Snyder v. The Fort Madison Street Railway Co.

• Decision Date: 10 May 1898
• Citation: 75 N.W. 179,105 Iowa 284
• Parties: MARY L. SNYDER, et al., Appellants, v. THE FORT MADISON STREET RAILWAY COMPANY
• Court: Iowa Supreme Court

75 N.W. 179

105 Iowa 284

MARY L. SNYDER, et al., Appellants, v. THE FORT MADISON STREET RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

May 10, 1898

Appeal from Lee District Court.--HON. H. BANK, Judge.

ACTION in equity to enjoin the maintaining of a trolly pole in front of the dwelling house of the plaintiffs. A demurrer to the petition was sustained, and judgment was rendered in favor of the defendant for costs. The plaintiffs appeal.

Reversed.

T. B Snyder for appellants.

J. D M. Hamilton for appellee.

ROBINSON J. DEEMER, C. J. (dissenting).

OPINION

ROBINSON, J.

The material facts alleged in the petition, and admitted by the demurrer, are as follows: The plaintiffs have owned and occupied as a homestead, since the first day of March, 1892, part of a lot and a dwelling house thereon situated on Broadway street, in the city of Ft. Madison. The lot is bounded on the west by that street, and the house fronts thereon, and on a public park, from which it is separated by the street. The streets, avenues, parks, and lots of the city were laid out and platted under and by virtue of an act of congress approved July 2, 1836, and an act amendatory thereof approved March 3, 1837, by the government of the United States, from which the title of the plaintiffs was derived. The defendant is a corporation organized under the laws of this state, and is engaged in operating a street railway, which is laid along Broadway street, in front of the premises of the plaintiffs. In the summer of the year 1895, electricity was substituted for the animal power which had been previously used to operate the railway. The trolly system was adopted, and, to aid in supporting the trolly wire, a pole twenty or more feet in height was placed in front of the dwelling of the plaintiffs, in that side of the street which was next to their lot. The petition alleges that the pole is an obstruction to the enjoyment by the plaintiffs of their homestead; that it is a nuisance; that there was no necessity for placing the pole where it is; that it could have been so placed that it would not have affected the plaintiffs seriously; that, before it was erected, the plaintiffs protested against its being placed where it now is, and since its erection have offered to pay to the defendant the cost of moving it to a point near the north line of their property, but that the offer was refused; and that they have been greatly damaged by the placing of the pole where it now is, and will sustain much damage in the future if it be not removed. The petition further states that the defendant has not caused the damage which the plaintiffs have suffered, and will suffer by reason of the erection of the pole, to be assessed, nor has it compensated them for such damage. The plaintiffs ask for a mandatory injunction requiring the defendant to remove the pole from their property, and particularly from the front of their dwelling house; and they ask, further, that the defendant be perpetually enjoined from erecting or maintaining the pole in front of the dwelling, and for general equitable relief. The demurrer is based upon the ground that the petition does not state facts which entitle the plaintiffs to the relief they ask.

I. The acts of congress under which the town of Ft. Madison was platted are found on pages 962-964 of the Revision of 1860. Those acts were considered in the case of City of Dubuque v. Maloney, 9 Iowa 450, where it was held that the fee of the streets of a city platted and dedicated by virtue of those acts was, subject to the public easement, vested in the owners of the adjoining lots, and that the city had no right to use the streets for any purpose different from that for which they were originally designed. The same principle was approved in Cook v. City of Burlington, 30 Iowa 94. In Williams v. Carey, 73 Iowa 194, 34 N.W. 813, a distinction between cases where the fee to streets is in the abutting property owners and where it is in the city, was noticed. It follows that the defendant in this case could not rightfully acquire from the city nor exercise rights in the streets which were not authorized by the dedication of the streets, but are inconsistent with the easement granted to the public. Section 464 of the Code of 1873 gave to cities and towns power to authorize or forbid the location and laying down of tracks for street railways on all streets, alleys, and public places. See, also, Damour v. Lyons City, 44 Iowa 276. It now appears to be settled that an ordinary surface street railway operated by animal power is not a new or additional burden upon the public easement in a street, but one which the right of the public to use the street authorizes for the purpose of facilitating public travel. Citizens Coach Co. v. Camden Horse Co., 33 N.J.Eq. 267 (36 Am. St. Rep. 542); Attorney General v. Metropolitan R. Co., 125 Mass. 515; Hobart v. Railroad Co., 27 Wis. 194; Texas & P. Ry. Co. v. Rosedale St. Ry. Co., 64 Tex. 80; Elliott v. Railroad Co., 32 Conn. 579; Carson v. Railroad Co., 35 Cal. 325; Merrick v. Railroad Co., 118 N.C. 1081 (24 S.E. 667); Cincinnati & S. G. Ave. St. Ry. Co. v. Village of Cumminsville, 14 Ohio St. 523; Brown v. Duplessis, 14 La.Ann. 842; Railroad Co. v. O'Daily, 12 Ind. 551; Chicago, B. & Q. R. Co. v. West Chicago St. R. Co., 156 Ill. 255 (40 N.E. 1008); Jaynes v. Railway Co. (Neb.) 74 N.W. 67; Booth Street Railway Law, section 83.

Streets are designed for public uses, among which are the construction and operation of street railways; and if they are so constructed and operated as not to affect prejudicially the rights of the public, nor to interfere with the proper use of the street by others, no burden not contemplated by the dedication of the street is placed upon it. In such cases the kind of power used in operating the railway is wholly immaterial. It is said, however, that the erection of trolly poles, and the placing of wires upon them, is a permanent obstruction of the street for the benefit of the street railway, which necessarily interferes with the proper use of the street by others. That poles and wires might be so erected and arranged as to have that effect is undoubtedly true, but the mere fact that the spaces they occupy cannot be used for other purposes does not show an improper use of the street. They are designed to aid in the rapid, convenient, and economical transportation of persons from place to place, and thus to facilitate the use of the street by the public for whom it was intended. It is true that some authorities hold that the erection and maintenance of poles in the streets do cast a burden upon the street which it was not intended to bear. Jaynes v. Railway Co., supra, and cases therein cited. But the greater weight of authority appears to sustain the conclusion which we reach. Taggart v. Railway Co., 16 R.I. 668, 16 R. L. 669 (19 A. 326); Halsey v. Railway Co., 47 N.J.Eq. 380 (20 A. 859); Lockhart v. Railway Co., 139 Pa. 419 (21 A. 26); Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co., 95 Ky. 50 (23 S.W. 592); Railway Co. v. Mills, 85 Mich. 634 (48 N.W. 1007); Chicago, B. & Q. R. Co. v. West Chicago St. R. Co., 156 Ill. 255 (40 N.E. 1008); Cumberland Telegraph & Telephone Co. v. United Electric Ry. Co., 93 Tenn. 492 (29 S.W. 104); Cross-well Electricity, section 108, 109, 182, 183; Booth Street Railway Law, section 83. It follows from what we have said that an abutting lot owner has no sufficient ground to complain of the erection and maintenance of street railway poles in the street in front of his premises if they are properly placed, and this is true whether he owns the fee of the street or not.

Our attention is called to section 1324 of the Code of 1873, as amended by chapter 104 of the Acts of the Nineteenth General Assembly, which relates to the erection of telegraph and telephone poles along the highways of the state, and to section 1325 of the Code of 1873, which provides for the payment of damages caused by setting poles in private grounds, but we do not find anything in these sections to conflict with what we have said. It has been held in some cases that the erection of telegraph and telephone poles in streets imposes a new burden, because they do not in any manner aid in the use of the street by the public; but, as no question of that character is involved here, we refrain from expressing any opinion in regard to it.

II. It is the duty of a street-railway company to so construct and operate its railway as not to interfere unnecessarily with the right of abutting property owners to use and enjoy their property. Cadle v. Railroad Co., 44 Iowa 11; Crosswell Electricity, 85. A private individual may maintain an action for relief from injury to himself or his property if the injury be separate and distinct from that which affects the general public. Churchill v. Water Co., 94 Iowa 89, 62 N.W. 646. The petition in this case alleges, and the demurrer admits, that the plaintiffs have sustained serious injury from the placing and maintaining of the pole in its present location, and that the injury will continue if the pole be not removed. To show this more clearly, we set out somewhat more fully than we have already done the substance of averments contained in the petition. In addition to the platting of the town, the location of the property in question, and the adoption by the defendant of the trolly system, the petition alleges that the plaintiffs have since the year 1892, owned and occupied as a homestead the premises described; that the defendant erected in that part of the street appurtenant to their property, and in front of their dwelling, a pole twenty or more feet in height,...