Hileman v. Chi. G. W. Ry. Co.

• Decision Date: 13 April 1901
• Citation: 113 Iowa 591,85 N.W. 800
• Parties: HILEMAN v. CHICAGO G. W. RY. CO.
• Court: Iowa Supreme Court

113 Iowa 591

85 N.W. 800

HILEMAN

v.CHICAGO G. W. RY. CO.

Supreme Court of Iowa.

April 13, 1901.

Appeal from district court, Blackhawk county; A. S. Blair, Judge.

The appellant is the successor of the Chicago, St. Paul & Kansas City Railway Company. In June, 1886, the city of Waterloo granted the last-named company the right of way over Bluff street, in said city, for the purpose of constructing and operating its line of railway therein. The plaintiff's property abuts said street, and her grantor, William Cornell, was the owner thereof at the time the ordinance was passed granting the defendant's predecessor the right of way therein. On the 17th day of December, 1886, Cornell and his wife executed and delivered to the railway company the following written instrument: “Know all men by these presents: That William Cornell and Phœbe Cornell, his wife, of Blackhawk county, state of Iowa, in consideration of the sum of $225 in hand paid by the Chicago, St. Paul & Kansas City Railway Company, a corporation of the state of Iowa, do hereby grant, bargain, sell, and convey unto the said Chicago, St. Paul & Kansas City Railway Company the right, privilege, and permission to construct and forever maintain and operate its railway in Bluff street, in the city of Waterloo, and state of Iowa, in front of the following described property [describing the property set out in plaintiff's petition], hereby releasing said company from all damages to the above abutting property by reason of the building or operating of said railway. Signed this 17th day of December, A. D. 1886. William Cornell. Phœbe Cornell.” This was duly acknowledged and properly recorded, and soon thereafter the company extended its track in said street in front of the property in question. A single track was laid and operated until 1898, when the defendant company projected a side track into said street, which passed in front of the plaintiff's property between it and the main track. This is an action to recover damages for the laying of this side track. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.O. C. Miller, for appellant.

H. H. Bezold, for appellee.

SHERWIN, J.

The main question before us for determination is the effect to be given the written instrument set out in the statement of the case. The plaintiff, in effect, contends that it is nothing more than a receipt for damages paid for the location of a single track in front of the plaintiff's property. It must be conceded at the threshold of this inquiry that the plaintiff's grantor, Cornell, originally had an easement in the street in question, which was a property right, and that he could sell and convey or release such right, and deal with it in all respects as he could with any other property right or interest. While he had no title to or right in the soil of the street, his conveyance or release of his easement therein was valid and binding under all authorities. And it must also be conceded that Cornell conveyed to the Chicago, St. Paul & Kansas City Railway Company the right to the use of Bluff street for the purpose of constructing, operating, and maintaining its railway therein, so far as such use might or could interfere with his easement therein. And it will be noted also that he released the company “from all damage” to his property abutting thereon. Suppose Cornell had made a similar conveyance to the company of a right of way four rods wide through his farm; what would be the rights of the company? It is well settled that the conveyance of land for railroad purposes will ordinarily vest in the grantee the same rights as though the land had been acquired by condemnation (Lewis, Em. Dom. [2d Ed.] § 293; Roushlange v. Railway Co., 115 Ind. 106, 17 N. E. 198); and “the conveyance will be held to be a release of all...