Reed v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 01 January 1885
• Parties: REED v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

25 F. 886

REED v. CHICAGO, M. & ST. P. RY. CO.

United States Circuit Court, N.D. Iowa, Eastern Division.

November Term, 1885

Charles A. Clarke, for plaintiff.

W. J Knight and Burton Hanson, for defendant.

SHIRAS J.

This proceeding was originally commenced before a sheriff's jury, in Linn county, Iowa, for the purpose of assessing the damages caused to plaintiff by reason of the fact that the defendant had located its track over certain premises owned by plaintiff adjoining the city of Cedar Rapids. From the award of the sheriff's jury an appeal was taken, under the provisions of the state statute, to the circuit court of Linn county, from which court the cause was removed to this court, and at the present term the case was heard before a jury, and a verdict rendered assessing the damages at $1,600. By the express instructions of the court, the jury was directed to ascertain and assess the damages at the time the condemnation proceedings were had under the statute, and the assessment was made by the sheriff's jury, which was on the thirty-first of October, 1883.

Two questions are now presented to the court for determination to-wit: (1) Can the court, in the order to be made for the recording of the verdict, provide for the payment of interest on the damages assessed by the jury? and (2) should the court provide, in case the damages are not paid by the company that the marshal of this court shall oust the railway from the premises in question?

1. In the cases of Daniels v. Chicago, I. & N.R. Co., 41 Iowa, 52 and Hartshorn v. Burlington, C.R. & N.R. Co., 52 Iowa, 613, S.C. 3 N.W. 648, it was ruled that the property owner was entitled to the damages caused to his property at the time of the appropriation for the right of way, with interest thereon at the rate of 6 per cent. from that date. The defendant in the present case claims, however, that while such is the correct rule, yet the interest must be included in the verdict of the jury; and if it is not, then the court cannot provide for the allowance thereof, as that would be assessing the damages by piecemeal, and in support of this position defendant cites the case of Hayes v. Chicago, M. ' St. P. Ry. Co., 64 Iowa, 753; S.C. 19 N.W. 245.

It appeared in that cause that an appeal from the action of the sheriff's jury had been taken to the state court, and thence, by removal, into the United States circuit court for the Southern district of Iowa, in which court the damages were assessed by the jury at $3,000, being an increase of $1,000 over the sum fixed by the sheriff's jury. In the order made by the court no provision was made for the payment of interest. The company subsequently paid the $3,000, and refused to pay any interest thereon. Thereupon the property owner filed a petition for an injunction in the state court asking that the company be restrained from using the right of way condemned over plaintiff's property until interest on the damages assessed was paid. The supreme court of Iowa held that the plaintiff was in fault in not having provision made for the payment of interest in the adjudication had in the Unites States court, and that he could not, by another action, have his right to interest heard and determined. The court held that where the land-owner is kept out of the use of the money assessed as damages, and of the use of the land, he is entitled to 6 per cent. interest on the amount of damages from the date of the taking of the land by the company up to the date of payment; but in the particular case before the court the right to interest was lost because it had not...