LaNce v. Chi., Milwaukee & St. Paul R. Co.

• Decision Date: 21 March 1882
• Court: Iowa Supreme Court
• Parties: LANCE v. CHICAGO, MILWAUKEE & ST. PAUL R. CO.

57 Iowa 636

11 N.W. 612

LANCE

v.CHICAGO, MILWAUKEE & ST. PAUL R. CO.

Supreme Court of Iowa.

Filed March 21, 1882.

Appeal from Osceola circuit court.

This is a proceeding to condemn a right of way for the defendant's railroad across certain improved land owned by the plaintiff. It appears from the assessment of the commissioners appointed by the sheriff that one Ozias was the owner of a mortgage upon the farm, and the damage occasioned by the taking of the right of way was assessed to the plaintiff and Ozias jointly. From this assessment the plaintiff appealed to the circuit court, by serving a notice of appeal upon the railroad company within the proper time. Afterwards the defendant filed notice to dismiss the appeal because Ozias did not join therein. Thereupon the plaintiff served notice on Ozias to the effect that he had appealed from the assessment made by the commissioners appointed by the sheriff, and stating that the appeal would be for trial at the next term of the circuit court. The motion to dismiss the appeal was thereupon overruled. There was a trial by jury, which resulted in an award of damages greater in amount than that allowed by the commissioners appointed by the sheriff. From this award the railroad company appealed.George E. Clark and M. B. Carey, for appellant.

I. I. Bell and Argo & Kelley, for appellee.

ROTHROCK, J.

1. The first point presented in the record involved the question whether the motion to dismiss the appeal because Ozias, the mortgagee, did not join therein, should have been sustained. Whether it is necessary to make a mortgagee a party to proceedings to condemn land for a right of way, we need not determine. In this case it appears that the assessment was made to the owner of the land and to the mortgagee jointly. We will presume it was done on proper notice to both these parties. We have, then, the question whether the owner in such case must be denied the right to maintain and appeal because the mortgagee neglected or refused to join therein.

In C., R. I. & P. R. Co. v. Hunt, 30 Iowa, 73, it was held that, where damages are assessed jointly to two persons as owners of the land, an appeal cannot be taken and prosecuted by one of them without uniting the other therein, or making him a party thereto by notice or otherwise. The reasoning in that case has no application to the case at bar, simply because the rights of a joint owner and those of a mortgagee are wholly different. Where an award has been made in favor of the owner and mortgagee jointly, the mortgagee may be entirely content with the award, or his security may be such that it is a matter of indifference to him whether any award whatever is made. The land may be ample security for his debt, with the encumbrance of the right of way upon it. In such case it would be a great hardship to deny the owner of the land the right to prosecute an appeal because the mortgagee declines to incur the expense of joining therein; and, further, the defendant cannot be prejudiced by the failure of the mortgagee to join in appeal. His rights with reference to the right of way were adjudicated by the commissioners appointed by the sheriff, and he is thereby estopped by such adjudication from enforcing his mortgage against the right of way.

2. At...