McSweyn v. Inter-Urban Ry. Co.

• Decision Date: 22 September 1964
• Docket Number: INTER-URBAN,No. 51378,51378
• Citation: 256 Iowa 1140,130 N.W.2d 445
• Parties: Leora I. McSWEYN, Appellant, v.RAILWAY COMPANY, Des Moines and Contral Iowa Railway Company, Eugene R. Severs, MacMillan Oil Company, Appellees.
• Court: Iowa Supreme Court

Page 445

130 N.W.2d 445

256 Iowa 1140

Leora I. McSWEYN, Appellant, v. INTER-URBAN RAILWAY COMPANY, Des Moines and Contral Iowa Railway Company, Eugene R. Severs, MacMillan Oil Company, Appellees.

No. 51378.

Supreme Court of Iowa.

Sept. 22, 1964.

Hiram S. Hunn, Des Moines, for appellant.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellees Inter-Urban Ry. Co. and Des Moines and Central Iowa Ry. Co.

Keith E. McWilliams, Des Moines, for Des Moines, for appellees Inter-Urban Ry. Oil Co.

GARFIFLD, Chief Justice.

This is an action in equity for declaratory relief, injunction and money damages in which plaintiff Leora I. McSweyn claims defendants, Des Moines and Central Iowa Railway Co. and Eugene R. Severs, d/b/a MacMillan Oil Co., have no right to use a narrow strip of ground adjoining the railroad right of way for storage of oil tank cars from which deliveries are made to Severs' customers. Principal bases for the action are 1) a claimed restrictive covenant as to use in a deed from a remote grantor of plaintiff of ground adjacent to hers, and 2) alleged violation of the Polk County Zoning Ordinance. Following trial to the court, relief was denied and plaintiff appeals.

The property in controversy is near the north city limits of Des Moines, just east of Second Avenue, a main highway into the city from the north. The railroad track runs east-west at this point and crosses over Second Avenue on a bridge or viaduct. The railway is a short line, operating mainly in and near the city, picking up freight to be delivered to other railroads and receiving freight from them for delivery in the Des Moines area. Before 1950 power for movements of cars and trains came from overhead electric trolley wires. Since 1950-51 the electric power has come from diesel motors in the locomotives.

In 1901 C. L. Moss, then owner, deeded to the railway's predecessor in interest the north 25 feet of the NW 1/4 of the SW 1/4 of the NW 1/4 of Section 23, Township 79, Range 24 in Polk County, containing about 38 acre, except a strip three feet wide out of said land on the south side of said right of way 'where 5 maple trees are now standing. * * * 2nd party agrees to fence with woven wire and to use said land for electric railway only.' Plaintiff contends the language we have italicized is a covenant restricting use of the land which binds defendants and inures to her benefit. The deed was filed for record in Polk county two days after the date it bears.

In 1902 one Bacon, then owner, deeded to the railway's predecessor the south 25 feet of the west 30 acres of the NW 1/4 of the NW 1/4 of section 23. This strip adjoins on the north that deeded by Moss in 1901.

About 1901 the present railway's predecessor in interest built its single track on this 50-foot strip just north of the south half conveyed by Moss.

In 1915 the NW 1/4 of the SW 1/4 of the NW 1/4 of section 23 and land in section 22 were platted as Interurban Acres, adjoining the railway on the south. Plaintiff became the owner of lot 4 in this subdivision in 1917 and has lived there since then. Moss was her remote grantor. Only access to her property is from Hancock Street which comes from the east along the south side of the railroad right of way and ends at the entrance to her garage.

In 1943 Second Avenue was widened to the north from the north city limits. To make adequate room for motor vehicle traffic beneath the railroad track, it was raised about eight feet and moved about ten feet to the north.

In chronological order, Severs acquired land in 1954 on the west side of Second Avenue just south of the railroad as a location for an extensive business, both wholesale and retail, in petroleum products. He there has large storage tanks for highly flammable propane gas, a business office, large storage tanks for gasoline and a filling station with the usual pumps to service motor vehicles.

In 1961 Severs acquired a small tract on the east side of Second Avenue just south of the railroad right of way. He surfaced this with crushed rock and uses it for storage of oil tank trucks and transports and other motor vehicles and for a roadway between Second Avenue and a spur track the railway built for Severs in 1962, under a lease to him and mostly at his expense, just south of the present main track. This spur is very close to the location of the main track before it was moved to the north in 1943. The spur takes off from the main track about 1000 feet east of the center line of Second Avenue. Its west end is nearly even with the east side of the railroad bridge over the avenue and the center (east and west) of the small tract, above referred to, purchased by Severs on the east side of Second.

This spur was built for storage of tank cars filled with 8,000 to 12,000 gallons of No. 5 or 6 fuel oil or, as Severs calls it, industrial fuel. It is long enough for 20 tank cars. Along the south side of this spur and the north end of the small tract purchased by Severs he installed a drive about 25 feet wide surfaced with crushed rock over which his tank trucks or transports are driven alongside the tank cars. The cars are emptied into the tank trucks by a movable gasoline pump and hose. The trucks are driven to and from the rock drive both over Severs' small tract just east of Second Avenue and south of the drive and the roadway at the west end of Hancock Street at the northeast corner of plaintiff's property.

The tank cars remain on the spur track until emptied into trucks for delivery to Severs' customers. Some cars remain as long as 90 days. During the trial four full cars had been there a month. Severs has them leased from the time they are filled at the refinery until returned empty to the railway. It takes from one to 12 hours to empty a car into trucks, depending on temperature and the specifications of the oil.

Plaintiff complains mainly of dust from trucks and autos driven over the rock drive, fumes from the oil and vibrations from the unloading pump and the trucks.

Other facts, especially those bearing on claimed violation of the zoning ordinance, will be mentioned later.

1. The trial court held: 1) use of the spur and drive was a reasonable one for railway purposes, 2) the language of the 1901 deed from Moss to the railway's predecessor did not restrict the use of the land conveyed but merely declared the purpose of the grant, 3) the provision was personal to the parties thereto, 4) if the 1901 deed imposed any restriction on use of the tract it has been terminated by changed conditions, 5) defendants have not violated the county zoning ordinance, and 6) plaintiff is estopped to maintain the action.

We consider first the nature and effect of the provision in the deed. It is of some significance it was a warranty deed of the land, not merely of an easement or right of way. It is true the exception of the three-foot strip where the maple trees were standing and a reservation of any improvements then on the land conveyed referred to 'said wright of way.' The particular provision on which plaintiff relies is the grantee's agreement 'to use said land for electric railway only.' It is not an agreement to use the land for right of way only.

Plaintiff concedes the Moss deed conveyed a fee title to the land, not a mere easement over it. We therefore treat the deed as a conveyance of a fee and do not further discuss a proposition involved in many decisions of this kind which are not always easy to reconcile. See Des Moines City R. Co. v. City of Des Moines, 183 Iowa 1261, 1267-1271, 159 N.W. 450, L.R.A. 1918D, 839; Anno. 132 A.L.R. 142. In the cited precedent the land was conveyed by quitclaim deeds which stated it was to be used for the construction and operation of a street railway.

As previously indicated, plaintiff contends the language of the deed quoted above is a covenant restricting use of the land conveyed which binds both the railway and Severs and inures to her benefit. It is obvious the provision restricts use of the 25-foot strip to electric railway purposes. That such a limitation on use of the strip is valid, at least as between the parties to the deed, seems clear. Similar limitations have frequently been upheld. By accepting the deed the grantee became bound to perform the covenant in it. Thodos v. Shirk, 248 Iowa 172, 179, 79 N.W.2d 733, 737; Sexauer v. Wilson, 136 Iowa 357, 364, 113 N.W. 941, 14 L.R.A.,N.S., 185 We are cited to no authority for the view such a provision is contrary to public policy.

'A grantor may validly specify or limit the use of property, or prohibit its use for a specified purpose.' 26 C.J.S. Deeds § 144. See also Id., § 162(1); 14 Am.Jur., Covenants, Conditions and Restrictions, sections 196, 206; Anno. 21 A.L.R. 1281, 1289.

The present railway is the successor in interest of the grantee of the deed as a result of reorganizations of the grantee. Defendant railway took only such interest as the grantee acquired from Moss. Although the deed to Severs--from the railway--of the tract on the east side of Second Avenue and the 'Sidetrack Agreement' between them for construction and use of the spur contain no mention of the restriction in the Moss deed, it was duly filed for record in Polk County and thus imparted constructive notice of the restriction to both defendants. Grange v. Korff, 248 Iowa 118, 128, 79 N.E.2d 743, 749, and citations; Note 49 Iowa Law Review 1246, 1251.

The question whether plaintiff may enforce the restriction, assuming for the present it has been violated, is more doubtful. It depends primarily on whether it was intended to benefit Moss' remaining land, not merely himself personally. We conclude the restriction was intended to benefit his remaining land. In all probability this was the intention of inserting in the deed the provision that the grantee would fence the strip with woven wire and the restriction as to use seems no less beneficial to Moss' remaining land.

'If it sufficiently...