Rinard v. Burlington & Western R'Y Co.

• Decision Date: 08 June 1885
• Citation: 23 N.W. 914,66 Iowa 440
• Parties: RINARD v. THE BURLINGTON & WESTERN R'Y CO
• Court: Iowa Supreme Court

23 N.W. 914

66 Iowa 440

RINARD v. THE BURLINGTON & WESTERN R'Y CO

Supreme Court of Iowa, Des Moines

June 8, 1885

Appeal from Mahaska District Court.

THIS is an action to recover damages, which the plaintiff alleges he sustained by reason of the construction of a railroad track in a public street, opposite to a certain city lot owned by him. There was a trial by jury, which resulted in a verdict and judgment for the plaintiff for $ 300. Defendant appeals.

REVERSED.

Kelly & Cooper and John F. Lacey, for appellant.

L. C Blanchard, for appellee.

OPINION

ROTHROCK, J.

In the year 1883, the defendant was engaged in constructing a narrow gauge railroad from Burlington to Oskaloosa. It was necessary to procure the right of way for the road through a part of the city of Oskaloosa. Station grounds were purchased in the city, and a row of city lots on the east side of, and abutting upon, Norman street were purchased upon which to lay the track leading up to the station. The plaintiff's lot fronts on the opposite side of the street from this row of lots. Norman street is sixty-six feet wide.

The evidence shows without conflict that the iron rails, and the ties upon which they are laid, do not touch the line of the street at any point opposite to the lot of the plaintiff. They are laid entirely upon the row of lots purchased by the defendant for right of way for its track. The surveyor and engineer, who made a survey and plat to be used in the trial of the case, testified that "none of the rails or ties are in the street there opposite the plaintiff's lot." It is useless to contend that there was any evidence in the case to the effect that the ends of the ties encroached upon the street. It further appears that the railroad grade is one foot above the surface of the street opposite one end of the block in which the plaintiff's lot is situated, and two and a half feet above the surface of the street at the other end of the block; and the highest point between the street and the top of the embankment opposite plaintiff's lot is about four feet. In constructing this road-bed, part of the slope of the bank extends into the street. This slope, being the base of the embankment or road-bed at its outer edge and up to the line of the street, does not appear to be any injury to the plaintiff's lot. There was no witness in the case who testified that it was any damage whatever. On the contrary, one of the witnesses for the plaintiff testified as follows: "I do not estimate any damage from the dirt piled over into the street, if there was not anything else. I would not think there was any damage." Another witness testified to the same effect. The evidence tended strongly to show that some years since the city of Oskaloosa established the grade of its streets, and that the natural surface of Norman street, opposite the plaintiff's property, was so far below the established grade that, if filled up thereto, no part of the railroad embankment would be in the street, because it would bring the surface of the street above or even with any earth placed there by the defendant. And it does not appear that the plaintiff would have any ground of complaint or claim for damages against the city if the surface of the street should be raised to the established grade.

The plaintiff bases his right to recover damages upon section 464 of the Code. That section, in enumerating the powers of cities and...