Truesdale v. Jensen

• Decision Date: 22 May 1894
• Citation: 59 N.W. 47,91 Iowa 312
• Parties: TRUESDALE v. JENSEN.
• Court: Iowa Supreme Court

91 Iowa 312

59 N.W. 47

TRUESDALE

v.JENSEN.

Supreme Court of Iowa.

May 22, 1894.

Appeal from district court, Webster county; J. L. Stevens, Judge.

Action in equity to enjoin the defendant from leaving open the gates of a private railway crossing. The defendant asks that he be furnished with an open crossing. From the decree rendered after a hearing on the merits, both parties appeal, the appeal of plaintiff being first perfected. Affirmed on defendant's appeal. Reversed on plaintiff's appeal.R. M. Wright, for appellant.

C. H. Kelley, for appellee.

ROBINSON, J.

The plaintiff is the receiver of the Minneapolis & St. Louis Railway Company, and the defendant is the owner of a farm containing about 348 acres, through which the railway of that company is constructed. The general course of the railway across the farm is from the southwest to the northeast. The house, barn, and barn yards of the farm are located a short distance east of the railway, while west of it is the larger part of the farm, including nearly all of it which is cultivated. The railway right of way is fenced, and the portions of the farm separated by it are connected by three private crossings, which are closed with gates. The middle one of these is west of, and near, the house and barn, and is the one in controversy. The plaintiff claims that the defendant habitually leaves it open; that his cattle are frequently upon it; and that, when left open, it is dangerous to the stock, and to persons and property transported over the road; and that it should be kept closed, when not necessarily open for use. The defendant admits that he has at times left it open, temporarily, but alleges that it has not been left open by him more than his necessities, and a reasonable use of it, warranted. He further alleges, by way of counterclaim, that he is entitled to an open crossing, and that, in consideration of being permitted to use a portion of his land for snow fences, the plaintiff agreed to furnish him such a crossing. He asks that the plaintiff be required to construct cattle guards, and maintain an open crossing. The district court adjudged that neither party was entitled to relief, and taxed the costs to plaintiff.

1. The agreement for an open crossing, upon which the defendant relies, is not established by the evidence. He claims that the general road master of the plaintiff wrote a letter to a “foreman” named Smith, to tell defendant that, as there was so much trouble about the crossing gates, “we will put him in cattle guards for a fence for one winter,--snow fences.” The letter was not produced, and the road master denies having written it. Furthermore, it is shown that no authority was given to any one to make such an agreement, and that the defendant had given to the plaintiff the privilege of maintaining snow fences on his land, for which he was to pay a reasonable compensation. The claim of defendant that an open crossing is reasonably necessary to a proper use of his farm, and that plaintiff should therefore provide one, is entitled to more consideration. His building site was selected, and a part of his buildings were on it, before the railway was constructed. The highway nearest to his buildings is on the east side of his farm. He is prevented from reaching it, excepting in the winter season, by a stream which he can cross only when it is frozen. He can pass from his house to a highway, in ordinary times, only by crossing the railway of plaintiffs. When the crops are harvested, he permits his stock to run in the corn fields west of the railway, and it...