Schrimper v. Chi., M. & St. P. R. Co.

• Decision Date: 22 October 1901
• Citation: 115 Iowa 35,87 N.W. 731
• Court: Iowa Supreme Court
• Parties: SCHRIMPER v. CHICAGO, M. & ST. P. R. CO.

115 Iowa 35

87 N.W. 731

SCHRIMPER

v.CHICAGO, M. & ST. P. R. CO.

Supreme Court of Iowa.

Oct. 22, 1901.

Supplemental opinion. Original opinion, reported in 82 N. W. 916, affirmed.

PER CURIAM.

Entertaining doubts regarding the correctness of the original opinion filed in this case, a rehearing was granted, in order that we might re-examine the questions involved. On this rehearing we have very carefully reconsidered the case in the light of the additional arguments filed by counsel on either side, and have concluded that the original opinion should be adhered to. The following authorities support the proposition that plaintiff's husband did not acquire a private under-crossing by adverse possession: Hoban v. Cable, 102 Mich. 206, 60 N. W. 466; Town of Deerfield v. Connecticut River R. Co. (Mass.) 11 N. E. 105;Dunham v. City of New Britain (Conn.) 11 Atl. 354;Kittaning Academy v. Brown, 41 Pa. 269. On the question of the defendant's right to change a private crossing once established, we deem it proper to state that before this action was commenced the under-crossing had been filled up, and a new one established, under the circumstances and conditions stated in the original opinion. The suit was in the nature of an action for a mandatory injunction to compel defendant to give plaintiff an open under-crossing. According to the record, the fill was made in the interest of safety and to save expenses, and was such a fill as is common in the history of railway building in this state. The evidence also shows that it would cost $500 to $600 to put in a wooden structure that would afford an open under-crossing, and from $1,000 to $1,200 to put in an iron one. As plaintiff had no contract rights, and no title or right to the under-crossing through adverse possession, the ultimate question is, will the court compel defendant to give her an open under-crossing, under the facts disclosed? As said in the original opinion, grade crossings are the rule in this state, and when a party has an adequate crossing at grade he has all he is entitled to as of right. The expense of creating and maintaining an under or over crossing is also to be taken into account. State v. Chicago, M. & St. P. Ry. Co., 86 Iowa, 304, 53 N. W. 253. Of course, when a crossing is once established, the railway company cannot arbitrarily change it; and there may be cases where, on account of improvements made by the landowner, or for some other cause, no change will be permitted....