The Merchants' Union Barb Wire Co. v. The Chicago, Burlington & Quincy R'Y Co.

• Decision Date: 29 October 1886
• Citation: 28 N.W. 494,70 Iowa 105
• Parties: THE MERCHANTS' UNION BARB WIRE CO. v. THE CHICAGO, BURLINGTON & QUINCY R'Y CO
• Court: Iowa Supreme Court

28 N.W. 494

70 Iowa 105

THE MERCHANTS' UNION BARB WIRE CO. v. THE CHICAGO, BURLINGTON & QUINCY R'Y CO

Supreme Court of Iowa, Des Moines

October 29, 1886

Appeal from Polk Circuit Court.

ACTION to recover damages for injuries sustained by reason of the construction by defendant of side tracks of its railroad upon portions of a street whereon plaintiff's lots abut, upon which its manufactory is situated. A demurrer to the answer of defendant was sustained, and from this judgment it appeals.

AFFIRMED.

Wright Cummins & Wright, for appellant.

Whiting S. Clark, for appellee.

OPINION

BECK, J.

I.

The defendant's answer shows that it has constructed and used two side tracks on the south side of Vine street, in the city of Des Moines, in front of plaintiff's premises. The most southerly was constructed in 1870; the other, since May 14 1874. It is further shown that in 1866 the right was granted to defendant by the city to construct and maintain its railroad track and side tracks upon Vine street, but requiring that, upon the part of the street whereon plaintiff's lots abut, the defendant shall build its track on the north side. The answer alleges that the more southerly of the two tracks was constructed by defendant pursuant to authority confirmed by a resolution of the city council passed in May, 1874, which was adopted upon the petition of certain owners of lots abutting upon the street but it is not averred that the owners of the lots upon which plaintiff's manufactory is situated united in the petition. It is shown by the answer that the resolution was passed without objection or dissent, but it was not read on three successive days, nor were the rules pertaining to the action of the council in passing ordinances suspended, and the records of the council do not show whether the yeas and nays were called upon the adoption of the resolution. The other track was laid under authority of a like resolution passed prior to 1874, which was adopted in the same manner pursued in the case of the other resolution. Other allegations of the answer need not be recited. To the counts of the answer setting up matters above recited, and pleading authority to build the side tracks under the resolution of the city council, the plaintiff demurred; and defendant appeals from an order sustaining the demurrer.

II. It will be observed that defendant claims the right to maintain side tracks under separate authority from the city council granted by resolutions. We will first proceed to inquire whether it was competent for the city council, under the facts of the case, to confer the authority by resolution, vote, or other action, not in the form of an ordinance, and not passed or had in the manner prescribed for adopting ordinances.

It is first insisted that the ordinance of 1866 granting the right of way to defendant expressly excludes it from occupying the south side of the street, and that the right to occupy that side could only be conferred by ordinance repealing or amending the prior ordinance. We need not determine whether that ordinance could be amended, repealed or suspended by resolution or vote of the city council. In our opinion, the ordinance simply grants the right of way in the north half of the street, and is not a restriction, in the nature of a prohibition, against the occupancy of the south side. That side was left by the ordinance just as the whole street was before the ordinance was passed. No consent was given to its use by the plaintiff. The ordinance, in express terms, reserves the power in the city to grant the right of way in the street to other railroads, if it should not interfere with the use of the tracks of defendant. It surely cannot be that the city intended more than a simple reservation of the south side of the street. No other conclusion can be fairly drawn from the language of the ordinance. The city, having reserved the south half of the street, could, of course, by subsequent action properly had, grant it to the defendant without any amendment, modification or repeal of the ordinance of 1866.

III. In our opinion the city may grant the right of way in the streets to a railroad company, which is simply permission to construct the railroad thereon, under prescribed restrictions, by resolution or vote duly recorded....