Gray v. Iowa Cent. Ry. Co.

• Decision Date: 18 November 1905
• Citation: 105 N.W. 359,129 Iowa 68
• Parties: GRAY v. IOWA CENT. RY. CO.
• Court: Iowa Supreme Court

129 Iowa 68

105 N.W. 359

GRAY

v.IOWA CENT. RY. CO.

Supreme Court of Iowa.

Nov. 18, 1905.

Appeal from District Court, Monroe County; F. W. Eichelberger, Judge.

The opinion states the case. From a judgment in favor of plaintiff, the defendant appeals. Affirmed.Geo. W. Seevers and T. B. Perry, for appellant.

J. C. Mabry, for appellee.

BISHOP, J.

In June, 1902, plaintiff instituted proceedings under the statute (Code, § 1999) to have assessed by a sheriff's jury the damages sustained by her by the taking of certain of her real estate by the defendant for railway right of way purposes. A jury was appointed by the sheriff, and an award made. Therefrom the railway company appealed to the district court. Upon the case being docketed, the railway company filed an answer setting up four several matters of defense. As to three of such matters, a demurrer was sustained. As to the fourth the demurrer was overruled and a reply was filed, and addressed to this there was a demurrer, which was overruled. The company refused to plead or proceed further, and there was judgment against it for the amount of the award as given by the sheriff's jury. The contentions for error are based upon the rulings upon demurrer so made.

1. The written application to the sheriff, in response to which the proceedings were had, and which was filed with the award and formed part of the record to which the answer was addressed, recites that plaintiff is the owner of part of the northeast quarter, etc., upon and over which the railway of defendant is located and now being operated, etc. In a division of the answer it is asserted that such notice was fatally defective, in that it did not fully and accurately describe the real estate; and to this division the demurrer was sustained. We think the ruling was correct. The statute does not require in terms that the real estate taken shall be specifically described. It may be that in cases where it is proposed to take, and the application is the initial step by the would-be taker, an accurate description would be essential to orderly proceeding. But here the company was in possession, and the description given was sufficient to take the sheriff and his jury to the ground occupied, where the whole situation lay open to them; and the written award made, and certified with the other papers to the court, contained a correct description of the lands claimed to have been taken and upon which it was based. Moreover, the company was fully advised of the proceeding, and the right of appeal was an adequate remedy as against any irregularity in the proceedings. Phillips v. Watson, 63 Iowa, 28, 18 N. W. 659.

2. The defendant appeared before the sheriff and protested against the jury selected by him, on the ground that the members thereof were other and different from a jury called and qualified in the year 1898 to serve in matters of condemnation of real estate for the right of way of its line of railroad in said county. This is pleaded in the second division of the answer, and it is said the former jury had acted...