Vermilya v. Chi., M. & St. P. Ry. Co.

• Decision Date: 22 July 1885
• Citation: 66 Iowa 606,24 N.W. 234
• Parties: VERMILYA v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

66 Iowa 606

24 N.W. 234

VERMILYA

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

Filed July 22, 1885.

Appeal from Cerro Gordo circuit court.

Action to recover the value of certain sand taken by defendant from plaintiff's land, and for damages sustained by plaintiff by reason of a fire set out by an engine operated upon defendant's railroad. There was a judgment upon a verdict for plaintiff. Defendant appeals.George E. Clarke, for appellant, Chicago, M. & St. P. Ry. Co.

Stanbery & Clark, for appellee, George Vermilya.

BECK, C. J.

1. The evidence tended to prove that the sand for which recovery is sought in this action was taken from within the limits of defendant's right of way upon plaintiff's land. It was used in the construction of the engine-house, or round-house, located at the point where defendant's main line of road intersects the branch road passing over plaintiff's land, where the sand was procured. The right of way was by quitclaim deed granted by plaintiff to the Mason City & Minnesota Railway Company, under which defendants acquired it by grant. The language of the deed executed by plaintiff showing the subject conveyed is as follows: “We * * * do hereby grant, bargain, convey, and quitclaim to the Mason City & Minnesota Railway Company, for all purposes connected with the construction, use, and occupation of said railway, the right of way over and through the following described tract or parcel of land, (describing it;) hereby conveying, for the use above mentioned a strip of land one hundred feet in width across the premises aforesaid, to have its center in the center of the main railway track, on the line that is now located, and on which said railway is to be constructed, together with all necessary width for bermes.”

The circuit court held, in ruling upon a demurrer to defendant's answer, and in instruction to the jury, that defendant acquired no right under plaintiff's deed for the right of way to take and appropriate the sand for the purpose of building the round-house, and that for the value of the sand used for that purpose defendant is liable in this action. The decision of the court below upon this point of the case first demands consideration.

2. Plaintiff's deed conveys “the right of way” over the land described. The subject granted, the thing conveyed, is described by the words “right of way.” The words “for all purposes connected with the construction, use, and occupation of said railway,” indicate the purposes for which the right of way is to be used, thus limiting the grant. These purposes must be connected with the construction, use, and occupation of the land for the road contemplated,--not for any other road. The words “right of way” describe an easement upon plaintiff's land, under which the possession of the land may be held. This easement is to be held for all purposes connected with the construction, use, and occupation of said railway.” Now, the building of a round-house has no connection with the construction, use, or occupancy of a railway which could have been within the contemplation of the parties to the deed. It is true that every transaction of the corporation organized to construct, use, and operate a railway has some connection with the object of their organization. The building of cars, the erection of depots, warehouses, and the like, are all connected with the use of the railway in some degree. But it cannot be presumed that plaintiff had in contemplation matters of this kind. It would be absurd to suppose that plaintiff, in making the deed, had in contemplation that the easement--the possession of the land granted--would be held for the purpose of enabling defendant to build a round-house at Mason City, St. Paul, or in Dakota. If the easement extended to such work in Mason City, where the round-house was built, for which the sand was taken, it would extend to all like work upon defendant's road, without regard to the remoteness thereof. This court has held that the employment of one rendering services at a round-house, demanded by its proper use, is not connected with the use and operation of the railroad. Malone v. Burlington, C. R. & N. Ry. Co. 16 N. W. REP. 203.

Code, § 1241, provides that a railway corporation “may take and hold under the provisions of this chapter so much real estate as may be necessary for the location, construction, and convenient use of its railway, and may also take, remove, and use, for the construction and repair of said railway and its appurtenances, any earth, gravel, stone, timber, or other materials on or from the land so taken.” The chapter in which this section is found contains provisions for the condemnation of lands for use in the construction of railroads. Here we have, in effect, a statutory definition of the word “use” applied to railroads. We are here informed that the “convenient use” of a railroad does not mean the construction of appurtenances thereof. If it does have such meaning, then the grossest tautology is found in the language of the statute. The section, in the first place, provides that land may be taken for the “convenient use” of the railroad, and then declares that materials found upon the land may be used for the construction of appurtenances thereto. The term “convenient use” means the fit, appropriate, advantageous use. The adjective “convenient” does not limit the name “use” so as to make it apply to the actual running of trains upon the tracks. That is done by virtue of the meaning of the word itself. The use of a thing is not the use of an appurtenant thereto. The use of a thing may be convenient, and the use of its appurtenances may be convenient. We discover that the word “use,” occurring in the statute, has the same meaning as the same word found in the plaintiff's deed. But, in the statute, the use of railroad does not mean the use of its appurtenances. Hence, when plaintiff granted the right of way for the use of the railroad, he did not grant it for the uses of appurtenances. A round-house is an appurtenance of the railroad.

Defendant, it may be admitted, by proceeding under the statute to condemn the land, would have acquired the right to use the material found on the land for the purposes of constructing appurtenances to the railroad. But that course was not pursued, and it was content to accept a conveyance granting less. That plaintiff could grant less and defendant accept less, cannot be doubted. We must conclude that it was the intention of the parties that the deed of plaintiff should convey nothing more than the right of way for the use of the road, and not for the use of appurtenances thereof. When a right of way is acquired by ad quod damnum proceedings under the statute, the title of the timber, stone, sand, and the like, found upon the land, remains in the owner, and can be used by the corporation owning the railroad, only for purposes connected with its construction and use. See Preston v. Dubuque & P. R. Co. 11 Iowa, 15;Henry v. Dubuque & P. R. Co. 2 Iowa, 288.

3. The defendant, in the third count of its answer, pleaded a counter-claim against plaintiff for sand taken by him from the land occupied by defendant's right of way over his land. A demurrer to this count was rightly sustained. Defendant does not allege that plaintiff interfered with its use and occupancy of the land for the purposes for which it was granted,--the operation of the railroad. It simply complains of the taking of the sand, for the reason that it was conveyed by the plaintiff's deed. While it is alleged that the whole of the strip of land covered by the easement was necessary for the occupancy of defendant in the use of the road, it is not alleged that such use or occupancy was interfered with. We have seen that the deed of plaintiff did not convey the land further than was necessary for these purposes. Defendant held but an easement; the plaintiff retained title to the land subject to the easement. If the sand could be reserved without interfering with defendant's easement, plaintiff, as the owner of the fee, could do it. Defendant's counter-claim does not show that this could not be done. Upon this point see Preston v. Dubuque & P. Ry. Co. 11 Iowa, 15, and Henry v. Dubuque & P. Ry. Co. 2 Iowa, 288, above cited.

4. At the risk of repetition we will endeavor to state in different language and in another form our conclusions upon the points of the case above considered: (1) The deed under which defendant claims the land in controversy conveys to it an easement “for all purposes connected with the construction, use, and occupation of the railway.” (2) All other rights to and interest in the land, except this easement, were reserved by plaintiff. (3) The construction of a round-house is not one of the uses for which the land was conveyed, and defendant has no easement authorizing it to appropriate the land, or the sand found thereon, to such purposes. That the conveyance of the land “for the construction, use, and occupation of the railway” vests in defendant no such authority and right, is made plain by the consideration that in the statute authorizing the condemnation of land for the use of railways the word “use” can have no meaning or effect extending it so as to authorize the corporation acquiring rights thereunder to appropriate sand, timber, stone, or the like. The statute, (Code, § 1241,) in express language other than by the words used in the deed to defendant executed by plaintiff, empowers corporations, under the authority conferred upon them, to exercise the right of eminent domain; to appropriate for the construction and use of railways materials found upon land condemned by them. No right to make such appropriation is granted by the deed to defendant in this case. It was not, therefore, acquired by defendant. It is obvious that decisions involving the right of corporations acquired by virtue of condemnation of land, authorized by statute,conferring authority upon them...