Smith v. Hall

• Decision Date: 09 October 1897
• Citation: 72 N.W. 427,103 Iowa 95
• Parties: J. A. SMITH AND MARY J. HUNTER v. M. HALL, et al
• Court: Iowa Supreme Court

72 N.W. 427

103 Iowa 95

J. A. SMITH AND MARY J. HUNTER v. M. HALL, et al

Supreme Court of Iowa, Des Moines

October 9, 1897

Appeal from Chickasaw District Court.--HON. L. E. FELLOWS, Judge.

ACTION to quiet title to an abandoned right of way. The answer alleged that Margaret Smith was the owner of the southeast quarter of the northwest quarter of section 17 in township 94 north, of range 14 west, of fifth P. M., in 1871, and conveyed the right of way, one hundred feet wide, diagonally through said land, to the Milwaukee & Nashua Railroad Company. Afterwards she sold that east of the east line of the right of way, and the Nashua Driving Park Association became the owner thereof. She conveyed that west of the west line of right of way to J. W. Smith, who divided it into acre lots, and deeded them to the other defendants. The railroad company graded and partially completed its road, but work finally ceased and was never in good faith resumed. The above conveyances were made before the right of way reverted, under the statute, by reason of non-user; and, after such reversion, Margaret Smith conveyed any interest she had in the right of way, to the plaintiffs. On this deed they base their claim to the land. The demurrer to this answer was overruled, and, plaintiffs having elected to stand on the ruling, decree was entered quieting title in the defendants. Plaintiffs appeal.

Affirmed.

A. G Lawrence for appellants.

B. A Billings for appellees.

OPINION

LADD, J.

When the right of way of a railroad company is lost by non-user to whom does it revert,--to the original owner thereof, or to the then owner of the remaining portion of the tract of land from which it was taken? The determination of this question involves the construction of section 1260 of the Code of 1873, as follows: "Provided, however, that if said roadbed or right of way, or any part thereof, shall not be used or operated for a period of eight years, or in any case where the construction of a railway has been commenced by any corporation or person, and work on same has ceased and has not been in good faith resumed by any corporation or person for a period of eight years, the land and the title thereto shall revert to the owner of the section, subdivision, tract or lot from which it was taken." The interest in the right of way is the same whether granted or condemned. Brown v. Young, 69 Iowa 625, 29 N.W. 941. The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad, which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by non-user. The exclusive use of the surface is acquired, and damages are assessed, on the theory that the easement will be perpetual; so that, ordinarily, the fee is of little or no value, unless the land is underlaid by quarry or mine. Hollingsworth v. Railway Co., 63 Iowa 443, 19 N.W. 325; Cummins v. Railway Co., 63 Iowa 397; Clayton v. Railway Co., 67 Iowa 238. The nature and...