Des Moines City Ry. Co. v. City of Des Moines

• Decision Date: 30 September 1916
• Docket Number: No. 30694.,30694.
• Citation: 183 Iowa 1261,159 N.W. 450
• Parties: DES MOINES CITY RY. CO. v. CITY OF DES MOINES.
• Court: Iowa Supreme Court

183 Iowa 1261

159 N.W. 450

DES MOINES CITY RY. CO.

v.CITY OF DES MOINES.

No. 30694.

Supreme Court of Iowa.

Sept. 30, 1916.

Appeal from District Court, Polk County; 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, he 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, and Thomas Watters, Jr., all of Des Moines, for appellant.

Parker, Parrish & Miller, of Des Moines, for appellee.

WEAVER, J.

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 into 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:

“Sec. 3. That if said Rapid Transit Company shall procure said street running east and west, as aforesaid, to be increased in width so that its entire width shall be 100 feet, it shall have the right to appropriate a strip thereof ten feet wide on each side of the center line thereof for its exclusive right of way, and shall not in such case be compelled to pave said 20-foot right of way except at street crossings, but shall curb the same whenever said street shall be ordered to be paved, with such material as shall be ordered by said town council, and maintain said curbing.”

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 dedication of 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 is now vested in the plaintiff, the Des Moines City Railway Company. The 20-foot 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 therefor the city of Des Moines by its council ordered the paving and curbing of the roadways 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: First, 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; second, that the statute providing for special assessments upon railroad rights of way 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 1 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.

[1][2][3][4] 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 conveyed 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 embodies 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 any 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 Comm. 10; State v. Brown, 27 N. J. Law, 13; Whiting v. Whiting, 4 Conn. 179; Tiedeman on Real Property, § 271. Speaking of the passing of title to land subject to a possibility of reverter in the grantor, the Massachusetts court has said:

“Until the happening of the contingency, or a breach of the condition by which the precedent estate is determined, it retains all the characteristics and qualities of an estate in fee. Although defeasible, it is still an estate in fee. The prior estate may continue forever, it being an estate of inheritance, and liable only to determine on an event which may never happen.” Church v. Grant, 3 Gray (Mass.) 150, 63 Am. Dec. 725.

See, also, Breckinridge v. R. R. Co. (N. J.) 33 Atl. 800;Zinc & Iron Co. v. Canal Co., 44 N. J. Eq. 398, 15 Atl. 227. In the Breckinridge Case the court, construing the effect of a deed to a railway company with “power to take and use the same in all lawful ways for the purpose of the extension of the...