Vandewater v. The Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 22 June 1915
• Docket Number: 29854
• Citation: 153 N.W. 190,170 Iowa 687
• Parties: HENRY VANDEWATER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

153 N.W. 190

170 Iowa 687

HENRY VANDEWATER, Appellee, v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant

No. 29854

Supreme Court of Iowa, Des Moines

June 22, 1915

Appeal from Adair District Court.--HON. W. H. FAHEY, Judge.

ACTION to quiet title to land taken in condemnation proceedings for railway right of way, the plaintiff contending that the defendant had abandoned all right to the condemned land under the provisions of Sec. 2015 of the Code of 1897. Decree for the plaintiff. Defendant appeals.

Affirmed.

H. J Chapman, F. W. Sargent, and Robert J. Bannister, for appellant.

Musmaker & Williamson, for appellee.

GAYNOR J. LADD, WEAVER, EVANS and PRESTON, JJ., concur. DEEMER, C J., SALINGER, J., (dissenting).

OPINION

GAYNOR, J.

This is an action in equity to quiet title to a piece of land in Adair county. The plaintiff claims to be the owner of this land and alleges that the defendant company makes some claim to it adverse to the plaintiff; that whatever interest defendant may have had in the land, its right to assert an interest is now barred by virtue of Sec. 2015 of the Code of Iowa. Plaintiff claims that he is the owner of quite a large tract of land; that in the year 1903, the defendant company caused a strip one hundred feet wide across plaintiff's farm to be condemned as a right of way for a line of railroad from Winterset to Greenfield, and that the work of constructing the road was commenced immediately after the condemnation, but was abandoned in the year 1903; that the road was never finished, used, or operated, and therefore the title of the railroad company acquired under such condemnation proceedings has been lost, and the title has reverted to the plaintiff. The defendant first assailed the petition by demurrer. This being overruled, the defendant answered, setting up that the plaintiff had never been disturbed in his possession; that the construction of the road had never been commenced over and across plaintiff's land; that, therefore, the statute of limitations had not commenced to run; that the plaintiff had been paid in full for the right of way, and never returned or offered to return the money received for it; and that there was no equity in plaintiff's claim. Upon these issues, the cause was tried to the court, a decree entered for the plaintiff, quieting title as prayed.

It appears without dispute that the defendant company acquired a right to the piece of land in controversy, through the exercise of the power of eminent domain; that the land in controversy was condemned by proper proceedings for the use of the railroad company for the building of a line of railway between Winterset and Greenfield; that the defendant paid to the plaintiff the full amount of the damages awarded. It appears that, after the defendant's right to proceed with the building and construction of the railroad had been ascertained and determined, and the damages paid, the defendant commenced the construction of the road between. Winterset and plaintiff's farm, and did work upon the road, in the way of construction, up to within about two miles of the land in controversy; that it also began the construction and building of the roadbed between Greenfield and plaintiff's land, and within about a mile of the land in controversy. Between plaintiff's farm and Winterset, there was about 10 miles of grading and work done in preparing the roadbed. There was no grading and no work done on plaintiff's land, except that in the line of the right of way extending over plaintiff's land, the defendant had put stakes marking the right of way and fixing the grades. The land in question is about one and one-half acres. The biggest part of the road between Winterset and the land in controversy has been graded within two miles of plaintiff's land. Considerable grading had been done between Greenfield and plaintiff's land, the exact amount of which does not appear, but it did not reach within a mile from plaintiff's land. In the fall of 1903, the railway company quit the construction of the road from Winterset to Greenfield, and later gathered up all their material on the right of way used for construction purposes, and hauled the same away, quit the construction of the road and never have finished or used the same for railway purposes since 1903; that no part of the contemplated railroad from Winterset to Greenfield was ever used or operated.

Defendant presents three propositions for our consideration which it claims should be answered in the affirmative, and, being so answered, work a reversal of this case: First. There can be no abandonment where there has been no commencement of construction. Second. A part of a line of road can be abandoned without affecting other parts. Third. The plaintiff has never been disturbed in his possession.

Defendant says the construction of the road never having been commenced, the eight-year period for reversion does not apply. The eight-year limitation which works a reversion does not commence to run until after the construction of the road has been commenced and then abandoned.

The first question asked by appellant is, Can there be an abandonment of right of way when nothing has ever been done to take possession? and says, "This involves the further question of when, if there be an abandonment, the statutory eight-year period begins to run, and this in turn depends upon the meaning of the words, 'when construction is commenced.'" This, the defendant says, is the sole question presented by this appeal in its last analysis.

The right of eminent domain is a right exclusively vested in the sovereign power. Private property can only be taken for public use, and it must appear affirmatively, before private property of an individual can be taken against his will, that the use to which it is put is a public use.

Sec. 1995 gives to railway corporations the right to take and hold so much real estate as may be necessary for the location and construction or convenient use of its railways. This right is granted it by the state, and it is granted upon the theory that railway corporations are quasi public utilities; that the construction of these roads is for the convenience and welfare of the public. The right delegated is the right to take private property and hold it for a public use, and the companies are subject to state control under proper legislation. The right to take and the right to hold must depend upon the initial fact that the property is taken or held for public use, and not for private use, although there may be private gain in the operation of the road itself.

Sec. 2015 of the Code provides:

"Where a railway constructed in whole or in part has ceased to be operated for more than five years; or where the construction of a railway has been commenced and work on the same has ceased and has not, in good faith, been resumed for more than five years, and remains unfinished; or where any portion of any such railway has not been operated for four consecutive years, and the rails and rolling stock have been wholly removed therefrom; it shall be treated as abandoned, and all rights of the person or corporation constructing or operating any such railway, over so much as remains unfinished or from which the rails and rolling stock have been wholly removed, may be entered upon and appropriated as provided in the next section. If the railway or any part thereof shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased, and has not been in good faith resumed for eight years, the right of way, including the roadbed, shall revert to the owner of the land from which said right of way was taken."

Sec. 2016 provides:

"In case of abandonment, as provided in the preceding section, any other corporation may enter upon such abandoned work, or any part thereof, and acquire the right of way over the same, and the right to any unfinished work or grading found thereon, and the title thereto, by proceeding as near as may be in the manner provided in this chapter; but parties who have previously received compensation in any form for the right of way on the line of such abandoned railway, which has not been refunded by them, shall not be permitted to recover the second time. The value of such roadbed and right of way, excluding the work done thereon, when taken for a new company, shall be assessed for the benefit of the former company or its legal representative."

As we understand and interpret these statutes, the first provisions of Sec. 2015 may be divided as follows: Where a railway, constructed in whole or in part, has ceased to be operated for more than five years, the right of the party condemning it for a public use, and the rights acquired to construct a railroad for a public use, are to be treated as abandoned as to that company; and this is true where the construction of the road has been commenced, and work on the same has ceased, and has not in good faith been resumed for more than five years and remains unfinished, or where any portion of such railway has not been operated for four consecutive years, and the rails and rolling stock have been wholly removed therefrom.

The right of a railroad company to take private property rests upon the thought that the taking is for a public use, and is to be devoted to a public use. The mere taking for a public use serves no public purpose. The public is served when it is devoted to the use on which the right to take depends. When the right to take for a public use is given, the obligation to devote...