Heath v. Des Moines & St. Louis R'Y Co.

• Decision Date: 18 April 1883
• Citation: 15 N.W. 573,61 Iowa 11
• Parties: HEATH v. THE DES MOINES & ST. LOUIS R'Y CO. ET AL
• Court: Iowa Supreme Court

15 N.W. 573

61 Iowa 11

HEATH v. THE DES MOINES & ST. LOUIS R'Y CO. ET AL

Supreme Court of Iowa, Dubuque

April 18, 1883

Appeal from Polk District Court.

THE plaintiff, Heath, is the owner of lots 4 and 5, block 20 situated between Fourth and Fifth streets in the city of Des Moines, west side. Between these lots there is an alley sixteen feet wide, running east and west. On lot 4, north of the alley, is plaintiff's elevator; on lot 5, south of the alley, is his oat-meal mill, having a capacity to manufacture 30,000 bushels of oat-meal per annum, and in which there is a large amount of expensive machinery. August 4th, 1879, the city council granted to the said plaintiff the right to lay, maintain and operate a side track or switch from some point on the C., R. I. & P. R. R., between Fourth and Fifth streets, along, over and across parts of lots 6 and 7, block 25, and the alleys running through the same, and between lots 4 and 5 in block 20, to plaintiff's said buildings. The grant so made was accepted by the plaintiff on the next day, and a portion of said side tract has been laid but what portion, or how much, the record does not disclose. On the 21st day of March, 1881, the city council passed an ordinance, the portion of which material to this controversy is as follows: "That the right of way be and is hereby granted to the Des Moines and St. Louis Railroad Company, or its assigns, through the city of Des Moines, on, over, along upon and across the following streets and alleys to-wit." The ordinance proceeds to authorize the defendant to construct its road on, over and along certain alleys, crossing certain streets named, and thence along the south alley, between Court Avenue and Vine street, crossing certain streets, including West Fourth and West Fifth streets, across all north and south alleys, and thence, westerly on the alley between Cherry street and Vine street.

Acting under the authority conferred by this ordinance, the defendant, the D. M. & St. L. R. R. Co., was about to locate its track on the alley between plaintiff's buildings, and to have a sheriff's jury to proceed to assess the damages which should be paid the plaintiff therefor. Thereupon the plaintiff commenced this action for an injunction, praying that defendants and each of them, and their employes and attorneys. may be enjoined from entering upon said alley, or proceeding to assess the damages, and from in any way asserting or exercising any right to lay a track thereon. The defendant answered, the plaintiff replied, affidavits were filed, and, on the 22d day of November, 1881, an injunction was ordered as prayed, and was served upon the defendants on the 23d day of November. On the 22d day of November, the defendants gave notice of an appeal, and, on the 23d day of November, they filed an appeal bond, which was duly approved. On the 28th day of November, 1881, the defendants moved the court for an order directing the clerk to recall the writ of injunction, and that plaintiffs proceed no further under said writ, which motion the court overruled. From this ruling of the court the defendants appealed, November 30th, 1881.

REVERSED.

Parsons & Runnells, for appellants.

Wright, Cummins & Wright, for appellee.

OPINION

DAY, CH. J.

I. The plaintiff insists that the ordinance in question does not confer upon the defendant railroad company any authority to construct its line of road upon the alley between the plaintiff's lots, and claims that the only authority conferred is to construct its road by the side of the alley, at the point in question. The ordinance authorizes the defendant to construct its road along the alley in question. In other portions of the ordinance, the defendant is authorized to construct its road on, over and along certain alleys. It is claimed that this change of language is significant, and must have been employed with a purpose. We think, however, that the words on, over and along were all employed synonymously in this ordinance. The words on and over, as here employed, are clearly synonymous. The word along does not necessarily mean by the side of. We say "the troops marched along the highway," by which we mean that they marched on or over, not by the side of, the highway. We cannot think that the city council, by the change of phraseology, intended to authorize the defendant to construct its road by the side of the alley, on private property, over which the city had no control. We rather think that the words were employed as synonyms, and that the dropping of two of them in the part of the ordinance in question possesses no significance whatever.

II. It is claimed by the appellee that, if the ordinance gives the power to occupy this alley, the council exceeded its authority in passing the ordinance. In support of this position counsel refer to the following provisions of the Code:

"SEC. 464. The council shall also have power to authorize or forbid the location or laying down of tracks for railways and street railways on all streets, alleys and public places."

"SEC. 527. The city council shall have the care, preservation and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair, and free from all nuisances."

"SEC. 1262. Any such corporation may raise or lower any turnpike, plank road, or other highway, for the purpose of having its railway cross over or under the same, and, in such case, said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration at such place of crossing."

It is insisted that section 527 of the Code requires the council to keep all alleys open and in repair, and that no authority can be conferred, under section 464, to lay a railway track in...