Getchell & Martin Lumber & Mfg. Co. v. Des Moines Union Railway Co.

• Decision Date: 15 October 1901
• Citation: 87 N.W. 670,115 Iowa 734
• Parties: GETCHELL & MARTIN LUMBER AND MANUFACTURING COMPANY, Appellant, v. DES MOINES UNION RAILWAY COMPANY
• Court: Iowa Supreme Court

87 N.W. 670

115 Iowa 734

GETCHELL & MARTIN LUMBER AND MANUFACTURING COMPANY, Appellant, v. DES MOINES UNION RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

October 15, 1901

Appeal from Polk District Court.--HON. S. F. PROUTY, Judge.

ACTION to enjoin the use of a portion of an alley by defendant for any purpose other than a side track, and for specific performance of agreement to vacate. Decree granting first part of relief as prayed, and denying the last. Plaintiff appeals.

Reversed.

Clark & McLaughlin for appellant.

Cummings Hewitt & Wright for appellee.

OPINION

LADD, J.

The plaintiff's property abuts the east and west alley between Cherry and Vine streets in the city of Des Moines. In 1881 the city granted to the defendant's assignor the right of way "to lay down a single or double track, with side tracks," etc., on this and other public alleys and streets, "upon the express condition that the injury to property abutting upon the streets and alleys upon which such railway track is proposed to be located or laid down shall be ascertained at the time and in the manner provided by the statute of this state." The defendant proposed to construct a side track near the south side of this alley, and on the 22d day of March, 1894, entered into an agreement with plaintiff containing these provisions: First, "The parties of the first part consent to the construction and operation of said track upon said alley, and near the south line thereof, and waive all damages on account of the construction of said track and the operation of trains thereover." Fourth. "And it further agrees that, if at any time it becomes necessary to close Eighth street or the north and south alleys heretofore named, it will vacate said track, or so much thereof as the parties of the first part may require, upon thirty days' written notice of such requirement." The side track was accordingly placed in the alley, and has been used by the company until the present time. In 1897 the Chicago Great Western Railway Company proposed the erection of a freight house along the "north side of block four, adjacent to Cherry street," and made application to the city council "for the vacation of the north and south alley in the north half of block four (4), original town of Fort Des Moines, and of the north and south alley in the north half of block nine (9), Hoxie's addition," the very alleys mentioned in the above agreement. On condition that the east and west alley should be kept as well as formerly, plaintiff with the other property owners, including defendant, signed a paper freely consenting "that the said parts of the alley named be so vacated and granted to the use of said Chicago Great Western Company." Subsequently an ordinance vacating said alleys was passed by the city council and duly approved, based on said application and consent. Thereafter the plaintiff, by written notice, demanded the removal of the side track within 30 days, and upon defendant's failure to comply this action was brought to compel it to do so. Other relief sought, having been granted, requires no attention.

Did the vacation of the alleys become "necessary," within the meaning of the contract? The answer to this inquiry depends largely upon the meaning to be accorded that word. It cannot be said that plaintiff's consent...