Van Husan v. Omaha Bridge & Terminal R. Co.

• Decision Date: 29 October 1902
• Citation: 92 N.W. 47,118 Iowa 366
• Parties: EDWARD VAN HUSEN et al, Appellants, v. THE OMAHA BRIDGE AND TERMINAL RAILWAY CO., Appellee
• Court: Iowa Supreme Court

92 N.W. 47

118 Iowa 366

EDWARD VAN HUSEN et al, Appellants, v. THE OMAHA BRIDGE AND TERMINAL RAILWAY CO., Appellee

Supreme Court of Iowa, Des Moines

October 29, 1902

Appeal from Pottawattamie District Court.--HON. N.W. MACY, Judge.

CONDEMNATION proceedings to assess the amount of damages to which plaintiffs are entitled by reason of the occupancy of a part of their lands by the defendant railway company. From the award made by the district court, plaintiffs appeal.--Affirmed.

MODIFIED and AFFIRMED.

Gains Kelby & Storey and Stone & Tinley for appellants.

Wharton & Baird and Harl & McCabe, for appellee.

OPINION

DEEMER, J.

Some time in the fall of the year 1889 the Union Pacific Railway Company commenced the construction of the roadbed in question. At that time the ownership of the land on which the railway was constructed, together with other lands in what is known as the "East Omaha Bottom," was in dispute. The Union Pacific Company, the East Omaha Land Company, and the Nebraska Ferry Company, and Anthony W. Street, its trustee, claimed ownership of portions of the land lying in that bottom; the boundaries of the respective tracks being unknown, and in dispute. Soon after the Union Pacific Company commenced the construction of its road, Street, trustee, commenced action for the purpose of enjoining the railway company from constructing its road over the land now in dispute, claiming that the same was owned by the Nebraska Ferry Company. At the same time an action was pending in the federal courts of Nebraska, in which Street was complainant, and the East Omaha Land Company and others were defendants, the purpose of which was to determine the boundary lines of the several tracts of land, and to quiet title thereto in the respective claimants. These suits were settled by an agreement signed by all the parties, in which the Union Pacific Company was named as party of the first part, the East Omaha Land Company as second, and the Nebraska Ferry Company as third party. The material parts of that agreement are as follows "Whereas, divers controversies and disputes have sprung up between the parties hereto, touching the title to the premises hereinafter described, and a certain bill in equity is pending in the United States circuit court for the district of Nebraska between the said Anthony W. Street, plaintiff, and the East Omaha Land Co., defendant, for the quieting of the title to certain of the said lands in the said plaintiff; and another action is pending in the district court of the state of Iowa for the county of Pottawattamie between the said Street, plaintiff, and the said Union Pacific Railway Company and others, defendants, to restrain the construction by said defendants of a railroad over and upon certain of said lands; and whereas, the said parties have agreed to settle and compromise their said differences as hereinafter set forth: Now, therefore, for the said purposes it is hereby agreed between the parties hereto as follows: (1) The said Street agrees to cause to be dismissed out of said two courts his said two actions above mentioned, and the said defendant in the said action secondly above entitled releasing him from all damages on account of the injunction allowed and issued therein. (2) The said second and third parties each for itself, and not one for the other, covenants and agrees to and with the said first party to make to it their several deeds of conveyance of all that certain piece or parcel of land described as follows, that is to say: [Here follows description of lands not in controversy in this action.] (3) The said first and second parties each for itself, and not one for the other, covenants and agrees to and with said third party to make to it, or to such person as it may appoint in that behalf, their several deeds of conveyance of all that certain piece or parcel of land described as follows: [Here follows a description of premises which include the land in question.] (4) The said second party covenants and agrees to and with said third parties to make to such parties as the said Council Bluffs and Nebraska Ferry Company may appoint in that behalf a deed of conveyance of all that certain piece or parcel of land described as follows: [Here follows description of premises not in controversy.] (5) The said third parties covenant and agree to and with said second party to make the said second party a deed of conveyance of all that certain piece or parcel of land described as follows: [Here follows a description of land not in controversy.]" Immediately after the execution of the agreement the Union Pacific Company proceeded with the construction of its roadbed, and completed the same on or about December, 1900. This roadbed consisted of an embankment some six feet high, thrown up from the adjacent soil; and the south side of the embankment was riprapped with stone, to protect it from the ravages of the Missouri river, which, as we understand it, parallels the right of way for nearly its entire length. This embankment also served as a levee or dyke, preventing the overflow of high water upon the lands owned by all of these parties, which are low and flat. The road was built primarily to furnish trackage and railway facilities for the East Omaha Land Company, which was endeavoring to sell its lands, and to establish manufactories thereon; and was built under some kind of a contract or arrangement, the exact purport of which is not in evidence. By the terms of the settlement to which we have already referred, the Union Pacific Company was to convey the land in controversy, which is occupied in part by the roadbed erected by that company, to the Nebraska Ferry Company or to A. W. Street as trustee; but for some reason, not fully explained, the deed was not made until December 10, 1892.

As the controlling points in the case turn upon the effect to be given this deed, we here set out the material parts thereof. After reciting the general facts set forth in the instrument of settlement, it recites: "That the said party of the first part (Union Pacific Railway Co.) in consideration of the sum of one dollar, to it in hand paid, the receipt whereof is hereby acknowledged, and in further consideration of the premises aforesaid, has granted, bargained, sold remised, and quitclaimed, and by these presents does grant, bargain, sell, remise, and quitclaim, unto the said party of the second part, his heirs and assigns, forever, the following described real estate: [Being land in controversy herein and other lands]; together with all and singular the hereditaments and appurtenances thereunto belonging; to have and to hold the above-described premises unto the said Anthony W. Street, trustee, his heirs and assigns, so that neither the said Union Pacific Railway Company, nor any person in its name and behalf, shall or will hereafter claim or demand any right or title to the said premises, or any part thereof, but that they, and everyone of them, shall, by these presents, be excluded, and forever barred. And the said party of the first part hereby specially covenants that the said premises are free from any incumbrance placed thereon by it, and it further specially covenants to warrant and defend the title to the same as against any and all persons claiming through or under it, or its successors or assigns,"--duly signed and acknowledged December 16, 1892. In the fall of 1892 plaintiffs began negotiations with Street and the ferry company for the purchase of the lands in controversy, with other lands, and on December 30th of that year acquired title thereto from the ferry company by a deed of general warranty. On January 12, 1893, Street also conveyed to the plaintiffs by a like character of deed; but both contained this exception: "Subject also to right of way, if any, over said premises, fifty feet wide, now occupied by the tracks of the Union Pacific Railway Co." The deed from the Union Pacific Railway Company was made while the negotiations were pending resulting in the plaintiffs' acquirement of title. It was procured by one John R. Webster, who represented the ferry company. Webster said, while on the witness stand, that he was endeavoring to clear up the title, and that plaintiffs would not buy the land unless the title was clear. The Union Pacific Company was then in possession of the part of the land covered by its roadbed and tracks, and Webster testified with reference thereto as follows: "At the time of the negotiations I went over the land with Mr. Van Husen, and this track with the embankment came up. There was some conversation between us with reference to the ownership of that right of way, and matters of that kind. I could not tell exactly what I said, but my recollection is that I did tell him that we could get a deed from the Union Pacific Railway Company with reference to that. I think I told him of the deed which was already drafted, but had not been executed. The contract for this deed from the Union Pacific had been made some time in December, 1889. The fact is, the Detroit people said, unless they got the right of way, they did not want to purchase. I don't think I can give the words we used, but the Detroit syndicate people, represented by Mr. Van Husan, would not make the purchase if the land was going to be divided by a track; and I was anxious, of course, to get something that would suit them, and get them to buy the land, because I was assisting Mr. Potter, and I may have said a good many things there that I forget now." He also testified, with reference to the exceptions in the deed from the Nebraska Ferry Company and A. W. Street, as follows: "I had some difficulty over that clause in those deeds, and I think I probably used the Union Pacific deed to satisfy the syndicate people...