State ex rel. Patrick v. Chicago, Burlington & Quincy R'y Co.
| Decision Date | 18 December 1885 |
| Citation | 26 N.W. 37,68 Iowa 135 |
| Parties | THE STATE, EX REL. PATRICK, v. THE CHICAGO, BURLINGTON & QUINCY R'Y Co |
| Court | Iowa Supreme Court |
Appeal from Mills Circuit Court.
ACTION of mandamus to compel the defendant to construct and maintain a crossing at a place where its road is crossed by a highway. The relief asked by the plaintiff was granted, and the defendant appeals.
AFFIRMED.
Stone & Gilliland, for appellant.
Watkins Williams & Wright, for the State.
The highway in question in this case was established after the defendant had constructed its road, and the only question to be determined is whether the highway has been lawfully established; and this depends on the question whether the defendant was entitled to notice other than by publication of the proposed establishment of the highway. The defendant is a foreign corporation, but it has at all times had station or ticket agents within the county. The notice contemplated in section 936 of the Code was not served on any of the defendant's officers or agents, but was published as therein provided. Before a highway can be lawfully established that section provides: "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, in the manner provided for the services of original notices in actions at law, and such notice shall be published," etc.
The defendant owned its right of way, but it does not appear that its ownership is shown by or can be ascertained from the transfer-books in the auditor's office. Therefore the defendant, as owner, was not entitled to any other notice than was given. This was held in Wilson v. Hathaway 42 Iowa 173, as to a resident owner of an equitable title which was not shown by the transfer-books.
It is however, said that the defendant is in possession of its right of way, and is therefore an "occupier," as contemplated by the statute, and as such entitled to notice. In Alcott v. Acheson, 49 Iowa 569, it was held that a tenant, holding under a lease, who cultivated the land, and who did not reside thereon, but did reside in the county, was entitled to notice, because he was an "occupier." If, however, the tenant in that case had been a non-resident of the state, service of notice on him other than by publication would not have been required. It is...
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