Reter v. Davenport, R.I. & N.W. Ry. Co.

• Decision Date: 16 September 1952
• Docket Number: No. 48017,48017
• Citation: 243 Iowa 1112,35 A.L.R.2d 1306,54 N.W.2d 863
• Parties: , 35 A.L.R.2d 1306 RETER et al. v. DAVENPORT, R. I. & N. W. RY. CO.
• Court: Iowa Supreme Court

Page 863

54 N.W.2d 863

243 Iowa 1112, 35 A.L.R.2d 1306

RETER et al. v. DAVENPORT, R. I. & N. W. RY. CO.

No. 48017.

Supreme Court of Iowa.

Sept. 16, 1952.

Lane & Waterman, Davenport, and E. C. Halbach, Clinton, for appellant.

Adam A. Kreuter, and George C. Claassen, Cedar Rapids, for appellees.

SMITH, Justice.

On February 12, 1947, defendant and Clinton Industries, Inc., united in an application to the Iowa State Commerce Commission for a certificate of necessity permitting condemnation of a 60 foot right of way over plaintiffs' premises for additional switching and storage trackage to the Clinton Industries plant pursuant to chapter 481, Iowa Code 1946, I.C.A. All Code citations refer to this Code.

Over objections by plaintiffs and after due notice and hearing the commission (June 17, 1947) ordered that a 'Certificate of Authority to condemn real estate be issued * * * certifying that the parcel of land * * * is essential for railroad purposes in connection with the providing of an industrial service track to the Clinton Industries, Inc., Clinton, Iowa.' Any taking for 'storage track' was denied and the width of the proposed right of way accordingly limited to thirty feet instead of sixty as asked.

Thereafter defendant instituted condemnation proceedings under the provisions of Code Chapter 472, I.C.A., and the amount of the resulting award ($4,500) was deposited with the sheriff. Plaintiffs' petition on appeal to the district court, August 15, 1947, named both defendant railway company and Clinton Industries as defendants.

After a long and involved series of procedural moves--motions, rulings and amendments to and recasting of pleadings--plaintiffs, on March 9, 1950, filed a 'second amended and substituted recast petition' naming defendant railway company as sole defendant. Count I (our only concern here) prays that both the proceeding before the commerce commission and the subsequent condemnation proceeding 'be voided and held to be of no force and effect in that it be adjudged there was and is no necessity for the condemnation of plaintiffs' said property.' It also alleges the proposed taking 'was intended for purely private and not for public use.'

The matter went to hearing August 14 and 15, 1950, on defendant's application, under 58 I.C.A. Rule 105, I. R.C.P., for determination of points of law raised in plaintiff's Count I. After some discussion among court and attorneys as to the issues and the nature of the hearing--whether de novo or otherwise--the weight to be given the commission's ruling and certificate of necessity, the admissibility of extrinsic evidence and the burden of proof, the court, with apparent approval of counsel, expressed a tentative opinion that two issues were here presented, one constitutional and the other the validity of the commission's action under the evidence presented before it. To this plaintiffs' counsel added 'one other related question * * * whether or not the land being condemned here is for private or for public purposes.'

Plaintiffs offered a transcript of the commerce commission hearing and the various objectors' exhibits in connection therewith. Defendant offered the commission's decision, order and certificate of authority or necessity and the blue prints submitted by defendant Railway Company and Clinton Industries at the hearing before the commission.

In addition plaintiffs called witnesses to show there was no necessity for the proposed taking and that it was in fact for a private and not a public purpose. The testimony was received subject to objection as in equity.

The trial court voided the condemnation proceedings, squarely holding the proposed taking of plaintiffs' property was for a private use and therefore unconstitutional, and that it was unnecessary to determine the question of necessity or the admissibility of testimony on that point. Defendant appeals from the decision. The adequacy of the award (Count II) has not yet been litigated.

I. An extensive statement of the physical facts is unnecessary. Clinton Industries, Inc. (Now Clinton Foods, Inc.) was and is a large industrial concern engaged in processing corn and manufacturing various food products from corn and soy beans. Its plant is located in Clinton along a branch of the Mississippi River known as Beaver Slough.

Plaintiffs own a smaller area also lying along Beaver Slough, and surrounded on all other sides by the Clinton Industries property. Plaintiffs' property was originally used in the conduct of a business of selling wood and ice and more recently coal. There is testimony they were contemplating sale of gravel to brought up the Beaver Slough from other land owned by them farther downstream.

Both Clinton Industries and plaintiffs were served by spur tracks of the defendant Railway Company but Clinton Industries had, in 1946, planned an extensive enlargement and rearrangement of its plant to meet its expanding business. The company claimed its then existing track connection with defendant was inadequate. The planned new right of way crossed plaintiffs' premises. Hence the joint application to the Commerce Commission and the long litigation leading to this appeal.

II. The power of eminent domain is inherent in the sovereign state and is not dependent on express constitutional grant. 29 C.J.S., Eminent Domain § 2. The right to exercise the power is delegable to railroads because the use to which they devote the property is inherently public. Stewart v. Board of Supervisors, 30 Iowa 9, 19-26. 29 C.J.S., Eminent Domain, § 37.

Code section 481.3, I.C.A. authorizes a railroad to acquire necessary right of way 'by condemnation or purchase' for 'a reasonably adequate and suitable spur track * * * required for the successful operation of any existing * * * industry.' It expressly provides 'No such track is required to be constructed until * * * the state commerce commission, after hearing, shall have declared the same to be necessary.' There are some other qualifying provisions not material here.

Later sections 481.4, 481.5 and 481.6 provide that the one 'primarily to be served' may be required to pay the cost of acquisition and construction. Section 481.7 furnishes a method by which the one 'primarily to be served' may go to the commerce commission which 'after reasonable notice to the railroad company shall investigate and determine all matters in controversy and make such order as the facts * * * will warrant.' Section 481.8 provides that any subsequent user of the track shall repay the one 'primarily to be served' an equitable proportion of the primary cost 'to be determined by the commission.'

In addition to these provisions of chapter 481, Code section 471.6, I.C.A. gives railroad the right to condemn for general railroad purposes and section 471.9 subd. 2 expressly authorizes condemnation for purposes of acquiring right of way for spur track:

'Any such corporation * * * may, by condemnation or otherwise, acquire land for the following * * * purposes: * * *

'2. For the purpose of constructing a track or tracks to any * * * manufactory, warehouse, or mercantile establishment.'

The provisions of Code chapter 481, I.C.A. clearly purport to authorize condemnation by a railroad company of right of way for a spur track even though it be originally intended to serve but one private industry. Code section 481.7, I.C.A. surely contemplates that a reluctant railroad could be compelled, upon application to the commission, to acquire such right of way in an appropriate case. Chicago & N. W. R. Co. v. Ochs, 249 U.S. 416, 419, 39 S.Ct. 343, 63 L.Ed. 679.

III. Is such litigation constitutional? Does it violate fundamental provisions, state and federal, against taking private property for private use? Clearly the statutes above set out constitute legislative determination that the use referred to is public even though there be (as here) but one industry 'primarily to be served.'

The right of eminent domain being an attribute of sovereignty the legislature has the initial duty of determining what constitutes a public use. Sisson v. Board of Supervisors of Buena Vista County, 128 Iowa 442, 452, 453, 104 N.W. 454, 458, 70 L.R.A. 440; 29 C.J.S., Eminent Domain, § 30; 18 Am.Jur., Eminent Domain, 146; Bankhead v. Brown, 25 Iowa 540, 541, 545; Noll v. Dubuque B. & M. R. Co., 32 Iowa 66. 'It is for that body (the legislature) to determine in the first instance * * * what are the public uses, to subserve which a grant of power (to condemn) may properly be made. That this may not be done arbitrarily, and having no proper regard for the character of the conditions to which application is to be made, or the results to follow the use, may readily be conceded. * * * It is to be said, however, that the doctrine common to statutory construction, from the viewpoint to the Constitution, is applicable here * * * that interference on the part of the courts will not be warranted, except there be presented a clear, plain, and palpable case of transgression.' Sisson v. Board, supra. See Bankhead v. Brown, 25 Iowa 540, 545-546, in which Judge Dillon says: 'But if a public use be declared by the legislature the courts will hold the use public, unless it manifestly appears by the provisions of the act, that they can have no tendency to advance and promote such public use. Per Shaw, Ch. J. in Hazen v. Essex County, 12 Cush. 475, 477.' See also opinion by Judge Miller in Stewart v. Board of Supervisors, supra, 30 Iowa 9, 19 et seq.

It is in this constitutional sense only that the question of public use may be said to be judicial. It is ultimately for the courts only where constitutionality of the legislative declaration is questioned. As the rule is commonly stated: 'where the legislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts will not interfere therewith unless the use is clearly and manifestly of a private character.' 29 C.J.S. ...