Des Moines City Railway Co. v. City of Des Moines
| Decision Date | 30 September 1916 |
| Docket Number | 30694 |
| Citation | 159 N.W. 450,183 Iowa 1261 |
| Parties | DES MOINES CITY RAILWAY COMPANY, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
SUPPLEMENTAL OPINION ON REHEARING, DECEMBER 20, 1917.
REHEARING DENIED JUNE 27, 1918.
Appeal from Polk District Court.--W. H. MCHENRY, Judge.
THE plaintiff's property having been assessed for the expense of paving and curbing Ingersoll Avenue in the City of Des Moines, appealed therefrom to the district court, where the assessments were held to be invalid, and set aside. From that decision, the defendant city appeals.
Reversed.
H. W Byers, Guy A. Miller, Thomas Watters, Jr., and Earl M. Steer for appellant.
Parker, Parrish & Miller, for appellee.
There is very little controversy as to the essential facts involved in this litigation. The plaintiff claims to own and operate a system of street railways in the city of Des Moines, and to own and occupy a right of way for its road 20 feet wide, extending from Twenty-eighth Street on the east to Forty-second Street on the west, in that city. The nature and extent of the title by which this right of way is held is the subject of much argument by counsel, and will be more particularly considered in the course of this opinion. Originally, the corporate limits of the city of Des Moines did not extend west of a point between Thirty-seventh and Thirty-eighth Streets. Westward from this point, the property under consideration was within the limits of the incorporated town of Greenwood Park, which has since been absorbed by or incorporated in to the city of Des Moines. In the year 1888, the town of Greenwood Park, by ordinance, granted to plaintiff's grantor, the Des Moines Rapid Transit Company, the right to construct its railway upon a 65-foot street, running east and west through said incorporated town, and to operate the same by steam, cable, or electric motor, but not for general railway purposes. Included in said ordinance was a provision as follows:
Availing itself of the benefits thus offered, the Transit Company obtained from the abutting property owners deeds or agreements to dedicate to the public for street purposes a strip of land 17 1/2 feet wide on either side of the original street, and a waiver of their rights, if any, to recover damages because of the location and construction of the railway. Having thus complied with the condition of the grant from the city, the company did appropriate the strip to its exclusive use, and has ever since maintained possession thereof. Each dedicator to the additional land also agreed that the company should have exclusive right to the 20-foot strip, while the company agreed to "confine the use of said right of way to the transfer of passengers and small freight traffic." Eastward from the border of Greenwood Park, as we infer from the record, there was not, at that date, any street or highway yet established on this line into the city of Des Moines; and the company's right of way in that direction to Twenty-eighth Street was procured as follows: The owners of the intervening tracts of land were Washington Miller, A. H. Murphy, John H. Mullin, Nellie L. Harding, John A. Garver, and Walter McCain. These proprietors conveyed to the company a continuous strip of land, 20 feet wide, across their respective lots, and by the same instrument undertook to dedicate and open for public use through such lot "a street or roadway 40 feet wide on either side and abutting upon said 20-foot strip." By the terms of each conveyance, the grantors undertook to "sell and quitclaim unto the Des Moines Rapid Transit Company, its successors and assigns, all our interest" in the 20-foot strip of land. In some of the conveyances, the expression is, "do bargain, sell and quitclaim to said company and to its successors and assigns forever, all our right, title and interest, estate, claim and demand both in law and in equity as well in possession as in expectancy." In each deed, it is also provided that the strip so conveyed is to be used for the construction and operation of a street railway thereon. In five of the six deeds, there is the further provision that, in the event of the abandonment of the use of the 20-foot strip for street railway purposes, "it shall revert to the grantors." In the other deed, it is provided that, in the event of such abandonment, "it shall revert to the public as a part of said highway." The public way through which this right of way extends is now known as Ingersoll Avenue, and all the rights of the Rapid Transit Company under the ordinance of the town of Greenwood Park, as well as under the various written agreements and conveyances by the property owners, are now vested in the plaintiff, the Des Moines City Railway Company. The 20-feet strip, except as it is crossed by intersecting streets, has, at no time since its acquirement by the railway company, been occupied, used, or claimed as a part of the public street, but has been used and controlled exclusively by the railway company. It is separated by a curb from the street on either side; and, though the public ways are paved, there is no paving upon the strip, save at the crossings above mentioned. Passengers upon the cars are received and discharged at the crossings.
Under proper proceedings, therefore, the city of Des Moines, by its council, ordered the paving and curbing of the roadway bordering upon this strip, at the expense of the property abutting thereon; and, upon the theory that such strip was abutting property, liable to contribute to such expense, made the assessments which are here in controversy. At the proper time, the plaintiff appeared before the city council, and made objection to these assessments. Of the objections so filed, reliance in this court is placed upon the following:
(1) That the 20-foot strip is not, within the meaning of the statute or of the ordinance, "abutting property," and is in no manner liable to such special assessment.
(2) That the statute providing for special assessments upon railroad right of ways for street improvements has no application to street railways, and that there is no statute giving the city or its council power or authority to charge a street railway company, or its property, with a burden of that nature.
On trial of the appeal, the district court sustained the assessment, so far as it related to the cost of paving between the rails and one foot on either side thereof, where the track crossed the intersecting streets, but held that the right of way was not abutting property, within the meaning of the law, and ordered the cancellation of the assessment which had been made thereon. From this part of the decree, the defendant city appeals.
I. The first proposition on which appellee relies to sustain the decree, is that the company is not the owner of the property embraced in the 20-foot strip, and that its interest therein is a mere easement, the title to the land being in the persons or parties granting the easement. It is then argued that the land in question, being used as a mere right of way, is not subject to assessment for street paving. It seems clear, however, that the appellee's title is something more than an easement. The conveyances under which it occupies and exercises dominion over the 20-foot strip do not limit their legal effect to a right of way only. No mention of a right of way, either in terms or by words of necessarily equivalent meaning, is to be found in any of the deeds. In each, the owners of the tract convey, sell and quitclaim to the grantee all their right, title, and interest in the land, and not merely in the right of way. It is not denied that the grantors owned and had the right to convey the land; and their deeds, in form and in substance, were sufficient to vest a fee in the grantee. This is none the less true because each deed embodied a statement that the land is to be used for the construction and operation of a street railway, and provides that if, in the future, it shall be abandoned for that purpose, it shall revert to the grantor or to the public. A condition in a deed by which the property is to revert to the grantor, upon an event which may or may never occur, gives rise to what the books call the "possibility of reverter," and serves, in some degree, to qualify the fee created by the conveyance. But it remains true that an estate so conveyed is, nevertheless, a fee; and the grantee thereof is the owner, so long as the estate continues, and until the reverter takes place. 4 Kent's Commentaries 10; State v. Brown, 27 N.J.L. 13; Whiting v. Whiting, 4 Conn. 179; Tiedeman on Real Property, Sec. 271. Speaking of the passing of title to land, subject to a possibility of reverter in the grantor, the Massachusetts court has said:
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