Henry v. Mason City & Ft. D. R. Co.

• Decision Date: 19 November 1908
• Parties: HENRY v. MASON CITY & FT. D. R. CO. ET AL.
• Court: Iowa Supreme Court

140 Iowa 201

118 N.W. 310

HENRY

v.MASON CITY & FT. D. R. CO. ET AL.

Supreme Court of Iowa.

Nov. 19, 1908.

Appeal from District Court, Wright County; C. C. Lee, Judge.

Action to recover damages to real property. There was a judgment for the defendant, from which the plaintiff appeals. Reversed.Peterson & Knapp, for appellant.

Birdsall & Birdsall and Healy & Healy, for appellees.

SHERWIN, J.

The plaintiff is the owner of certain lots abutting upon Manson street, in the town of Clarion, Iowa. He brought this action to recover damages to said premises under the provisions of an ordinance of the town of Clarion passed April 7, 1902, granting to the Mason City & Ft. Dodge Railroad Company the right to locate and lay down one or more additional railroad tracks upon Manson street in front of plaintiff's property, one of which additional tracks had already been laid and was being used for a switching track. In 1886 the Mason City & Ft. Dodge Railroad Company built a railroad between Mason City, in Cerro Gordo county, Iowa, and Ft. Dodge, in Webster county, through Clarion, and applied to the town council of Clarion for an ordinance permitting said company to lay its railroad track upon Manson street, in said town, and thereupon the said council passed an ordinance on August 14, 1886, as follows, so far as the same is material here: “Be it ordained * * * that the Mason City & Ft. Dodge R. R. Co. is authorized and permitted to locate and lay down and forever maintain its railroad track upon and along Manson St. in Eastman's Addition of said town of Clarion. The terms and conditions of the above ordinance are that said Mason City & Ft. Dodge Railroad Company shall leave the said street for travel in as good condition as the same now is, and at the intersection of streets shall maintain good and suitable crossings as the same are required, and make adequate compensation to all abutting property owners for the damages sustained.” Pursuant to this ordinance, the railroad company laid a single track on Manson street, and thereafter it paid to J. M. Overbaugh, the plaintiff's grantor, $350 damages on account of the location of said track on Manson street. This was the only track on said street until in 1902, when, at the special instance and request of the said railroad company, the city council of Clarion passed another ordinance granting to the said railroad company the right to lay one or more additional tracks on said street; section 2 of said ordinance providing that the railroad company should make adequate compensation to the abutting property owners for damages sustained by reason of such additional track. The trial court held that the ordinance of 1886 gave the defendant company the right, not only to occupy said street with its main track, but the right to lay thereon such additional tracks as might be necessary for the reasonable and proper conduct of its business, and that the ordinance of 1902, known as “Ordinance No. 51,” was of no force or effect.

While it may be true as a general proposition that the right to lay a track would carry with it implied authority to lay such additional tracks as might be reasonably necessary for the transaction of the business of the road, it is not controlling in this case because of the facts and circumstances disclosed by the record. It is a well-established principle that grants of franchise or license are to be strictly construed in favor of the grantor and against the grantee, and that no right will pass by implication unless it is of such a...