Incorporated Town of Ackley v. Central States Electric Co.
| Decision Date | 26 June 1928 |
| Docket Number | 39183 |
| Citation | 220 N.W. 315,206 Iowa 533 |
| Parties | INCORPORATED TOWN OF ACKLEY, Appellee, v. CENTRAL STATES ELECTRIC COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED SEPTEMBER 28, 1928.
Appeal from Hardin District Court.--SHERWOOD A. CLOCK, Judge.
Action for injunction to restrain defendants from crossing the streets of the plaintiff town with a wire, or wires transmitting electric power. Decree for plaintiff. Defendants appeal.
Affirmed.
C. H E. Boardman, for appellants.
F. J. McGreevy, for appellee.
The plaintiff is an incorporated town. The defendant Central States Electric Company is a public utility company, engaged in the business of furnishing electrical energy. The defendant Marshall Canning Company is a concern which heretofore operated in the north part of the plaintiff town. The defendant Hadley is engaged in business in the town of Ackley, and his place of business is in an easterly direction from that of the Marshall Canning Company, and several blocks therefrom.
This case has been before this court on appeal from an order or decree granting a temporary injunction against the defendants. See Incorporated Town of Ackley v. Central States Elec. Co., 204 Iowa 1246, 214 N.W. 879.
The utility company has constructed its high-tension line up to the southern limits of the town. The Marshall Canning Company erected a line of poles between its plant and the terminus of the line constructed by the utility company, and by arrangement with the utility company placed thereon a wire, or wires, connecting with those of the utility company, thereby receiving electrical energy for its use in the operation of its plant. Its line of poles is, in the main, constructed on the grounds of the right of way over which the Minneapolis & St. Louis Railway Company operates, but a small portion of it is located outside of the right of way, on real estate owned by a private individual. The Minneapolis & St. Louis Railroad and the Illinois Central Railroad cross in the northerly part of said town. Hadley's place of business is in close proximity to the Illinois Central Railroad. He has erected a line of poles over the right of way of the Illinois Central Railroad from his place of business in a westerly direction, and, by arrangement with the other two defendants, has placed a wire or wires thereon, connecting with the wires of the Marshall Canning Company. By this method, he is furnished at his place of business with electrical energy coming from the utility company. None of the defendants have a franchise, as required by Section 5904 et seq. of the Code of 1924, authorizing the construction of a line within the plaintiff town.
Prior to the time when the defendant Hadley connected the line constructed by him with the line constructed by the Marshall Canning Company, the plaintiff commenced an action against the Canning Company, asking an injunction against it, which action resulted in a decretal order against the Canning Company, enjoining it from maintaining its wires across the streets, alleys, and public grounds of the plaintiff.
We are informed by argument of counsel that an appeal has been taken in said case, but the same has not been submitted to this court. Section 5945 of the Code provides:
"They [cities and towns] shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances."
On the former appeal, we held that an attempt to place, or the placing of, wires across a street, although at a height of 30 to 35 feet, would be an invasion of the right of the town, and wholly without right or authority of law; and that the wires so placed across a street in the town would constitute a nuisance, which, on the petition of the town, should be enjoined. The contention of the defendants on this appeal is that the wires do not cross any of the streets of the plaintiff; that the line erected by Hadley is upon real estate belonging to the Illinois Central Railroad Company.
The original plat of Ackley comprises the east half and 1,055 feet in width off the east side of the southwest quarter and the east side of the southeast quarter of the northwest quarter, all in Section 2, Township 89 north, Range 19 west of the Fifth P. M. That portion of the town of Ackley occupied by the Illinois Central Railroad was conveyed to Robert R. Parriott on April 8, 1854, by patent from the United States government. The aforesaid plat was acknowledged by the owners in fee of the real estate included therein. Attached to the plat and constituting a part of the same is the following certificate:
Said plat was, on the same date, filed for record. The plat complied with the requirements of the statutory law then in force. The acknowledgment and recording of such a plat so certified by the county judge was equivalent to a deed in fee simple of the land therein set apart for public use. See Sections 632 to 637, inclusive, of the Code of 1851.
Ackley was duly and legally incorporated in 1869. By the act of incorporation, any highways in the village prior thereto became streets of the incorporated town. As said by this court in Davis v. Town of Bonaparte, 137 Iowa 196, 114 N.W. 896:
"Of course, if it was a highway before the incorporation, the act of incorporation made it one of the streets of the town."
In Lacy v. City of Oskaloosa, 143 Iowa 704, 121 N.W. 542, we made the following pronouncement:
Thus it will be seen that whatever title the grantors of the original plat of Ackley had in the real estate included in that portion designated as streets is now vested in the plaintiff town.
Now what as to the rights of the Illinois Central Railroad Company over the real estate on which the Hadley line, hereinbefore mentioned, is...
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