or obstructing said way, or in any way interfering with defendant's free use of the same, and that plaintiff be required to keep said road and way open and in a proper and passable condition, and that, if the court decrees the right to the plaintiff of obstructing, destroying or closing said passage way through and under its said viaduct, that then and in that event, the plaintiff be required before the obstruction or closing of the same to build, erect and furnish to the plaintiff an adequate and safe crossing across its said right of way, connecting defendant's land on the south side of such railroad right of way with her land on the north side thereof.

The court denied the injunctive relief asked by the plaintiff and dismissed its petition, and decreed that said underground passage way across the plaintiff's right of way from the land of the defendant on the south side of said right of way, to the land of the defendant on the north side of said right of way, be kept open and undisturbed as a passage-way to and from her land lying on the north side of plaintiff's right of way until such time as the plaintiff shall furnish to the defendant, at its own expense, another proper and adequate crossing across its railroad right of way from the land of the defendant lying on the south side thereof to her land on the north side thereof, or from the public street on the south side of plaintiff's right of way to the land of the defendant on the north side thereof and lying adjacent thereto. From this action of the trial court, the plaintiff has appealed.

As found by the trial court, the defendant's real property is located within the corporate limits of the city of New Hampton, but does not constitute a part of the platted portion of said city. Plaintiff's right of way extends generally in an easterly and westerly direction at the point in question, varying a trifle from the northeast to the southwest. Defendant's real estate consists of approximately four acres lying to the north of plaintiff's right of way, and a triangular piece containing about one-twentieth of an acre lying south of plaintiff's right-of-way. Only a portion of the triangular piece lies immediately south of the westerly portion of the four acre tract north of the railroad right of way--the remainder of said triangular piece extending to the west. Defendant's property, the railroad right of way, the environments and entire situation are shown by the following plat. The eastern base of the triangular piece to the south of the railroad right of way is thirty-five feet wide, and extends north and south. The record discloses that some years ago, one, Boos, was the owner of the four acre tract to the north of the railroad right of way. In 1911, Boos purchased the triangular tract hereinbefore mentioned; in 1918, Russell purchased from the Boos heirs all of said real estate, and received a deed of conveyance conveying both the four acre tract and the triangular tract, and in 1922, Russell, by a deed of conveyance, conveyed the same to the defendant. The triangular piece has had no particular use; the record discloses that it is covered with slough grass and that, on one occasion, before defendant's ownership, the slough grass thereon was cut and used for hay. The husband of the defendant testified: "The triangular piece has sometimes had hay on it and I used to burn refuse on it." He also testified that the four acre tract is used for a slaughter house, feed lots and storage, and was used for that purpose before the purchase of the same by the defendant. There are situated upon the four acre tract such buildings and improvements as are convenient and appropriate for slaughter house purposes. The railroad trestle bridge is 48 feet long, consisting of three spans of 16 feet each. Underneath the bridge the ground slopes toward the center, so that the center span is the only one that is open. This span provides for the drainage above the bridge. A water course, with well defined channel, known as "Minnie Creek," runs through this opening. Water runs in the channel of the creek during the major portion of the year; and after heavy rains and in the spring the entire opening is covered with water from one to three feet in depth. The clearance between the ground and the top of the bridge is nine feet--not sufficient for the passage of a cattle truck loaded with stock, and the stock are unloaded and driven through the passage way. At the present time, the use of the bridge as a passage way constitutes the only means of ingress and egress to and from the four acre tract. As shown by the plat, the south boundary line of said triangular piece constitutes the north line of a highway or street running east and west. This highway or street lies to the south but not adjoining the railroad right of way. Real estate, consisting of about 4 1/2 acres, owned by one Reich, lies between the street and the railroad right of way. This tract is irregular in shape, about 100 feet wide at the east end and 35 feet at the west end. The trestle bridge is in bad repair and requires renewal or replacement. To promote safety and reduce maintenance costs, the plaintiff proposes to eliminate the trestle bridge and replace it with two concrete pipes, a 75 inch pipe and a 48 inch pipe--which will be adequate to provide necessary drainage. The eastern boundary of the four acre tract is about 1000 feet from the highway, shown on the plat, which runs north and south, and it is about the same distance from said tract to the next highway to the west. The nearest road or highway to the north of defendant's real property is about one mile; the opening under the trestle bridge has been used as a passage way for more than seventeen years, and by the defendant since the property was acquired by her in October, 1922. In using this passage way, the defendant comes down the street to the triangular piece, then travels north 35 feet across same to the railroad right of way, then on the right of way and under the trestle bridge to the four acre tract. There is no fence on the south side of the railroad right of way. The defendant has been maintaining a fence between the four acre tract and the...