Harrington v. Iowa Central Railway Co.

• Decision Date: 13 January 1905
• Citation: 102 N.W. 139,126 Iowa 388
• Parties: F. B. HARRINGTON v. IOWA CENTRAL RAILWAY CO., Appellant
• Court: Iowa Supreme Court

102 N.W. 139

126 Iowa 388

F. B. HARRINGTON v. IOWA CENTRAL RAILWAY CO., Appellant

Supreme Court of Iowa, Des Moines

January 13, 1905

Appeal from Mahaska District Court.-- HON. BYRON W. PRESTON, Judge.

ACTION to recover damages to property by reason of the obstruction of a street by the defendant. Verdict and judgment for plaintiff. Defendant appeals.-- Reversed.

Reversed.

George W. Seevers and J. O. Malcolm, for appellant.

Davis & Orris and McCoy & McCoy, for appellee.

OPINION

MCCLAIN, J.

Plaintiff's premises, used for manufacturing purposes front on Second avenue, in the city of Oskaloosa, and are about one hundred and fifty feet distant from Kossuth street which runs north and south and crosses Second avenue at a right angle. In 1870 the city granted to the Central Railway Company of Iowa the right to lay its tracks over and along Kossuth street and across any streets or alleys intersecting that street, and this right was exercised and enjoyed by that railroad company and the defendant, its successor in interest, by constructing and maintaining a track along Kossuth street as far south as the intersection of Second avenue, until 1897, when by ordinance Kossuth street, and the portion of Second avenue intersecting it, and portions of other streets were vacated to the defendant, with the provision that when defendant should cease using the streets vacated for railroad purposes all right and title thereto should again become vested in the city, as before the passage of the ordinance. Thereupon defendant erected an embankment at the intersection of Kossuth street and Second avenue, which, as plaintiff claims, has diminished the value of her premises by cutting off access thereto from the direction of Kossuth street along Second avenue. No doubt, if Kossuth street and the portion of Second avenue intersecting it had not been vacated, plaintiff, showing special damage by reason of the obstruction of a street affording access to her property used for business purposes, would have the right to recover as damages the depreciation in the value of her property due to the obstruction of the street, if such obstruction was shown. Park v. C. & S.W. R. Co., 43 Iowa 636; Dairy v. Iowa Central R. Co., 113 Iowa 716, 84 N.W. 688.

But the city had the right to vacate the portions of the streets referred to (see Code, section 751), and on such vacation the title to the portions of land formerly occupied by the streets did not revest in the abutting owners, but remained in the city, and such portions could be disposed of for other purposes. Marshalltown v. Forney, 61 Iowa 578, 16 N.W. 740; Williams v. Carey, 73 Iowa 194, 34 N.W. 813; Burlington Gas Light Co. v. Burlington C. R. & N. R. Co., 91 Iowa 470, 59 N.W. 292; McLachlan v. Town of Gray, 105 Iowa 259, 74 N.W. 773; Lake City v. Fulkerson, 122 Iowa 569, 98 N.W. 376; Barr v. Oskaloosa, 45 Iowa 275; Code, section 883.

We need not discuss the validity of the ordinance vacating the portions of the streets, for no question of that kind is raised. Plaintiff could, no doubt, have had the action of the city in vacating Kossuth street, and thereby...