Slough v. Chi
| Decision Date | 10 June 1887 |
| Citation | 33 N.W. 149,71 Iowa 641 |
| Court | Iowa Supreme Court |
| Parties | SLOUGH v. CHICAGO & N. W. RY. CO. WOODWORTH v. CHICAGO & N. W. BY. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Kossuth county.
These causes involve the same questions, and are submitted upon the same abstract and argument. They are special proceedings by which the plaintiffs seek, by a sheriff's jury, to condemn, or rather ascertain the damages to which they claim they are entitled by reason of the construction of a railroad upon certain streets in the city of Algona, upon which streets the plaintiffs own abutting real estate. The damages were assessed by the sheriff's jury, and the railroad company appealed from the assessment to the circuit court. The defendants filed a motion to set aside and cancel the assessment on two grounds, as follows: “(1) The plaintiffs are not entitled to any damages, because defendant's railway merely crosses said streets; (2) plaintiffs had no right to cause their damages to be assessed by a sheriff's jury.” The court overruled the motion on the first ground, and sustained it on the second ground, and dismissed the proceedings at the plaintiffs' cost. Plaintiffs appeal.Geo. E. Clarke, for appellants.
Hubbard, Clark & Dawley, for appellees.
1. It is provided by section 464 of the Code that cities and towns shall have power “to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys, and public places, but no railway track can thus be located and laid down until after the injury to property abutting on the street, alley, or public places upon which such railway track is proposed to be located and laid down has been ascertained and compensated in the manner provided for taking private property for works of internal improvement in chapter 4, tit. 10, Code 1873.”
In the case of Mulholland v. Des Moines, A. & W. R. Co., 60 Iowa, 740, 13 N. W. Rep. 726, it was expressly determined that the manner of assessing the damages provided for by section 464 of the Code referred exclusively to the company, and not to the abutting owner. That case was followed in Wilson v. Des Moines, O. & S. Ry. Co., 67 Iowa, 509, 25 N. W. Rep. 754. We cannot regard this as an open question, and must adhere to the construction of the statute already adopted.
But it is claimed that the jury selected by the sheriff was the same as had previously been selected at the instance of the railroad company, and that, under section...
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