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

• Decision Date: 12 May 1894
• Citation: 90 Iowa 770,58 N.W. 906
• Parties: DES MOINES CITY RY. CO. v. CITY OF DES MOINES ET AL.
• Court: Iowa Supreme Court

90 Iowa 770

58 N.W. 906

DES MOINES CITY RY. CO.

v.CITY OF DES MOINES ET AL.

Supreme Court of Iowa.

May 12, 1894.

Appeal from district court, Polk county; S. F. Balliett, Judge.

Action in equity to restrain the defendants from removing or otherwise interfering with part of the railway track of the plaintiff. There was a hearing on the merits, and a decree in favor of the defendants. The plaintiff appeals. Reversed.Guernsey & Baily, for appellant.

Hugh Brennan and J. E. Mershon, for appellees.

ROBINSON, J.

The plaintiff is a corporation organized and existing under the laws of this state, and owns, and is engaged in the business of operating, a system of street railways in the city of Des Moines. The system includes what is known as the “Eleventh and Twelfth Street Line,” the “Clark Street Line,” and the “Jefferson Street Line.” The Clark street line is a prolongation of the Eleventh and Twelfth street line, and is a little more than two miles in length. The Jefferson street line is somewhat shorter. The portions of Des Moines reached by these lines contain a large number of people, many of whom depend upon the street railway for transportation to the business part of the city, and have no other convenient means of reaching it. The Eleventh and Twelfth street line extends on Twelfth street from School street to University avenue,--a distance of 2,552 feet,--and is the part of the railway in controversy. It consists of a single track of two rails, placed in the center of the street, and has been in use for several years. In May, 1893, the city of Des Moines entered into a contract with Bryan & Youngerman for the construction of what is known as “Sewer No. 2,” which included a pipe sewer in Twelfth street where the railway in controversy is located. The city claims the right to construct the sewer in the center of the street, and to compel the temporary removal of the track for that purpose. The defendants Finkbine and Chase, as the board of public works of the city, have notified the plaintiff to remove its track to permit the construction of the sewer, and the plaintiff seeks to prevent all interference with the track. The district court dismissed the petition, and adjudged that plaintiff pay the costs of the action.

The plaintiff is the assignee and owner of the rights conferred upon the Des Moines Street Railway Company by an ordinance of the city of Des Moines passed in the year 1866, and of the railway system which has been constructed under that ordinance and the amendments thereto. Some questions arising under that ordinance were considered by this court in Des Moines St. Ry. Co. v. Des Moines B. G. St. Ry. Co., 73 Iowa, 515, 33 N. W. 610, and 35 N. W. 602;Id., 74 Iowa, 586, 38 N. W. 496. It was held in those cases, in effect, that the ordinance and its acceptance constituted a valid contract between the city and the street-railway company. In securing the contract for building the sewer, the contractors believed it would be placed in the center of the street, and perhaps were authorized to act upon that belief, for the reason that most of the sewers of the city had been placed in the center of the streets through which they were constructed, and possibly for other reasons. The contract, however, did not specify in terms in what part of the street the sewer should be placed, excepting that it should be laid “according to the lines and grades furnished from time to time by the city engineer.” The construction of sewer No. 2 was commenced by the contractor, and progressed to Eleventh street. The plaintiff had a line of railway in the center of that street, and, when it was reached by the contractor, the plaintiff was asked to remove the track to permit the building of the sewer in the center. It agreed to do so on condition that the sewer on Twelfth street should be placed on one side of its track in that street. The proposition appears to have been assented to by the contractor and by Mr. Finkbine, of the board of public works. Thereupon the plaintiff caused to be prepared and submitted to the city council a resolution, of which the following is a copy: “Resolved, that hereafter, where pipe sewers are being put down in the several streets of the city of Des Moines where there is a single track for street-railway purposes, such track being in the center of the street, the sewer...