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

• Decision Date: 01 January 1883
• Citation: 16 F. 350
• Parties: SIMPLOT v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

16 F. 350

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

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

1883

This proceeding was instituted by the plaintiffs, under the provisions of section 1244 of the Code of Iowa, for the assessment of the damages claimed by plaintiffs to have been caused to their property by the construction and operation of the railroad track now occupied by the defendant corporation at and near the intersection of Iowa and First streets, in the city of Dubuque, Iowa.

The plaintiffs are, and have been for years, the owners of certain realty abutting on Iowa and First streets, and they claim that the track in use by the defendant is located upon their property to their damage; and, for the purpose of settling the amount of damages, the plaintiffs, under the provisions of section 1244 of the Code, made application to the sheriff of the proper county for the appointment of commissioners as therein provided.

Upon the coming in of the report of the commissioners, both parties appealed to the circuit court of Dubuque county, and under the provisions of section 1254 the land-owners appeared in that court as plaintiffs, and the railway corporation as defendant, and thereupon the latter removed the cause to this court.

The cause coming up for trial before the court and jury, the defendant admitted in open court that the said Chicago Milwaukee & St. Paul Railway Company, defendant herein, was the successor by purchase of the rights of the Dubuque Bellevue & Mississippi Railroad Company; of the Chicago Clinton & Dubuque Railroad Company; and of the Chicago, Clinton, Dubuque & Minnesota Railroad Company; that the track now used and owned by defendants was first used for railroad purposes in 1874, and had since then been used by the companies to whose rights this defendant had succeeded; that plaintiffs were the owners in fee-simple of lots 529 and 530, as platted on the original map of the town of Dubuque, as laid out by the commissioners appointed under the provisions of the act of congress of 1836. Thereupon the plaintiffs in open court admitted that the track operated by the defendant and the railroad companies under which it claimed, was not located upon any part of lots 529 and 530 as originally laid out; that it passed over a triangular piece of ground adjacent to said lots, which triangular piece of ground formed part of Front street, as shown on the original map of Dubuque; that Front street, as shown on that map, constituted the reservation which the commissioners had reserved for public uses, as provided for in said act of congress; that plaintiffs knew that said triangle was part of said reservation, and did not claim title thereto as being part of either lots 529 and 530; that they had no patent or conveyance of said triangle, but claimed title thereto under the statute of limitations, and under the decree rendered in the case of Alexander and Charles Simplot v. The City of Dubuque, in the district court of Dubuque county, Iowa.

A map or plat of the ground, showing its present condition and surroundings, was admitted in evidence, as well as a copy of so much of the original map of the town of Dubuque as shows the reservation of Front street, set apart for public uses, with lots 529 and 530, and surroundings.

Plaintiffs introduced in evidence the decree rendered in their favor against the city of Duguque, in a cause instituted by them in 1874, in the district court of Dubuque county, Iowa; and also introduced in evidence a written agreement signed by Amos H. Peaslee, then mayor of the city of Dubuque, William G. Stewart, and the plaintiffs, which provided for the laying down and taking up of the track across the triangle in question; and also introduced evidence showing that the track laid down under this agreement had not been taken up, although they had demanded that it should be removed, both of the city and William G. Stewart, as the representative of the Dubuque Harbor Company; that after Stewart was through with the use of the track, the Chicago, Clinton & Dubuque Railroad Company commenced the use of the track, placing a car on the same in the night-time, without the knowledge or consent of plaintiffs; that the Chicago, Clinton & Dubuque Railroad Company and its successor have ever since used the track and refuse to remove it.

The court directed the jury to find a special verdict in answer to certain questions submitted to them by the court, and these findings are to be read as part of this statement of facts.

Both parties moved for judgment upon the special findings or verdict of the jury. Upon consideration thereof, the court found and adjudged that the proceedings should be dismissed at cost of plaintiffs, for the reasons that plaintiffs had failed to show that they were the owners of the triangle over which the defendant's track is located, and that hence they could not recover damages in this proceeding, the grounds for which conclusion are more fully set forth in the following opinion.

M. H. Beach, for plaintiffs.

W. J. Knight and D. S. Wegg, for defendant.

SHIRAS J.

By the act approved July 2, 1836, congress provided for the 'laying off the towns of Fort Madison and Burlington, in the county of Des Moines, and the towns of Bellevue, Dubuque, and Peru, in the county of Dubuque, territory of Wisconsin.'

The act provided that the towns named should, under the direction of the surveyor general, be laid off into town squares, and that, upon the completion of the survey of the lots, a plat thereof should be returned to the secretary of the treasury, and the lots should be offered for sale at public sale; it being further enacted 'that a quantity of land of proper width, on the river banks, at the towns of Fort Madison, Bellevue, Burlington, Dubuque, and Peru, and running with said river the whole length of said towns, shall be reserved from sale (as shall also the public squares) for public use, and remain forever for public use, as public highways, and for other public uses.'

Under the provisions of this act of congress, and the act amendatory thereof, passed March 3, 1837, the town of Dubuque was laid out, and a plat thereof was executed and filed at Washington as required by the act.

The reservation provided for on the river bank was properly laid off and platted, and on the map was clearly indicated by well-defined lines.

In 1853 congress passed 'An act for the relief of the town of Bellevue and the cities of Burlington and Dubuque,' whereby there was granted to the cities of Burlington and Dubuque the land bordering on the Mississippi river, and reserved for public uses under the act of 1836, to be disposed of as the corporate authorities of said cities should direct; it being further provided 'that the grant made by this act shall operate as a relinquishment only of the right of the United States in and to said premises, and shall in no manner affect the rights of third persons therein, or to the use thereof, but shall be subject to the same.'

In the case of Cook v. City of Burlington, 30 Iowa, 94, the supreme court of Iowa construed this act of congress of 1853, and its effect upon the reservation provided for in the act of 1836, and reached the following conclusions:

(1) That under the act of 1836 the strip reserved was dedicated to public use, and that, after the sale of lots abutting thereon to individuals, the act making this dedication assumed the character of a contract which could not afterwards be abrogated and repealed; that after the passage of the act of 1836, and the sale of lots thereunder, the public acquired a right in this reserved strip for a highway and other public uses; and to the extent of the right acquired by the public, that of the government was limited and controlled. The use was dedicated to the public, and the act of congress making the dedication was in the nature of a contract which could not afterwards be repealed; that the title remained in the government, but was held in trust.

(2) That the act of 1853 had the effect of subrogating the city to the rights of the United States government in the property; that the power of absolute disposition did not reside in the government, and did not pass to the city; that the city took it for the same purposes for which the government held it, subject to the same trusts and affected by the same conditions; that it could dispose of it for public uses, but not for private uses; that having only a qualified title, the city cannot convey an absolute one.

(3) That the reservation was set aside 'for public highway and for other public uses;' that the use thereof for the construction of a railroad along the same, came within the purposes of the dedication by the act of congress, it being covered by the phrase 'other public uses,' even if it did not come within the use 'for a public highway.'

In the cases of Milburn v. City of Cedar Rapids, 12 Iowa, 247; Clinton v. C.R. & M.R.R. Co. 24 Iowa, 455; C.N. & S.W.R. Co. v. Mayor of Newton, 36 Iowa, 299, and other causes following the rulings therein announced, it was held by the supreme court of Iowa that a railroad might be located along a public street or highway without the consent of the city or town, and without compensation being made therefor, subject, however, to proper equitable control.

This rule remained the law of the state until the adoption of the Code of 1873, by section 464 of which it was enacted that cities shall have the power to authorize or forbid the location or laying down of tracks for railways, etc., along the streets and alleys, etc., and further providing for the payment of damages. This section, however, forms part of chapter 10, tit. 4, of the Code, known as 'The General Incorporation Act,' and does...