Dubuque & D.R. Co. v. Diehl
| Decision Date | 23 October 1884 |
| Citation | 21 N.W. 117,64 Iowa 635 |
| Parties | THE DUBUQUE & DAKOTA R'Y CO. v. DIEHL, SHERIFF, AND HATHWAY, INTERVENOR |
| Court | Iowa Supreme Court |
Appeal from Wright Circuit Court.
ACTION to recover of defendant, Diehl, money paid to him as sheriff in proceedings had under the statute for a condemnation of a right of way for a railroad. Hathway intervened, claiming the money on the ground that he was the owner of the land. A demurrer to plaintiff's answer to the petition of the intervenor was sustained. From this ruling the plaintiff appeals.
REVERSED.
McKenzie & Hemingway, for appellant.
Nagle & Weber, for appellee.
I.
The cause being before us for decision upon questions arising on demurrer to the answer of intervenor's petition, thus requiring determination of the sufficiency of the pleadings, they must be set out with particularity.
The petition alleges that in 1881 plaintiff, being the owner of the right of way for a railroad over certain land in Wright county, which it had acquired by purchase from the Iowa & Pacific Railway Company, sold and transferred it to the Iowa Central & Northwestern Railway Company, in the following manner and under the following circumstances: The company last named stealthily and by force attempted to take possession of the right of way owned by plaintiff over the land in question, and other lands, and proceeded to condemn the same under the provisions of the statute, and thereupon plaintiff commenced a proceeding to enjoin them from proceeding farther in the matter. Pending the litigation, an amicable settlement was made between the parties, in which it was agreed that the Iowa Central & Northwestern Railway Company should pay plaintiff compensation agreed upon for the work done upon the railroad track, and such further sums as should be assessed by the jury in the condemnation proceedings, the whole amount thus determined to be paid to the sheriff of Wright county for the use and benefit of plaintiff. Under this agreement the right of way was condemned, and the damages assessed were paid to the defendant, Diehl, who was, at the time, sheriff. He now refuses to pay the money to the plaintiff.
The sheriff, answering the petition, admits that he received the money as alleged in the plaintiff's petition. He alleges that the right of way in question was condemned in 1870, or 1871, by the Iowa Central & Northwestern Railway Co., and in those years some work was done upon the track, but the enterprise was abandoned in 1871, and was not again resumed until 1881, and the owners of the land upon which the right of way is located now claim the money in his hands, and have made demand therefor. He avers that he is ready and willing to pay the money to the parties entitled to receive it, as determined by the decision of the court.
Hathway filed a petition of intervention, alleging that he is the owner of the land upon which the right of way in question is located; that it was condemned in 1870 or 1871, and some work was done upon the railroad track on his lands in the year 1871, or the prior year, but none was done afterwards until the spring of 1881. He claims that the right and title to the land occupied by the right of way has reverted to him by abandonment and failure of the railroad company to resume work within eight years, and that he is therefore entitled to the money in the hands of the sheriff, paid under the last condemnation.
To the petition of the intervenor, the plaintiff answers, setting up the following facts, in addition to others alleged in the petition: The Iowa & Pacific Railway Company was organized in 1872, for the purpose of building a railroad from Sumner, in Fayette county, to Belmond, in Wright county, and caused the track to be graded between the towns named prior to the fall of 1872, but the enterprise was prosecuted no farther until 1879, when the right of way from Sumner to Belmond was purchased by plaintiff, and the further construction of the road was at once commenced. It was built from Waverly to Hampton, a distance of forty miles, in 1879, and from Waverly to Sumner, a distance of twenty-three miles, in 1880. Preparations were made in 1880 to proceed with the construction of the road from Hampton to Belmond. It is alleged that plaintiff, after it acquired the right of way, was continually engaged, when the weather would permit, in constructing the road and laying the track until the spring of 1881, when it disposed of the right of way from Hampton to Belmond in the manner alleged in the petition. Plaintiff denies abandonment of the road, and alleges that since it acquired the right of way it has been continuously engaged in building the railroad. It alleges that the intervenor, or his grantor of the land over which the right of way in question is located, received compensation therefor in 1872, and neither has refunded the amount received.
To plaintiff's answer to the petition of intervention the defendant and intervenor demurred, upon the ground substantially, that it shows that the work of constructing the railroad ceased in 1872, and since that date it has not been used or operated in any manner, and that there has therefore been for more than eight...
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