Mattice v. Chicago Great Western R. Co.
| Decision Date | 08 June 1906 |
| Citation | 107 N.W. 949,130 Iowa 749 |
| Parties | ELMER F. MATTICE v. THE CHICAGO GREAT WESTERN RAILWAY COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Delaware District Court.--HON. FRANKLIN C. PLATT, Judge.
ACTION of mandamus to compel the defendant to make an adequate crossing over its road. Judgment for plaintiff, from which the defendant appeals.
Affirmed.
T. P McNamara and Yoran, Arnold & Yoran, for appellant.
Bronson Carr & Sons, for appellee.
The plaintiff is the owner of land on both sides of the defendant's railway; his land on one side thereof having been purchased after he acquired the land on the other side, and after the construction of the road. There is no crossing on his land and to reach that on the north side of the track he is compelled to go west eighty rods to a north and south public highway, then across the track and east eighty rods. This action was brought to compel a crossing under the provisions of section 2022 of the Code which is as follows: "When any person owns land on both sides of any railway the corporation owning the same shall when requested so to do make and keep in good repair one cattle guard and one causeway or other adequate means of crossing the same at such reasonable place as may be designated by the owner." The appellant contends, first, that as plaintiff has access to both tracts of land through the medium of the public highway he is not entitled to the crossing demanded; and, second, that it acquired title to its right of way one hundred feet in width, and in addition thereto a strip of land fifty feet in width on the north side thereof at the point where the plaintiff demands a crossing, by warranty deed from a common grantor prior to the plaintiff's purchase, and that the court cannot constitutionally compel it to furnish a crossing over the aforesaid strip of land without compensation therefor. We fully agree with the conclusion of the trial court that the demand for a crossing at the point in question is not an unreasonable one. There is no crossing between his two tracts of land and to reach that north of the right of way he is now obliged to go to the public highway and to travel one hundred and sixty rods. The statute evidently contemplates more convenient access than is usually afforded by a public highway, even though one side of the land may abut thereon, and such is undoubtedly the holding of our cases. Boggs v. C., B. & Q. Ry. Co., 54 Iowa 435, 6 N.W. 744; Herrstrom v. Newton & N.W. R. Co., 129 Iowa 507, 105 N.W. 436; Schrimper v. C., M. & St. P. R. Co., 115 Iowa 35; State v. B., C. R. & N. Ry. Co.., 99 Iowa 565; Van Vrankin v. Railway Co., 68 Iowa 576.
The real contention in this case is over the plaintiff's right to have a crossing at the point designated by him because of the fact that it will cross the strip north of the one hundred feet right of way. If this strip of land is not a part of the appellant's railway it is evident that the plaintiff is not the owner of land on both sides thereof where such strip intervenes between the railway and his land, and hence is not entitled to a crossing under the statute in question. On the other hand, if the strip is a part of the railway, although the railway may be more than one hundred feet in width, the statute applies whether the additional land is acquired by purchase or by condemnation. The statute (Code, section 1994) provides that a railway corporation may take and hold . . . so much real estate as may be necessary for the location, construction, and convenient use of its railway, etc. It then limits the amount that may be so taken "otherwise than by consent of the owners, to a strip 100 feet in width, except for wood and water stations, unless where greater width is necessary for excavation, embankment, or depositing waste earth." It is not true, therefore, that the statute contemplates...
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