Guinn v. Iowa & St. Louis R. Co.

• Decision Date: 21 October 1904
• Citation: 101 N.W. 94,125 Iowa 301
• Parties: ANDREW GUINN v. THE IOWA & ST. LOUIS R. CO., Appellant
• Court: Iowa Supreme Court

101 N.W. 94

125 Iowa 301

ANDREW GUINN v. THE IOWA & ST. LOUIS R. CO., Appellant

Supreme Court of Iowa, Des Moines

October 21, 1904

Appeal from Appanoose District Court.-- HON. M. A. ROBERTS, Judge.

SUCH proceedings were had as that on the 16th day of April, 1902 a sheriff's jury assessed the damages for appropriating a right of way by the Iowa & St. Louis Railroad Company across forty acres of Andrew Guinn's farm at $ 300. An appeal to the district court was taken by the landowner, and upon trial the damages were increased to $ 1,584. The company appeals.-- Reversed.

Reversed.

J. G Trimble and F. S. Payne, for appellant.

C. F Howell, J. M. Wilson and W. R. C. Kendrick, for appellee.

OPINION

LADD, J.

Before trial the Quincy, Omaha & Kansas City Railway Company filed a petition of intervention, alleging that, since the condemnation proceedings were begun and the appeal taken, it had purchased the right of way and property interests of the defendant and was the real party in interest, and prayed that judgment be entered against the land-owner for costs. It then moved for a continuance, and, this being denied, withdrew its petition, to which plaintiff objected. The court overruled the objection, but seems to have held that the withdrawal did not withdraw intervener from the jurisdiction of the court. At plaintiff's instance it was adjudged to be in default for want of an answer, and upon the conclusion of the trial $ 200 was allowed as attorney's fees and taxed as part of the costs, and judgment entered against intervener and defendant for all costs. The intervener had not been substituted as defendant, nor notified in any way to defend in the action. It had the perfect right, as it had voluntarily appeared, to voluntarily dismiss its petition of intervention, and withdrawing it was equivalent to a dismissal. Dalhoff v. Coffman, 37 Iowa 283; Wilson v. Trowbridge, 71 Iowa 345, 32 N.W. 373; Woodward v. Jackson, 85 Iowa 432, 52 N.W. 358. After it had done this, there remained no issue as to it in the case. It was then neither demanding a remedy, nor was anything claimed of it, and its presence in court was evidenced in no way save the court's ipso dixit that it remained within its jurisdiction. This, however, did not make it so, and in withdrawing its petition the intervener ceased to be a party to the record. It follows that the judgment for costs was entered without jurisdiction.

Authorities cited by appellee to the effect that before the taxation of costs by the clerk may be corrected in this court a motion for that purpose must have been ruled on by the district court are not in point, for the complaint here is not of the amount of the costs, but that any judgment whatever was rendered therefor. Ainley v. Ins. Co., 113 Iowa 709, 84 N.W. 504. In such a case, as the ruling has been once entered, there is no occasion for calling on the trial court to review its ruling again before bringing the matter to this court.

II. The defendant's railroad runs through the forty acres from the north in a southeasterly direction. On the forty acres adjoining on the north is a lake. Along its south side was a bank of earth, which prevented water flowing therefrom on plaintiff's farm. The road crossed this lake, and in constructing it a part of the embankment on each side of the track was removed, and this allowed the water to flow from the lake. The evidence showed that at a cost of $ 20 the earth could be replaced in the bank. An engineer was asked whether it was proper, in the construction of the road, to cut the banks and open the ditches. An objection to this was sustained, on the theory that the defendant was not in a position to urge that its road had not been properly constructed. It was ruled otherwise in King v. Ry., 34 Iowa 458. The damages to be assessed are those "which said owner will sustain by the appropriation of his land for the use of said corporation." This does not contemplate injuries to the realty resulting from the negligent construction of the road. Such damages may be recovered in a proper action, but are not elements in fixing the value of the land taken or the compensation to be allowed the owner. Miller v. Ry., 63 Iowa 680. See Doud v. Ry., 76 Iowa 438, 41 N.W. 65.

Appellee urges that in any event the propriety of the ditches was not a matter of expert evidence, and the competency of the engineer was not shown. The last of these objections was not urged in the trial court, and the first we do not regard as well taken. The ditches were excavated for drainage, and whether this was necessary in the safe construction of the roadbed was an appropriate inquiry of persons skilled in such matters.

True the evidence leaves little, if any, doubt but that a proper construction of the road did not require the excavation of the ditches, and that the embankment could be restored at small expense. Conceding this, however, the error in the ruling is emphasized, rather than cured as contended, in the instructions, for in the eleventh paragraph the jury was told, in substance, that if the company intended to restore the embankment, and could do so at a cost of $ 20, and if this would obviate damages from the overflow from the lake, no damages occasioned by cutting the bank of the lake should be...