Clark v. Wabash R. Co.
| Decision Date | 24 October 1906 |
| Citation | 109 N.W. 309,132 Iowa 11 |
| Parties | JOSEPH A. CLARK v. WABASH RAILROAD CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Monroe District Court.--HON. C. W. VERMILLION, Judge.
T. B Perry, for Appellant.
Ben McCoy, Ralph Mason and Fred Townsend for appellee.
I.
T. L Tulis acquired title to the land in controversy September 13 1899, and on October 29, 1900, conveyed it to Joseph A Clark. On October 1, 1899, the defendant took possession of a strip through it, formerly occupied as a right of way by another company, but not used since 1888, and constructed its road thereon. The facts of the case bring it within the ruling of Remey v. Railway Co., 116 Iowa 133; approved in Russell v. Railway Co.., 99 N.W. 1131; Gray v. Iowa Central Ry. Co., 129 Iowa 68, 105 N.W. 359. As Mr. Justice Bishop entertains the views expressed by the dissenting judges in Remey v. Railway, supra, the members of this court are equally divided. In this situation the opinion of the trial judge must prevail, and the ruling of the district court herein be affirmed by operation of law.
II. Conceding the ruling referred to above to have been correct, the defendant was a trespasser and continued to be such until long after Clark acquired title to the land. Tullis began an action for damages occasioned by the trespass of the defendant, not for the value of the easement taken, in December, 1899, and this was prosecuted by him until after the proceedings in this case were begun. A demurrer to the petition therein was then sustained and the action discontinued. The ground of this ruling does not appear, but there would seem to be little doubt that the former owner had a right of action for any damages occasioned by the trespass while he owned the land. Henry v. Dubuque, etc., Ry. Co., 10 Iowa 540. See cases collected in 15 Cyc. 993. But the trespass was continued after Clark received the title, and he might elect to sue for possession or to enjoin the continuance of the use of the land by defendant or institute condemnation proceedings. See Conger v. Railway Co., 41 Iowa 419; Daniels v. Railway Co., 35 Iowa 129; Birge v. Railway Co., 65 Iowa 440; Donald v. Railway Co., 52 Iowa 411. As held in the last case, the defendant, though liable to the present owner for its trespass since he acquired title, was not liable to him for any injuries sustained by his grantor. The owner may at any time waive the trespass, refrain from ejecting the trespasser, and treat the corporation as though it desired to enter into and lawfully occupy the land and acquire it, under the provisions of the law, to make just compensation. Hibbs v. Railway Co., 39 Iowa 340. This is precisely what plaintiff did; but, as the land cannot be said to have been taken from him prior to the time he became owner, the damages should be estimated as of that date, to-wit, October 29, 1900.
No objection was interposed to the evidence of market value before and immediately after the construction of the road, and for this reason defendant is not in a situation to complain of the estimation of damages as of that time. But it did except to the instruction allowing interest on the damages from that date. This may be corrected by a modification of the judgement.
III. The conveyance from Tullis to Clark was "subject to all...
To continue reading
Request your trial