Davis v. Des Moines & Ft. D. R. Co.

• Decision Date: 13 March 1912
• Citation: 135 N.W. 356,155 Iowa 51
• Parties: DAVIS ET AL. v. DES MOINES & FT. D. R. CO. ET AL.
• Court: Iowa Supreme Court

155 Iowa 51

135 N.W. 356

DAVIS ET AL.

v.DES MOINES & FT. D. R. CO. ET AL.

Supreme Court of Iowa.

March 13, 1912.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Suit in equity to enjoin defendants from using certain railway tracks over plaintiffs' land, except to reach a coal mine near plaintiffs' property. Defendants claim the right to use the tracks under the terms of a written lease and in virtue of certain condemnation proceedings instituted by the defendant Des Moines & Ft. Dodge Railroad Company. Plaintiffs say that the lease is not broad enough in its terms to cover the use being made of the tracks, and that, if it is, it should be so reformed as to give defendants nothing more than the privilege of hauling coal over the tracks, and that the condemnation proceedings are void, because instituted for a private purpose, and invalid, because in fact instituted by a private corporation, to wit, the cement company and for its individual use. An estoppel was also pleaded by defendants. On these issues, the case was tried to the court, resulting in a decree dismissing plaintiffs' petition, and they appeal. Affirmed in part and reversed in part.J. G. Myerly, for appellants.

Geo. W. Seevers, W. H. Bremner, and E. D. Samson, for appellees Des Moines & Ft. D. R. Co. and Minneapolis & St. L. R. Co.

Guernsey, Parker & Miller, for appellee Iowa Portland Cement Co.

DEEMER, J.

In August of the year 1904, plaintiffs leased to George Simpson and Peter Reynolds the coal under about 57 acres of land owned by them, located in the southwestern part of the city of Des Moines. This lease was in writing, and, among other things, it granted the lessees the following: “The said party of the first part also grants to the said party of the second part a strip of surface for a right of way across the above described land for a railroad track to the mine of the party of the second part, which the party of the second part expects to locate on the land of the T. E. Brown estate. The said party of the second part agrees to pay for the above considerations the sum of twelve and one-half (12 1/2) cents per ton on all lump coal they mine from underneath said land and they further agree to pay to the said party of the first part the sum of $2.00 per acre per year as advance royalty from August 1, 1904, until they commence to mine coal from said premises, said advance royalty to apply on coal mined when said second party reaches said coal with their entries and driveways. * * * The said first party also agrees to permit the said second party to prospect for coal any time during the first six months after the date of this agreement and if they fail to find workable coal, then this lease shall have no further force or effect and in that event the said second party agrees to pay the said first party a reasonable price for the surface of the land taken up for a right of way. * * * This lease to continue for twenty (20) years, or until the workable coal is exhausted.”

This lease was assigned to the Hollingsworth Coal Company, which sunk a shaft on land adjoining that of plaintiffs on the west, and commenced taking coal from under plaintiffs' land some time in the year 1905, through the shaft just mentioned. The Hollingsworth Company assigned all its right, title, and interest in and to the right of way provided for in the lease to the Des Moines & Ft. Dodge Railroad Company, and the railroad company agreed, as part consideration for the assignment to build a railway to the shaft. The exact provision with reference to this railway was as follows: “The said railroad company agrees to construct upon a right of way to be procured and furnished for that purpose by the coal company a single track railroad extending from a connection with the main line track of said railroad company at a point about one-half mile east of Valley Junction, in Polk county, Iowa, to the mine of the Hollingsworth Coal Company, in the southwest quarter of section 13, township 78, range 25, Polk county, Iowa, and to construct and operate at said mine in connection with said railroad track, such switches and storage tracks as may be necessary for the accommodation of the business of mines of the coal company. The entire cost of constructing said railroad track with the switches, storage tracks and all instrumentalities necessary for its construction and operation shall be borne by the railroad company except that the cost of a bridge to be constructed for the purpose of carrying said railroad over and across the Raccoon river shall be divided equally between the parties hereto. The entire cost of constructing the grade upon said right of way ready to receive the ties and rails to be laid thereon by the railroad company as hereinbefore provided shall be borne by the coal company. When said coal company shall have mined and delivered to the railroad company for transportation over its said railroad fifty thousand (50,000) tons of coal produced from the mines of said coal company, the railroad company shall thereafter credit or remit to said coal company the sum of two dollars and a half ($2.50) per car upon each car of coal thereafter shipped over its railroad from the mines of said coal company until the entire cost of construction of said grade and the fifty per cent. (50%) of the cost of construction of said bridge, advanced by the coal company, shall have been refunded and returned to the coal company; the purpose being to reimburse said coal company for the expense of building said grade and bridge by such credit of two dollars and a half ($2.50) per car upon all coal carried in excess of fifty thousand (50,000) tons, it being understood that the railroad company shall not be liable for such reimbursement in any other manner than by such credit. The refund or credit of two dollars and a half ($2.50) per car shall not apply to any car loads of coal handled at switching rates. The necessary grading shall be done by said railroad company and the cost thereof shall be repaid to it by the coal company as the work progresses and the expense of construction is incurred. The coal company shall proceed at once by condemnation or purchase to procure the necessary right of way for the construction of said track, and when it has procured good and sufficient legal title thereto, it shall convey the same to said railroad company by a deed sufficient to vest in said railroad company all right, title, and interest therein acquired by the coal company by such condemnation or purchase. The railroad company shall bear the entire cost and expense of construction, maintenance and operation of the track hereinbefore referred to, including the switches, spur tracks and all instrumentalities provided for use in connection therewith.”

Pursuant to this agreement, the railway built a track over plaintiffs' land, and also onto and upon the land of one Chas. Davis, which adjoined plaintiffs' land on the west. The railway track so constructed was used for the sole purpose of transporting coal from the shaft on the Chas. Davis land from the time of its construction down until the year 1910; and it is claimed that none of the parties to the original lease and none of the assignees thereof ever thought or understood that the right of way was other than a private one, created to facilitate the mining of coal from the plaintiffs' lands and those immediately adjacent thereto. It appears that in securing this right of way the original lessees represented that they wished it for the purpose of hauling coal from the shaft to a connection with a railway to the east of plaintiffs' land. The Iowa Portland Cement Company constructed a plant for the manufacture of cement, some time in the year 1909, upon some land southeast from that owned by plaintiffs, and in that year began the construction of a switch running east from and connecting with the coal road on plaintiffs' land, and in the following year completed the same, so that it had a track leading from its works over the switch constructed by the railway to a junction with a railway owned by one of the defendants. This switch or track was constructed by the cement company under a contract with the Des Moines & Ft. Dodge Railroad Company, from which we extract the following:

“Whereas, the railroad company owns and operates a spur track from Valley Junction, Iowa, to the coal mines of the Hollingsworth Coal Company, a short distance from Valley Junction, Iowa, and from the main line of the road of the railroad company; and whereas, the cement company owns real estate located near said spur track and is erecting thereon a plant for the manufacture of Portland Cement and desires to connect its said plant with the main line of said railroad company's railroad at Valley Junction by a spur track to the Hollingsworth Coal Company's said mine, so that cars can be moved to and from its said plant and the railroad company's main track and its connections; and whereas, the cement company has arranged with the Chicago, Rock Island & Pacific Railway Co. for the transportation of rock and shale for the use of its manufacturing plant, and has agreed with the said Chicago, Rock Island & Pacific Railway Company to provide at its own sole cost and expense spur or switch tracks connecting the cement plant at Des Moines with the lines of the Chicago, Rock Island & Pacific Railway Co., and allow the Chicago, Rock Island & Pacific Railway Co. to have the free us of said spur or switch tracks in connection with the business of the cement company: It is therefore mutually agreed:

First. That the cement company shall locate, construct and maintain a single spur track from its said property and trackage thereon to connect with the said Hollingsworth spur track at the point indicated on the blue print attached hereto and made a part hereof, which connection shall be made under the supervision of the chief engineer of the railroad company and in the...