Mason City & Ft. D. R. Co. v. Bd. of Sup'rs of Wright Cnty.
Decision Date | 14 May 1909 |
Parties | MASON CITY & FT. D. R. CO. ET AL. v. BOARD OF SUP'RS OF WRIGHT COUNTY ET AL. |
Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Wright County; J. H. Richard, Judge.
On rehearing. Reversed.
For former opinion, see 116 N. W. 805.
Appeal by defendants from assessment of damages awarded to plaintiff resulting from extending a ditch across their right of way.Peterson & Knapp, for appellants.
Healy & Healy and Birdsall & Birdsall, for appellees.
A drainage district was established including lands in Wright and Humboldt counties. To drain these a ditch was located along the route of a natural water course across which the Mason City & Ft. Dodge Railway Company had constructed its railroad, operated at the time of the trial by the Chicago Great Western Railroad Company. The railroad grade at the crossing was seven feet above the natural surface, and, concerning an opening for the passage of water, one of plaintiffs' witnesses testified on cross-examination that “at or near” this place there was a wooden box four by five feet through the embankment for the purpose of letting the water through, and plaintiffs introduced the return of the drainage engineer to the notice of them in pursuance of section 18, c. 68, p. 66, Acts 30th Gen. Assem. 1904, reciting that their engineer “agreed that the ditch could cross about 250 feet S. W. of where the company now has a wooden box and that the opening under the railroad track should be as large as a drainage ditch planned at that place.” Aside from this, there was no evidence concerning the character, location, or purpose of the opening through the embankment, or how it came to be placed where it was. The profile indicated that the proposed ditch through the right of way would be 4 feet wide at the bottom, with sides sloping out 1 1/2 feet to each foot in depth, 7 feet deep, and therefore 25 feet wide at the top. The appraisers estimated the damages to plaintiff in the excavation of the ditch through its right of way to be $400, and upon appeal to the district court this was increased to $2,200. Evidence was received on the trial tending to show the cost of a concrete and steel culvert through the embankment over the ditch and also that of a wooden bridge, and what sum of money at the rate of 5 per cent. interest per annum would be necessary “for the original construction and subsequent maintenance of the frame structure which cost originally $500, and that had to be renewed every eight years.”
The trial court in its rulings on the admissibility of the evidence and instructions to the jury excluded from consideration the fact that the opening in the railroad embankment was for the excavation of a ditch in the bed of a natural water course, and held that the entire cost of construction, together with that of maintenance in the future as compared with the cost of maintaining the embankment, should be allowed as damages. Whether the wooden culvert 250 feet away was so located as to serve as one placed as required by section 2021 of the Code does not appear. That section makes it the duty of the railway company to “maintain and keep in good repair all bridges with their abutments which it may construct for the purpose of enabling its railway to pass over * * * any water course.” So that, even were the drainage district chargeable with the expense of construction, that of maintaining could not rightly have been included in the assessment of damages. Nor do we think that expense of building or rebuilding a culvert or bridge over a ditch excavated in the bed of a natural water course passing through a right of way a proper element of damages in such a case. The increased volume of water and the improvement to carry it away are but the results of better drainage of the tillable lands on either side of the track which the company was bound to anticipate. Of course, a railroad company may not be required to widen or deepen a water course through its right of way at its own expense any more than this may be exacted of a landowner, but the public has the undoubted authority to widen and deepen such a course, even though this shall render necessary the rebuilding of the bridge or culvert, and, when this is done, the expense is a proper one for the railway company to bear. The right of drainage through the natural water course is a natural easement appurtenant to the land of every individual through which it runs, and every owner of the land along such water course is obliged to take notice of the easement by others along the same. In constructing its embankment or culverts or bridges through it, the company does so subject to the right of the state by appropriate agencies to provide for such use of the natural water course as subsequently may become necessary and proper for public interests. Chicago, B. & Q. R. Co. v. People, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 59, s. c. 212 Ill. 103, 72 N. E. 219. The Illinois Supreme Court, after a review of the decisions, declared that “the great weight of authority is that where there is a natural way, or where a highway already exists and is crossed by the railroad company under its general license of building a railroad, and without any specific grant by the legislative authority to obstruct the highway or waterway, the railroad company is bound to make and keep its crossing and at its own expense in such condition as shall meet all the reasonable requirements of the public as changed conditions and increased use may demand.” This was fully approved on appeal by the Supreme Court of the United States. See Chicago Northwestern Railway Co. v. Drainage District No. 5 ( ) 121 N. W. 193. In this state establishment of the drainage district is authorized “whenever the same will be of public utility or conducive to the public health, convenience or welfare and the drainage or surface water from agricultural lands shall be considered a public benefit and conducive to public health, convenience, utility and welfare.” Drainage within the contemplation of the above statute is for public use, convenience, and welfare (Sisson v. Board of Supervisors of Buena Vista County, 128 Iowa, 442, 104 N. W. 454, 70 L. R. A. 440), and, this being so, the making of the improvement is within the police power of the state, and injury such as here claimed, being merely incidental thereto, cannot be regarded as the taking of property within the contemplation of the Constitution. C., B. & Q. R. Co. v. People, supra.
As we understand the briefs, there is no controversy over these propositions; the companies resting their claims on certain statutes in force at the time when these proceedings were had. Section 18, c. 68, Acts 30th Gen. Assem., made it the duty of the engineer in charge of the work “to notify the railroad company by serving a written notice upon a station agent of such company or its lessee or receiver that he will meet the company at the place where the said proposed ditch, drain or water course crosses the right of way of said company, said notice fixing the time of such meeting which shall not be less than five days after the service of the same, for the purpose of conferring with such railroad company in relation to the place where, and the manner and method in which such improvement shall cross such right of way.” Upon failure to agree, these matters are to be determined by the railroad commissioners. As seen, they did agree, and section 19 of the above chapter provided that In construing this statute, the obligation of the railroad company but for its conditions to construct a culvert or bridge over this ditch at its own expense is not to be ignored. Its location and character had been agreed upon, and it is to be assumed to be such as the successful drainage of the district required. But for the clause in the statute “that the cost of constructing the improvement across the right of way shall be considered as an element of damages” there would be no basis for the claim of the companies for compensation. To what, then, do the words “the improvement” refer? Manifestly “the ditch.” It is mentioned as the improvement throughout the drainage statutes, and in section 18, c. 68, the meeting of the drainage engineer and that of the company is “for the purpose of conferring with such railroad company in relation to the place where and the manner and method in which the improvement shall cross such right of way.” If they fail to agree, then the...
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