Remey v. Iowa Centrasl Railway Co.

• Decision Date: 14 February 1902
• Parties: WILLIAM C. REMEY et al., v. IOWA CENTRAL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

89 N.W. 218

116 Iowa 133

WILLIAM C. REMEY et al., v. IOWA CENTRAL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 14, 1902

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

CONDEMNATION proceedings of a railroad right of way. A sheriff's jury was appointed at defendant's request to assess the damages plaintiffs might sustain by reason of the taking of the right of way through their land, and returned the following verdict: "We do not find that he or any of the prior owners of said land have ever paid back the damage which was originally paid by the corporation that first obtained the right of way. Guided by the law of this state in such cases made and provided, viz., section 2016 of the Code of 1897, we do hereby assess the damages of the said property at one hundred twenty-five dollars, to be disposed of as provided in said section 2016 of the Code, and return this as our finding and verdict." The defendant appealed to the district court, and there filed an answer, in which it alleged that in 1867 plaintiff's grantors received from the Iowa Central Railroad Company (not defendant) the sum of $ 400 as damages in full for the appropriation of this identical right of way; that in 1870 the roadbed in question was graded; that in 1879 the Moulton & Albia Railroad Company took possession thereof, caused it to be condemned as an abandoned right of way, constructed a road thereon, and operated it until 1888, when its use or operation ceased until 1898, the rails being moved the year previous; that in 1898 the defendant entered upon said roadbed and right of way, constructed its railroad thereon, and is now operating the same; that plaintiffs, not having refunded the damages previously received, are not entitled to compensation in this action. The plaintiffs demurred to this answer on the ground that the right of way had not been used nor the road operated since 1888,--for more than eight years,--and therefore had reverted to the owners of the land from which taken, and might not be again condemned without compensation. This demurrer was sustained by the district court, Hon. F. W Eichelberger presiding, and later an order was entered, Hon Robert Sloan presiding, confirming the assessment of damages and directing the sheriff to pay same to plaintiffs and defendant to pay costs. The defendant appeals.

Affirmed.

T. B Perry and N. E. Kendall for appellant.

Wm. A. Nichol and Townsend & Mason for appellees.

LADD C. J. MCCLAIN, J., (concurring).

DEEMER, J., SHERWIN, J., (dissenting).

OPINION

LADD, C. J.

The Moulton & Albia Railroad Company abandoned the right of way in 1888, ten years before taken by the defendant and a railroad constructed and operated thereon by it. The damages originally assessed and paid the owners for the appropriation of the right of way have never been refunded, and it is insisted by appellant that, until this has been done, none can be claimed by their grantees for the taking by defendant. On the other hand, plaintiffs claim the right of way reverted to them at the end of eight years, of non-user and cannot be taken again without compensation. The decision of this shortly defined issue depends upon the construction to be given the sections of the Code on the subject.

"Non-user of Right of Way. Where a railway constructed in whole or in part has ceased to be operated for more than five years; or where the construction of a rail way has been commenced and work on the same has ceased and has not, in good faith, been resumed for more than five years, and remains unfinished; or where any portion of any such railway has not been operated for four consecutive years, and the rails and rolling stock have been wholly removed therefrom,--it shall be treated as abandoned, and all rights of the person or corporation, constructing or operating any such railway, over so much as remains unfinished or from which the rails and rolling stock have been wholly removed, may be entered upon and appropriated as provided in the next section. If the railway or any part thereof shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased and has not been in good faith resumed for eight years, the right of way, including the roadbed, shall revert to the owner of the land from which said right of way was taken." Section 2015, Code.

This, with the section following, is a re-enactment of sections 1260 and 1261 of the Code of 1873, as amended by chapter 15 of the acts of the Eighteenth General Assembly, in force during the period involved in this action. As previous acts throw little, if any, light on the construction to be given, they need only be referred to. See section 1295, Code 1860; chapter 91, Acts Thirteenth General Assembly; chapter 65, Acts Fifteenth General Assembly. The genesis of a statute alone will not justify the rejection of a portion of it, when capable of being accorded a meaning in harmony with other portions. The evident object of construction is to ascertain the meaning and intention of the lawmakers, as exemplified in the statutes under consideration, and to give these effect. It will be observed that this section undertakes to define the circumstances under which a right of way will be treated as abandoned. This may happen in three ways: The first and third relate to the operation of a railway completed in whole or in part, and abandonment is established by showing that its operation has ceased for five years, if the rails or rolling stock remain; but, if these have been removed, then the time is but four years. The matter of operation is not involved in the second. If work on an unfinished road, once begun, has ceased for five years and not been in good faith resumed, the right of way is to be treated as abandoned. Regardless of what might amount to an abandonment at common law, this section clearly defines precisely what shall be treated as, and constitute, an abandonment within its meaning; and it is such a right of way, so abandoned, which "may be entered upon and appropriated as provided in the next section." But, suppose it is not "entered upon and appropriated;" what is to become of it? If the period of non-user or failure to resume work has extended to eight years, the right of way reverts to the "owner of the land from which said right of way was taken." "Revert," as here used is a technical word, and is to be accorded a meaning as such. Code, section 48, par. 2. It is the return to the owner of the fee of the easement formerly appropriated, or, perhaps, more accurately speaking, the removal of the burden cast upon the fee. The instant the right of way reverts to the owner, the easement, with all its incidents, is extinguished and the owner of the tract from which taken restored to complete dominion over the entire property. See Lewis, Eminent Domain, section 596; Smith v. Hall, 103 Iowa 95, 72 N.W. 427. This is put beyond question by the wording of the statute, mentioning not only the right of way as reverting, but the roadbed as well. No condition is attached to the reversion, and it is pure assumption to say that the right of way reverts to the owner, subject to the right of some company, without any interest therein, to seize the land formerly a right of way and appropriate to its own use without compensation to any one. Nothing in the letter or spirit of these statutes justifies an attempt to read into them such a condition. After reversion, there remains no right of way, abandoned or otherwise. Until then, after being treated as abandoned it may be entered upon and appropriated as pointed out in the next sections, which reads:

"Condemning Abandoned Right of Way. In case of abandonment as provided in the preceding section, any other corporation may enter upon such abandoned work, or, any part thereof, and acquire the right of way over the same, and the right to any unfinished work or grading found thereon, and the title thereto, by proceeding as near as may be in the manner provided in this chapter, but parties who have previously received compensation in any form for the right of way on the line of such abandoned railway, which has not been refunded by them, shall not be permitted to recover the second time. The value of such roadbed and right of way, excluding the work done thereon, when taken for a new company, shall be assessed for the benefit of the former company or its legal representative."

Note that it is the "abandoned right of way" that may be condemned, not the land or an easement therein after it has ceased to be a right of way. After the right of way has reverted to the owner, none is left for condemnation. It is only up to that time that a right of way may be treated as abandoned. It then belongs to the former company, and to it and not the owner of the fee, the statute requires compensation to be made. It is only when damages have never been awarded, or if awarded, have never been paid the owner, or, if paid, have been returned by him, that compensation will be made to him, instead of the company; for the statute proceeds on the theory that the taking is from it, if the easement has been acquired by the payment of damages assessed, and these not restored by the owner. The last clause of section 2016 is conclusive on this proposition; for under it the value of the roadbed and right of way are to be assessed for the benefit of the former company, and this evidently would not be exacted after such company had lost its interest in the property, through reversion to the owner. This is not a contest between the company abandoning the right of way and the owner of the fee. For all that appears that company may have ceased to exist. Indeed, the claim of defendant, reduced...