Clayton v. Chi., I. & D. Ry. Co.

• Citation: 67 Iowa 238,25 N.W. 150
• Parties: CLAYTON v. CHICAGO, I. & D. RY. CO.
• Decision Date: 22 October 1885
• Court: Iowa Supreme Court

67 Iowa 238

25 N.W. 150

CLAYTON

v.CHICAGO, I. & D. RY. CO.

Supreme Court of Iowa.

Filed October 22, 1885.

Appeal from Hardin circuit court.

The defendant's railroad is located over part of the plaintiff's farm. The parties were unable to agree upon the compensation to be paid to the plaintiff for the right of way. Commissioners were selected by the sheriff to assess the damages, and they fixed the amount at the sum of $500. The plaintiff appealed from this assessment, and a trial by jury was had in the circuit court. The jury fixed the compensation at $1,000, and the defendant appeals.John Porter and C. E. Albrook, for appellant, Chicago, I. & D. Ry. Co.

S. M. Weaver and B. P. Birdsall, for appellee, Thomas Clayton.

ROTHROCK, J.

1. After the evidence was introduced the defendant requested the court to order the jury to be taken to the farm and make a personal inspection and examination of the premises. This request was denied. The statute (Code, § 2790) provides that “whenever, in the opinion of the court, it is proper for the jury to have a view of the real property which is the subject of the controversy, * * * it may order them to be conducted in a body, under the charge of an officer, to the place,” etc., that such view may be had. This provision of the law is merely directory, or rather it gives the court the option or discretion to send the jury to the place in controversy to view the premises. We cannot interfere with this discretion. It would be an exceedingly difficult matter to show that the court abused its discretion in refusing to make an order of this kind. It appears that in this case a map was used upon the trial showing the farm, and the right of way through it, and the witnesses described fully the situation of the premises, and we suppose the court was correct in holding that a view of the farm was not necessary to enable the jury to understand and properly apply the evidence in the case, and reach a just determination of the rights of the parties.

2. The defendant requested the court to charge the jury as follows: “The defendant railway company, in the case at bar, by proceedings in condemnation acquires only an easement, as it is sometimes called; or, in other words, the right only to use the lands taken for the purpose of constructing and operating its line of railroad, but at the same time leaves the plaintiff or the owner of the premises the right to cross and recross the line at pleasure for the purpose of going from one...