City of Albia v. Chicago, B. & Q.R. Co.
| Decision Date | 31 May 1897 |
| Parties | THE CITY OF ALBIA, Appellant, v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Appeal from Monroe District Court.--HON. M. A. ROBERTS, Judge.
ACTION at law to compel the defendant to construct and maintain a crossing over its right of way in one of the streets of the city of Albia; and to assess the damages defendant has sustained by reason of the taking of part of its right of way for highway purposes. There was a trial to a jury, resulting in a verdict and judgment finding that defendant was entitled to damages in the sum of four hundred and twenty-one dollars and that plaintiff should build and maintain at its own expense the viaduct needed to effectuate the crossing. The judgment further required of plaintiff that it elect within one year whether it would pay the damages and use the defendant's right of way for street purposes,--in default of which its right to take and use the property was barred. From this judgment and order plaintiff appeals.
Affirmed.
W. A Nichol and D. M. Anderson for appellant.
T. B Perry for appellee.
In the year 1878 the appellee constructed what is known as its "South Track" through the city of Albia. It was built in a cut about one hundred and twenty feet wide and thirty feet deep. Appellee's right of way at the point in question is four hundred feet wide. At the time the track was laid, Clinton street, in the city of Albia, which runs north and south, terminated at what is known as "Cousin's Addition," about forty rods north of appellee's right of way. Thereafter, the land through which the railway runs was platted into town lots, streets, and alleys as Cousin's addition, and Clinton street was extended southward across the right of way and on to the southern limits of the city. In April, 1894, the city accepted the dedication of the extension of Clinton street, and requested of the railroad company that it be allowed to use a strip of ground sixty feet wide and four hundred feet long over its right of way, in order to prolong the street and connect Cousin's addition with the original city. This, appellee refused to do, except on condition that appellant should keep up and maintain the necessary crossing and cattle guards. Appellant brought this action to have the court assess the amount it should pay for the crossing; and make such orders as should secure the strip of land needed for its use, in effectuating the crossing. The trial court instructed the jury that the appellee was not required to construct and maintain a bridge over its right of way, that the law imposed that duty upon the appellant, that appellant was obligated to remove at its own expense all the earth needed to enable it to construct a crossing, and that appellee was entitled to four hundred and twenty dollars, the value of the bridge then standing at the place of crossing, and the further sum of one dollar as damages for the invasion of the strip of ground. It is from this finding and the resulting judgment that the appeal is taken.
Appellant contends that, whenever an incorporated town or city desires to extend one or more of its streets over an existing railway track or right of way, it is incumbent on the railway company to construct the crossing, whether it be at grade, above or under the track; while appellee contends (1) that, as the land included within its right of way was already burdened with a public use, it could not be incumbered by another, except by express legislative enactment, and (2) that the only act of the legislature authorizing such new use or servitude has reference solely to grade crossings, and cannot be so extended as to require of it the construction and maintenance of a viaduct or overhead crossing of its right of way. In the case of C., M. & St. P. R'y Co. v. Starkweather, 97 Iowa 159, we said 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. Applying this doctrine to the facts of that case, we held that an incorporated town had authority, under Code, sections 464-470, 1270, to condemn a strip across a previously acquired railroad right of way for the purpose of extending and connecting its streets, and concluded by saying: We have it established, then, as a general rule, that an incorporated city or town may lay out and establish streets over the right of way of a railway company to the same extent as it may over other private property; and it follows that the city of Albia had the right to extend and prolong Clinton street as it did.
But the question remains, who is to pay for the viaduct needed to effectuate the crossing? It is no doubt true that in the absence of express legislation, a railroad company cannot be required to construct viaducts over its right of way, in order to prolong or connect streets or highways established after the location and acquisition of...
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