State ex rel. Clark v. Iowa Cent. R. Co.

• Decision Date: 21 May 1894
• Citation: 91 Iowa 275,59 N.W. 35
• Parties: STATE EX REL. CLARK, COUNTY ATTORNEY, v. IOWA CENT. R. CO.
• Court: Iowa Supreme Court

91 Iowa 275

59 N.W. 35

STATE EX REL. CLARK, COUNTY ATTORNEY,

v.IOWA CENT. R. CO.

Supreme Court of Iowa.

May 21, 1894.

Appeal from district court, Cerro Gordo county; J. C. Sherwin, Judge.

Plaintiff alleges that in September, 1875, a highway known as “No. 145” was located across defendant's railway at a point named, that said highway had been opened to public travel, and that defendant refuses to construct a crossing where said highway crosses its track and right of way; wherefore plaintiff prays for a peremptory writ of mandamus commanding defendant to construct a crossing, as required by law. Defendant denies that a highway was ever established across its right of way at the point alleged, and alleges that, if it were established as alleged, it was never opened or traveled, and has been abandoned. The case was submitted upon an agreed statement of facts, and judgment entered for the plaintiff. Defendant appeals. The case is submitted on this appeal without any argument for appellee. Reversed.Anthony C. Daly, for appellant.

J. J. Clark, for appellee.

GIVEN, J.

We first inquire whether a highway was established as alleged. There is no question but that in September, 1875, the board of supervisors of Cerro Gordo county did confirm the location of a road known as “No. 145,” 66 feet in width, on a line crossing defendant's right of way and track at the point named, and that said highway was opened and traveled to within one-half mile on each side of said crossing, but has never been opened or traveled to or over the crossing. Defendant's contention is that the location of said road across its right of way is illegal, because no notice thereof was given to either the owner or occupier of the land within defendant's right of way included in said highway, as required by section 936 of the Code. Said section requires that a “notice shall be served on each owner or occupier of land lying in the proposed highway, or abutting thereon, as shown by the transfer books in the auditor's office, who resides in the county.” Said section also provides that such notice shall be published for four weeks in some newspaper, and that the notice shall give the names of the owners of the land through which the proposed road passes, as they appear upon the transfer books of the auditor's office. The title to the land under notice, as appears from the transfer books in the auditor's office, was, in 1875, in T. E. Kirtland and H. T. Rockwell, both then and ever...