Morgan v. Des Moines Union Ry. Co.

• Decision Date: 13 April 1901
• Citation: 85 N.W. 902,113 Iowa 561
• Parties: MORGAN v. DES MOINES UNION RY. CO. ET AL.
• Court: Iowa Supreme Court

113 Iowa 561

85 N.W. 902

MORGAN

v.DES MOINES UNION RY. CO. ET AL.

Supreme Court of Iowa.

April 13, 1901.

Appeal from district court, Polk county; Thomas F. Stevenson, Judge.

Action in equity to abate a nuisance caused, as alleged, by the construction and maintenance of the tracks of defendant railway, and by the operation of trains thereon, and by permitting cars to so stand upon its said tracks as to obstruct access to plaintiff's property. The trial court granted some slight relief to plaintiff, which is not complained of by defendants; but, in the main, judgment went against plaintiff, and he appeals.Phillips, Ryan & Ryan, for appellant.

Cummins, Hewitt & Wright, for the railway company.

J. E. Mershon and W. Banister, for the city.

WATERMAN, J.

Plaintiff is the owner of a lot in defendant city, upon which stands a large, brick building that is used as a hotel. This building fronts east upon Fourth street, which runs north and south, with a slight descending grade, towards the south, in front of and just north of the building. On the north of plaintiff's property is an east and west alley 25 feet wide; immediately west is a north and south alley; and upon the south the property abuts on another east and west alley, or narrow street, 25 feet wide. The tracks of defendant railway run east and west, passing plaintiff's property on the north. The right of way is mainly upon a strip of land owned by the railway company, and which abuts upon the north side of the alley that bounds plaintiff's property on the north. One of these tracks occupies this alley east of Fourth street, and one is also laid therein west of the north and south alley which runs in the rear of plaintiff's premises. A sketch of the premises with the immediate vicinity on the north is appended, in order to convey a clearer understanding of the general situation:

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There are several grounds of complaint, one of which grows out of the sustaining of defendants' demurrer to a portion of plaintiff's reply. As this matter will be disposed of in what we have to say generally on the case, we shall not further notice the manner in which the point is raised. With the brief statement given as a basis, we think we can make ourselves better understood by taking up the other facts as they arise in connection with the different issues presented.

1. Plaintiff claims that defendant has no right to maintain its tracks across Fourth street, and to sustain this contention insists that defendant is incorporated under chapter 139, Acts 20th Gen. Assem., and that its rights under such act are restricted. One limitation upon which an argument is founded, as contained in section 2, is as follows: “Every corporation formed under the provisions of the preceding section shall have power to take and hold for the purpose therein mentioned such real estate as may be found necessary by the railroad commissioners for the location of its depot and approaches which it may acquire by purchase or condemnation,” etc. As defendant's tracks are laid mainly upon lands which it purchased and holds for right of way purposes, and as it concededly never invoked any finding by the railroad commissioners, it is insisted that such tracks are unlawful structures. The answer made by the railway company is that it is incorporated under the general law, and no finding by the railroad commissioners was necessary to warrant it in procuring a right of way and laying track thereon. It may be well to look first at the object of chapter 139, Acts 20th Gen. Assem. We shall not set out the act in full, but content ourselves with saying that it is manifest from the terms of this statute that its purpose was to endow with the power of eminent domain a corporation which would otherwise possess no such power. The corporation provided for in this act is not a railway company. It is not intended that it shall operate locomotives or cars. Its purpose is to construct buildings and tracks for use by railway companies. There is no reason for assuming that a railway company could not also, irrespective of this act, construct a union depot, or that in so doing it would lose any of the powers it possessed under the general incorporation act. See Beach v. Wakefield, 107 Iowa, 567-582, 76 N. W. 688, 78 N. W. 197. That defendant was incorporated under the general law is made apparent by the terms of its articles, of which the following is a part: “Art. 11. The general nature of the business to be transacted shall be the construction, ownership and operation of a railway in, around and about the city of Des Moines, Iowa, including the construction, ownership and use of the depots, freight houses, railway shops, repair shops, stock yards, and whatever else may be useful and convenient for the operation of railways at the terminal point of Des Moines, Iowa, as well as the transfer of cars from the line or depot of one railway to another, or from the various manufactories, warehouses, storehouses, or elevators to each other, or to any of the railways or depots thereof now constructed or to be hereafter constructed in or around the city of Des Moines, and such corporation shall possess all the powers conferred upon corporations for pecuniary profit by chapter 1 of title IX of the Code and the amendments thereto.” These articles were afterwards amended, but in no way was the language set out qualified in the amendment. Defendant, then, is a railway corporation, and at the time of its organization and of the doing of the acts complained of the following statutory provisions were in force: Section 464, Code 1873, gave to cities these enumerated powers: “They shall have power to lay off, open, widen, straighten, narrow, vacate, extend, establish and light streets, public grounds, wharves, landings, and market places, and to provide for the condemnation of such real estate as may be necessary for such purposes. They shall also have the power to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys and public places; but no railway tracks can thus be located and laid down until after the injury to property abutting upon the street, alley or public place upon which said railway track is proposed to be located and laid down has been ascertained and compensated in the manner provided for taking private property for works of internal improvement in chapter 4 of title X of the Code of 1873.” Under the provisions of this act the council of defendant city passed an ordinance granting a right of way to the assignor of defendant railway, as will appear hereafter. This right of way was along and upon certain streets and alleys, of which the alley that runs north of plaintiff's property was one. Instead of laying track at once in this alley, an additional right of way abutting it on the north was purchased, and track was first laid there. It is thought by appellant the granted right of way was exclusive, and that defendant could acquire no other, nor cross the streets of the...