Chicago, R.I. & P. Ry. v. City of Council Bluffs
| Decision Date | 20 October 1899 |
| Citation | 80 N.W. 564,109 Iowa 425 |
| Parties | THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY v. THE CITY OF COUNCIL BLUFFS, et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.
SUIT in equity to enjoin the opening of what is known as "Seventh street," in the city of Council Bluffs over and across plaintiff's right of way. There was a hearing on the merits, resulting in a decree for plaintiff and defendants appeal.
Reversed.
S. B Wadsworth for appellants.
Carroll Wright and Wright & Baldwin for appellee...
In the year 1857 what is known as "Riddle's Subdivision in the city of Council Bluffs" was duly platted by one John T. Baldwin, who was the owner, or trustee for the owners, of the land covered thereby. A copy of this plat is necessary to a full understanding of the questions presented, and it is here produced from a photographic copy: [SEE PLAT IN ORIGINAL]
What is there designated as Center street is now Sixth. Marcy is now Seventh; Baldwin, Eighth; and Chestnut, Ninth. Thirteenth avenue is the street running east and west just south of the land designated on the plat as Depot Grounds, and Fourteenth avenue is the next east and west street immediately south of Thirteenth avenue. The streets are now numbered numerically from east to west, and the avenues from north to south, commencing with Ninth, which is designated on the plat as Oak street. The railroad using the right of way and depot grounds did not come to Council Bluffs until the year 1868, although it was projected some time before the plat was made, and certain citizens, among whom was Baldwin, had agreed to furnish it depot grounds. Before laying its tracks the railway company obtained deeds to the depot grounds and right of way from Baldwin and others, who were then the owners of the land covered by the plat, which deeds contained the following description of the premises conveyed: "To-wit, a parcel of land in Riddle's subdivision in Council Bluffs, Pottawattamie county, Iowa, situated in east half of southeast quarter, section 35, or in southwest quarter of sections 36, 75, 44, one thousand and nine hundred and ninety-eight feet long from east to west, by three hundred and fifty feet wide from north to south, and bounded as follows, to-wit: On the north by center of Durant street, on the east by the center of Chestnut street, on the south by the center of Commercial street, on the west by lots E and F, and the west boundary line of said subdivision as platted and now recorded; also, a strip of land through said sub-division known and platted as the right of way of the Mississippi & Missouri R. W. Co., and running through the above-described parcel of land, and through blocks 45, 51, 52, 53, 57, 58, 74, and 75, and through and across Chestnut, Baldwin, Marcy, Center, Main, Commercial, Walnut, and Locust streets, in said sub-division, as now platted and of record--and all in Pottawattamie county, state of Iowa; being (said last-described strip or right of way) 100 feet in width, being fifty feet on either side of the center line of the road of said company as located, or to be located, by the engineer of said R. R. Co. for the construction of said R. R. from Kellogg, in Jasper county, to such point as may be hereafter designated." What are known as Sixth and Eighth streets have been opened and used for travel over and across plaintiff's right of way for many years, but the original crossing was at Seventh street. About the time the tracks were laid the railway company put in a plank crossing at the intersection of this street with its right of way, which was maintained and used until about the year 1885, at which time it moved its freight depot to a point near to and adjoining Seventh street, where it crosses the right of way. At or about the time of the location of the depot the planks which made the crossing at Seventh street were torn up, and a ditch was dug along the right of way so as to turn the water from Sixth street in a westerly direction along the track. Whether or not this ditch crossed Seventh street is a matter about which the witnesses do not agree, and we do not find it necessary to determine the dispute. In the year 1891 the defendants were again threatening to open and grade Seventh street where it crosses the right of way, and plaintiffs procured a temporary writ of injunction restraining them from so doing. The action in which the injunction was obtained was thereafter dismissed by plaintiff at its costs. In the year 1894 the city council of Council Bluffs passed an ordinance vacating Seventh street between Thirteenth and Fourteenth avenues, but this ordinance was never signed by the mayor, and was thereafter reconsidered by the council and "laid on the table."
At the time this suit was commenced the defendants were again threatening to open up Seventh street over and across plaintiff's right of way. Plaintiff claims that it owns the right of way shown on the plat, in virtue of the deeds from Baldwin and others, and that none of the streets shown on the plat cross the same. It also insists that, if the public ever had any right to a crossing at Seventh street, it has lost it by abandonment and by adverse possession, and it contends that the vacation ordinance to which we have...
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