Dudley v. Minn. & N. W. R. Co.

• Decision Date: 14 May 1889
• Citation: 42 N.W. 359,77 Iowa 408
• Court: Iowa Supreme Court
• Parties: DUDLEY v. MINNESOTA & N. W. R. CO.

77 Iowa 408

42 N.W. 359

DUDLEY

v.MINNESOTA & N. W. R. CO.

Supreme Court of Iowa.

May 14, 1889.

Appeal from district court, Fayette county; L. O. HATCH, Judge.

Proceedings for the assessment of damages for the establishment of defendant's right of way. From an assessment of damage by the jury in the district court the defendant appeals.Fouke & Lyon and Lusk & Bunn, for appellants.

Ainsworth & Hobson and Hoyt & Hancock, for appellee.

GRANGER, J.

The sheriff's jury, to assess the damage for the location of the right of way over plaintiff's land, was summoned at the instance of defendant. The application is for appraisers to assess the damages “for a one hundred foot right of way in and over the following-described tracts or parcels of land, * * * to-wit: The N. 1/2 of S. E. 1/4, and S. W. 1/4 of N. E. 1/4. * * *” The application then directs the sheriff to “appoint six freeholders of the county,” etc., “to assess the damage which the said Dudley will sustain by the appropriation of said right of way.” The language in the notice of appeal is that he appeals “from the award and assessment of damages, * * * sustained by reason of the location and construction of the railroad over and across the following-described real estate:” (then describing the same land as in the application.)

1. The land described is 120 acres, and the plaintiff's farm consists of 318 acres; and on the trial the plaintiff was allowed to prove the damage to the entire farm, and the defendant assigns that as error, and insists that the inquiry should have been limited to the premises described in the notice of appeal. It is to be noticed that neither the application by defendant for the assessment, nor the notice of appeal by plaintiff, in any manner indicates that there is to be an assessment of damages only to the premises described; but in the application for an assessment the premises are described as those crossed by the right of way, and the damages are such as he will “sustain by the appropriation of the right of way.” The premises from which the right of way is taken are described, and the damages legitimately resulting therefrom are to be assessed. It is from such an assessment that the plaintiff appealed to the district court.

The case is stronger against appellants than Cox v. Railroad Co., 41 N. W. Rep. 475. It is unnecessary to refer to the many authorities bearing upon the right of assessment in such cases, as the plaintiff, by his application, has asked for all damages legally resulting from the appropriations; and, when a farm is crossed on a right of way, that the damage to the entire farm may be considered in estimating damages, is hardly an open question in this state. There is nothing in the case of Ball v. Railroad Co., 32 N. W. Rep. 354, not in harmony with this holding. It is not held therein that all the land damaged must be described in the papers in such cases. In commenting on the testimony some language is used as to certain lands not being described in the papers. It is used evidently more with reference to the confused state of the record than otherwise, as it seems some of the land was not traceable to any definite location.

2. Complaint is made of the seventh instruction given by the court in these words: “You will notice that your inquiry is not confined to the three forties actually crossed by the railroad, but you are required to ascertain from the evidence the damages which the plaintiff will sustain in consequence of this appropriation.” It is in harmony with the rule herein announced as to...