Chicago & N.W. Ry. Co. v. Drainage Dist. No. 5 Sac County
| Decision Date | 14 May 1909 |
| Citation | 121 N.W. 193,142 Iowa 607 |
| Parties | CHICAGO & NORTH WESTERN RAILWAY COMPANY, Appellant, v. DRAINAGE DISTRICT NUMBER FIVE, SAC COUNTY, Appellees |
| Court | Iowa Supreme Court |
Appeal from Sac District Court.--HON. 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.
OPINION
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 has 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
125
236 00
70 piles in place
7 00
490 00
74 cu. yds. concrete
6 00
444 00
86 cu. yds. masonry
860 00
$ 2,248 00
Steel -- One 28-foot beam
span 21,600 pounds
04
864 00
Erection
Deck 28 feet
3 50
Falsework redriving 2 bents
Plainting 10 tons
1 50
1,092 00
Engineering and Supt. 2%
of $ 3,340
Freight on material
480 00
Excavation for ditch 320 cu.
yds.
50
160 00
Total estimated cost
$ 4,045 00
Equated sum for annual
maintenance on basis of 4%
interest as follows:
Annual cost of painting
$ 10 00
Annual cost of relining
Annual cost of redecking
$ 33 00
Annual cost of maintaining
pile bridge
Annual credit $ 38-$ 33-$ 5.00
Credit by same yielding 5%
annual (a) 4%
$ 125 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 forty-eight-foot wooden bridge supported by rows of piling fourteen feet apart. The proposed ditch will be twenty feet wide at the top, and seven feet deep, and six 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 advisement 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, 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, 30th General Assembly, it was entitled to recover as damages the cost of constructing a new bridge. The contention of the defendants is that chapter 68, 30th General Assembly, 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, chapter 68, 30th General Assembly, 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 liable for the cost thereof, to be collected by the county in any court having jurisdiction. All other proceedings in relation to railroads shall be the same as provided for individual property owners within the district, except that the cost of constructing the improvement across its right of way shall be considered as an element of its damages by the appraisers thereof; and the commissioners to assess benefits shall fix and determine the actual benefits to the property of the railroad company within the levee or drainage district and make return thereof with their regular return. Such special assessment shall be a debt due personally from the railroad company, and unless the same is paid by the railroad company as a special assessment, it may be collected in the name of the county in any court having jurisdiction.
I. The particular phrase relied upon is "that the cost of constructing the improvement across its right of way shall be considered as an element of its damages." It will be noted that this phrase does not, in terms, include the cost of building a new bridge; but plaintiff contends, in effect, that such is the meaning of the words "the improvement," and that it should be so construed. In the copy of the statute which we have set out above, we have italicized certain words thereof for convenience of reference. It will be observed that the words "the improvement" appear in the preceding sentence of this section. By reference, also, to the first eighteen sections of the chapter it will be noted that this expression appears upwards of twenty times. There can be no doubt that the expression "the improvement," as it occurs in the first eighteen sections of the chapter, refers always to the proposed "levee, ditch, drain," etc. It is manifest, also, that the expression as it appears first in section nineteen refers to the same thing. We can see no ground for holding that it takes on any different meaning in the sentence from which we have already quoted, and upon which plaintiff bases its right. Recognizing the seriousness of interfering temporarily with a railroad company's possession and control of its right of way, this section requires the railway company to construct the proposed "improvement" across its right of way, and do so in the first instance at its own cost. This cost, however, is compensated for by making the same an element of damages. This is manifestly the sole purpose and intent of this provision of the statute upon which plain...
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Chi. & N. W. Ry. Co. v. Drainage Dist. No. 5, Sac Cnty.
... 142 Iowa 607 121 N.W. 193 CHICAGO & N. W. RY. CO. v. DRAINAGE DIST. NO. 5, SAC COUNTY. Supreme Court of Iowa. May 14, 1909 ... ...