Morrison v. Thistle Coal Co.

• Decision Date: 08 April 1903
• Citation: 94 N.W. 507,119 Iowa 705
• Parties: FLORENCE MORRISON, Appellant, v. THISTLE COAL COMPANY, DAVID DINNING AND DAVID STEELE
• Court: Iowa Supreme Court

94 N.W. 507

119 Iowa 705

FLORENCE MORRISON, Appellant, v. THISTLE COAL COMPANY, DAVID DINNING AND DAVID STEELE

Supreme Court of Iowa, Des Moines

April 8, 1903

Appeal from Appanoose District Court.--HON. ROBERT SLOAN, Judge.

THIS action was brought to enjoin defendants from constructing a railway track across plaintiff's land in pursuance of certain proceedings to condemn a right of way for such track from defendants' coal mine to a connection with a railroad which runs through plaintiff's land. A preliminary injunction was asked, but denied, and on final hearing plaintiff's petition was dismissed on the merits. Plaintiff appeals.

Affirmed.

W. H Sanders and Vermilion & Valentine for appellant.

C. F Howell for appellees.

OPINION

MCCLAIN, J.

The defendants Dinning and Steele are partners doing business under the name of the Thistle Coal Company, and engaged in mining coal from certain tracts of land on which they have a mining lease, with the privilege of exclusive occupancy of a four-acre tract, which does not abut upon any highway. There was some question raised on the trial as to whether there was a private way from the highway to this four-acre tract, but we think the evidence shows that defendants had no such private way. Defendants desired a spur track connecting the four-acre tract, as to which they had surface rights, in conducting their mining operations under their lease, with a railway, the track of which was located through plaintiff's land, which adjoins the land covered by defendants mining lease, and to construct this spur track defendants desired to have a right of way over plaintiff's land so far as to enable them to make connection with the railway. Defendants applied to plaintiff for permission to construct this spur track through her land which was absolutely refused on the ground that they could not lawfully acquire a right of way over her land, and she refused to grant such right of way, although defendants offered her $ 100 by way of compensation. Thereupon defendants proceeded, in reliance on Code, sections 2028, 2031, to have a right of way condemned. The sections referred to are as follows:

"Sec. 2028. Any person, corporation or copartnership owning or leasing any land not having a public or private way thereto, may have a public way to any railway station, street or highway established over the land of another, not exceeding forty feet in width, to be located on a division line or immediately adjacent thereto, and not interfering with buildings, orchards, gardens or cemeteries; and when the same shall be constructed it shall, when passing through inclosed lands, be fenced on both sides by the person or corporation causing it to be established."

"Sec. 2031. Any owner, lessee or possessor of lands having coal, stone, lead or other mineral thereon, who has paid damages assessed for roads established as above provided, may construct, use and maintain a railway thereon, for the purpose of reaching and operating any quarry or mine on such land and of transporting the products thereof to market. In giving the notices required in such cases, the applicant shall state whether a railway is to be constructed and maintained on the way sought to be established, and, if it be so stated, the jury shall consider that fact in the assessment of damages."

These sections were incorporated into the Code from an act of the Fifteenth General Assembly, page 26, chapter 34, the first of them having been amended, however, by Twenty-fifth General Assembly, page 32, chapter 18; and to meet a contention of appellee that section 2031 relates to the establishment of a right of way under the general sections relating to railroads, and is not subject to the limitations of section 2028, it is proper to say that we reach the conclusion that these two sections are to be construed together, and that it is only on a public way, such as is authorized to be located under section 2028, that a railway may be established under section 2031. A right of way for a railway may be a public way, even though it is not so maintained as to be available for use by the public for travel otherwise than by the use of railway cars. Undoubtedly, it is public in such sense that another mine owner may make use of it without paying additional damages to the owner of the land through which it is constructed. Such a right of way is, by the express terms of the statute, not a private way, but public, and the statutory provisions authorizing it are not open to the objection that they provide for the condemnation of land for a private purpose. Jones v. Mahaska Coal Co., 47 Iowa 35; Phillips v. Watson, 63 Iowa 28, 18 N.W. 659.

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