Darst v. Ft. Dodge, Des Moines & Southern Railway Co.
| Citation | 191 N.W. 288,194 Iowa 1145 |
| Decision Date | 15 December 1922 |
| Docket Number | 34351 |
| Parties | JENNIE E. DARST, Appellee, v. FORT DODGE, DES MOINES & SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--H. E. FRY, Judge.
ACTION to recover damages for injury to plaintiff's farm by depriving plaintiff of the use of a public highway for some distance in front of the building site on said farm, by the construction by defendant of its railroad track in the highway. The jury awarded plaintiff damages in the amount of $ 3,000. Judgment was entered on the verdict. Defendant appeals. Facts appear in the opinion.
Affirmed.
Dyer Jordan & Dyer and Price & Burnquist, for appellant.
Frank Maher and Healy & Breen, for appellee.
FAVILLE J., takes no part.
I.
Facts showing the situation, sufficient to present the claimed errors, are substantially as follows:
Plaintiff owned a farm containing 240 acres. The highway in question ran east and west along the south side of one 80 of said farm. The highway was a main-traveled road between Fort Dodge and Lehigh, Iowa, and was a part of the highway known as the "Boone Road." This highway turned southward just shortly before it reached the extreme eastern point of plaintiff's land. Plaintiff's farm buildings fronted and abutted upon this highway, being located near the southeast corner of the 80 and immediately north of the point where the highway turned southward, near the eastern end of plaintiff's land. The highway in question was the plaintiff's sole means of getting out of and into his premises, where the buildings were located. Appellant determined to run a line of railway from Webster City to Fort Dodge, and did construct a railway in such manner that the use of the entire highway, for a distance of approximately 500 feet opposite where plaintiff's buildings were located, was entirely cut off and obstructed by cuts. The cuts made in front of the plaintiff's farm buildings, which included his farm home and a tenant dwelling, were 18 to 20 feet deep. After appellant took possession of this part of the road, appellee, when he desired to travel in an easterly or southerly direction from his farm, was required to travel west on the old highway, then across the railroad at a crossing through a small cut, and, after passing over the railway, would have to pass east on a new highway made by appellant, south of its line of railway. This new highway ran east and west on the south side of the railway right of way, approximately the same distance that the old road ran east and west, adjacent to plaintiff's premises. The old and new roads intersected at the westerly end of plaintiff's farm. The public took up the use of the new road. Appellee, after the railroad was constructed, used the old road, when he desired to travel west. The old road, after the new road was laid, was not vacated, but was not kept up by the road officials.
Appellant did not resort to condemnation proceedings, and claimed that such proceedings were avoided by an oral agreement between appellee and appellant, before appellant laid its railway, whereby appellee agreed to accept $ 600 in full payment of all of his damages; and that, after the railroad was constructed, appellee repudiated the agreement, and declined to accept the said sum of $ 600; that appellant relied on said oral agreement; and that plaintiff was estopped, by reason thereof, to claim any sum greater than $ 600, which appellant tendered into court.
II. Appellant strenuously urges, as a ground for reversal, that the verdict was contrary to the evidence, because the great preponderance of the evidence sustained the plaintiff's contention that there was a binding oral agreement between appellant and appellee that appellee was to receive from appellant $ 600 in full payment of all his damages; and that the verdict should have been for $ 600, and no more.
Whether the agreement claimed by appellant was made or not was a fact issue, squarely raised by the pleadings. The testimony on this issue was in direct conflict. Appellee testified:
Appellant's agent, J. J. Foster, testified as to the claimed agreement that, for the sum of $ 600 and the land that lay north of what was the south line of the 80, he (appellee) would convey all of the land north of the south line, and
R. L. Cooper, chief engineer for the defendant, testified that he tendered to appellee a check for $ 600 and a written agreement; that appellee "said he had changed his mind, and wanted more money, but did not deny at that time that he had made any agreement to accept $ 600 in settlement of the damage claimed; and Mr. Darst told me at the time that was the terms of the agreement, but he had changed his mind."
Appellant argues that, while there is a sharp conflict in the evidence, the testimony of Darst amounted to simply a general denial of any agreement to accept $ 600; while appellant's witnesses recited the details of the transaction, as claimed by appellant, and their testimony was of such a character as to carry more convincing weight than the evidence offered by appellee. If we should agree with appellant that its contention has better support in the record than that of appellee, still we must say that an issue of fact on this question was presented to the jury, and in passing on the credibility of the witnesses and the weight of the evidence, the jury found for appellee; and by such finding of the jury, under proper submission, appellant was concluded. Evans v. Corley, 193 Iowa 402, 186 N.W. 883.
III. Appellant complains that the court did not submit to the jury its plea of estoppel, and that such omission was error. As before mentioned, appellant pleaded that there was an oral agreement between appellant and appellee, made prior to the time that appellant began constructing its railway in front of appellee's premises, whereby appellee agreed to accept the sum of $ 600 in full of all his damages; that this sum was tendered to appellee and refused by him; that appellant began its construction work relying upon the agreement thus made; and that by reason thereof appellee was estopped to maintain this action against appellant. We think that appellant's plea of estoppel was adequately submitted to the jury,--although not under the designation of estoppel,--in Instructions 4 and 5, wherein the court told the jury that, if they found the oral agreement as contended by appellant, their verdict should be for $ 600, and no more. Appellant's plea of estoppel,...
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