Esclick v. Mason City & Ft. D. Ry. Co.

• Decision Date: 10 October 1888
• Citation: 39 N.W. 700,75 Iowa 443
• Parties: ESCLICK ET AL. v. MASON CITY & FT. D. RY. CO.
• Court: Iowa Supreme Court

75 Iowa 443

39 N.W. 700

ESCLICK ET AL.

v.MASON CITY & FT. D. RY. CO.

Supreme Court of Iowa.

October 10, 1888.

Appeal from district court, Webster county; S. M. WEAVER, Judge.

Plaintiffs own a tract of land in Lehigh, on which is situated a two-story building. The lower story is used for business purposes, and the second story as a residence. Defendant constructed its railway in the street upon which the property abuts, and this action was brought for the recovery of damages for the injury to the property occasioned thereby. There was a verdict and judgment for plaintiffs. Defendant appealed.A. N. Batsford, for appellant.

Chase & Chase, for appellees.

REED, J., ( after stating the facts as above.)

1. It was not alleged in the original petition that Lehigh is incorporated. During the progress of the trial plaintiff was permitted, over defendant's objection, to file an amendment alleging that the town is incorporated. No answer was filed to that amendment, and the court instructed that the incorporation of the town was admitted.These rulings are assigned as error. The statute under which the action was brought (Code, § 464) affords a remedy to a property owner for the injury to his property caused by the construction of a rail way in the street on which it abuts, only when it is situated in an incorporated town or city. The allegation that the town was incorporated was therefore “material to the case,” and, under section 2689, it was within the discretion of the court to permit it to be made by amendment at any time. The allegation was not denied by any pleading filed subsequent to the amendment. It is true, the answer to the original petition contains a general denial of all the allegations therein contained. But that did not put in issue the allegations of additional facts contained in the amendment subsequently filed “Every material allegation in a pleading not controverted by a subsequent pleading shall, for the purposes of the action, be deemed true.” Code, § 2712. The court, against defendant's objection, admitted parol evidence tending to prove that the town is incorporated. But, as that fact was not in issue, no prejudice resulted from the admission of the evidence, conceding that it is incompetent.

2. Witnesses who gave their opinion as to the extent to which the value of the property was depreciated by the construction of the track in the street were permitted, against defendant's objection, to describe the condition in which it had been maintained. Their testimony tended to prove that, as constructed and maintained, the tops of the rails were from eight to ten or twelve inches above the natural surface of the street, which was shown to be at about the established grade. By the ordinance granting to defendant the right to use the street, it is required to conform its track to the established grade. The objection urged against the evidence is that defendant, if its track, as constructed and maintained, is an unreasonable obstruction of the street, may be compelled to change it; and that plaintiff is therefore not entitled to recover on the theory that it will always be maintained in its present condition. The evidence was not...