Slocumb v. Chicago, B. & Q.R. Co.
| Decision Date | 23 March 1882 |
| Citation | 11 N.W. 641,57 Iowa 675 |
| Parties | SLOCUMB v. THE C., B. & Q. R. CO |
| Court | Iowa Supreme Court |
Appeal from Des Moines District Court.
ON the 19th day of June, 1880, the plaintiff filed her petition alleging that she is the owner of a tract of land containing two and 40-100 acres, and that the B. & M. R. R'y Co and its successors, the C., B. & Q. R'y Co., have operated a railway adjacent to said premises for the past twenty-five years; and that the defendant, the C., B. & Q. R'y Co. has entered upon and threatens to use for railway purposes a strip of said premises of the width of about twenty-one feet and of the length of about three hundred and fifty feet without the consent, and without any effort to secure any right of the plaintiff. The plaintiff prays for an injunction to restrain the defendant from using entering upon, or in any manner interfering with the land of plaintiff.
On the 15th day of November, 1880, the plaintiff filed an amendment to her petition alleging, that defendant has threatened, and is about to permanently divert Hawkeye Creek, a natural stream of water that has always flowed over said land of plaintiff, and to accomplish said diversion defendant has cut a new channel for said creek opposite to the land of plaintiff, and filled in the bed of the creek at a point just above the plaintiff's premises, whereby the plaintiff is deprived entirely of the flow of said water on her premises. The plaintiff prays that an injunction may be granted to restrain said defendant from diverting and turning said channel in Hawkeye Creek off from plaintiff's premises. The court entered a decree giving to the plaintiff the right of possession of the strip of ground in controversy, and enjoining the defendant from interfering therewith, without first making compensation as required by law, and dismissing the plaintiff's petition as to the relief asked for the diversion of Hawkeye Creek, and ordering that the plaintiff be left to her remedy at law. Both parties appeal.
REVERSED.
T. C. Whitely and P. Henry Smyth & Son, for plaintiff.
Hall & Huston and J. W. Blythe, for defendant.
I.
Prior to 1858 C. Range and G. C. Wilhelm owned certain land, embracing the premises in controversy, and agreed in parol to allow the B. & M. R. R'y Co. a right of way seventy feet wide over the same, in consideration of certain acts to be performed by said railway company. Under this agreement the railway company entered upon said land and constructed its road over it. A fence was constructed about fourteen feet from the center line of the railway, but the evidence does not show by whom this fence was built. Afterward Wilhelm and Range commenced an action against the B. & M. R. R'y Co., alleging that it had failed to perform the conditions of its agreement, and claiming $ 3,000 damages. The trial resulted in a judgment in favor of the plaintiff for $ 449, which the B. & M. R. R'y Co. paid. In 1868 the executor of the estate of G. C. Wilhelm conveyed an undivided half of the property in controversy to the plaintiff and C. Range, describing it as running to the center of the B. & M. R. Railroad, and thence along said railroad one chain and fifty links, containing 2 and 40-100 acres, "subject to any right of way said railroad company may own over the same." In 1869 C. Range conveyed an undivided half of said premises to the plaintiff, describing it as above, "subject to right of way of said railroad company." The plaintiff went into possession of said premises in 1869, under these conveyances, and has continued in possession ever since. The front of these premises was about fifteen feet above the grade of the street. The plaintiff caused the earth to be removed from the front, and taken to the rear of the premises, raising them about four feet on the side next to the railroad. Upon this the plaintiff planted raspberry bushes and cherry trees, and had an asparagus bed and a pie-plant bed. The defendant, the C., B. & Q. R'y Co., succeeded to the rights of the B. & M. R. R'y Co., and, in June, 1880, moved the fence in upon the plaintiff's inclosure twenty-one feet, and proceeded to construct an additional railway track. It is to restrain the construction of this track that this action is, in part, instituted.
As against Wilhelm and Range, it cannot be doubted that, by their parol license, and the B. & M. R. R'y Co.'s entering upon the land and constructing its railway, and the subsequent payment of the damages assessed on account of its failure to perform its agreement, it acquired a right of way thirty-five feet in width from the center of its track. The easement which the railway company thus acquired was obtained by contract, and though resting in parol could not be revoked by Wilhelm and Range. Washburne on Easements and Servitudes, page 24, and cases cited in notes.
When the plaintiff acquired her interest in the property from the estate of Wilhelm and Range, the fence stood within fourteen feet of the railroad track, and there was nothing upon record from which the extent of the easement could be determined. The plaintiff, however, was advised by the presence of the railroad, and by the recitals in the conveyances of the property to her, that the railway company claimed a right of way over the premises, and the property was conveyed to her subject to that right. The plaintiff was also advised by the law that this right of way might extend to the width of one hundred feet, or fifty feet from the center of the railroad track. Having this information, and being thus affected with notice, it was the duty of the plaintiff to inquire of the railroad company what right it claimed in the premises. If the plaintiff had made this inquiry she would have ascertained that the railroad company claimed a right of way extending thirty-five feet from the center of its track. She must be regarded as having notice of all the facts which due and timely inquiry would have elicited. Marratt v. Deihl, 37 Iowa 250.
The plaintiff insists that her right to the strip in question has become absolute by adverse possession. She relies upon the case of Davies v. Huebner, 45 Iowa 574. In that case no portion of the width of the road had ever been opened or used from the time the road was established, in 1846, until the institution of the suit, a period of thirty years, and the plaintiff had fenced and been in the actual use of one-half of the width of the road for a period of more than ten years. The decision is grounded mainly upon the fact that no portion of the road had ever been used. It is apparent that the case is not at all analogous to the one at bar, in which the railroad company constructed its road...
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