Doud v. Mason City & F. D. R. Co.

• Decision Date: 22 December 1888
• Citation: 41 N.W. 65,76 Iowa 438
• Court: Iowa Supreme Court
• Parties: DOUD v. MASON CITY & F. D. R. CO.

76 Iowa 438

41 N.W. 65

DOUD

v.MASON CITY & F. D. R. CO.

Supreme Court of Iowa.

Dec. 22, 1888.

Appeal from district court, Webster county; J. L. STEVENS, Judge.

Plaintiff, W. V. Doud, appealed from the report of commissioners appointed to appraise the damages caused by the appropriation of land by defendant for right of way purposes. A jury trial was had in the district court, which resulted in a verdict and judgment in favor of plaintiff for the sum of $1,000. The defendant appeals.A. N. Botsford, for appellant.

Theo. Hawley, for appellee.

ROBINSON, J.

Plaintiff is the owner of a tract of land containing about 41 acres, which is situated near the town of Lehigh. Defendant has located and constructed a railway across a portion of this tract, and for that purpose appropriated nearly five acres for its right of way. The question involved in the case is the amount of damages to which plaintiff is entitled by reason of such appropriation.

1. Plaintiff was permitted to introduce evidence which tended to show that the land in question contains beds of coal. This was objected to by defendant, and its admission is assigned as error. It is insisted by appellant that it acquired but an easement in the land, without any right to coal which might lie below its surface; that plaintiff's right to mine and remove the coal was not in any manner affected by the easement, and therefore that the evidence in question introduced an element of value which should not have been considered by the jury. We do not think this position is well taken. The evidence was introduced to show the true character of the land, and had direct relation to its value as an entirety. No attempt was made to show the separate value of the coal which underlaid the right of way. The jury were instructed that the mineral beneath the surface belonged to the owner of the land, and that it could be considered by them only so far as it affected the market value of the land. We understand the well-established rule in proceedings of this character to be that the recovery of the property owner is not limited to the damages which he would sustain if the property were to be used only for the purposes to which it is devoted, when such proceedings are had, but that the value of the property for any purpose for which it is available may be considered. Boom Co. v. Patterson, 98 U. S. 403;In re Furman St., 17 Wend. 669;Goodin v. Canal Co., 18 Ohio St. 169; Young v. Harrison, 17 Ga. 30; Stinson v. Railway Co., 6 N. W. Rep. 786;Railway Co. v. Warren, 12 Pac. Rep. 642;Railway v. Woodruff, 5 S. W. Rep. 792;State v. Moore, 12 Cal. 71. If the property in question had value as coal land, it was proper to show that fact. But it is said that there was no evidence that the coal would be affected by the building of the road. If that be true, then, under the charge of the court no prejudice could have resulted to defendant from the evidence in controversy.

2. The right of way appropriated by defendant was 100 feet in width. Plaintiff was permitted to show that his land outside the right of way was entered upon by defendant, and soil removed in connection with the construction of the railway. In one place the soil was removed outside the right of way to a depth of 4 feet, and for a width, including the right of way, of 221 feet. In ruling upon this evidence the court remarked that it “must be taken into consideration in estimating the difference in value before and after the building of the road.” We think this was erroneous. The proceedings were brought to ascertain the damage caused to plaintiff by the taking of a right of way 100 feet wide for railway purposes. The damages which can be considered in such a proceeding are those which will result from a proper use of the land appropriated in the construction and operation of the railway. Miller v. Railway Co., 63 Iowa, 685, 16 N. W. Rep. 567. Damages which result from an improper construction of the road cannot be considered in such proceeding. King v. Railroad Co., 34 Iowa, 458. If a railway company, in constructing its road, goes upon land outside its right of way, and removes therefrom earth or other property belonging to another, it is a mere trespasser, and is liable as such. See Waltemeyer v. Railway Co., 71 Iowa, 628, 33 N. W. Rep. 140.

It is claimed that the error in question was cured by the instructions, but we do not find this to be the case. It is true, the jury were told that it was the intention of the law to give the land-owner the value of the land actually taken, and in addition thereto the depreciation in value of his adjoining...