Watkins v. Iowa Cent. R. Co.

• Decision Date: 21 March 1904
• Citation: 98 N.W. 910,123 Iowa 390
• Parties: JOHN WATKINS, Appellee, v. THE IOWA CENTRAL RAILWAY COMPANY, Appellant, O. H. MOCK, Intervener
• Court: Iowa Supreme Court

98 N.W. 910

123 Iowa 390

JOHN WATKINS, Appellee, v. THE IOWA CENTRAL RAILWAY COMPANY, Appellant, O. H. MOCK, Intervener

Supreme Court of Iowa, Des Moines

March 21, 1904

Appeal from Monroe District Court.--HON. C. W. VERMILLION, Judge.

This is a proceeding to condemn a right of way, formerly owned by the Central Railroad of Iowa, over the northwest quarter of the northwest quarter of the southeast quarter of section 22 in a township in Monroe county, Iowa. It is averred in a paper filed by the Iowa Central Company that the owner of the said ten acres and the railway company could not agree upon the compensation to be paid therefor, and a sheriff's jury was asked to assess the damages. Thereupon a jury was appointed, which viewed the premises and reported as follows "We entered upon the ground owned by John Watkins, and described as follows: The northwest one-fourth of the northwest one-fourth of the southeast one-fourth of section 22, township 72, range 17 west, in Monroe county, Iowa, being the right of way formerly belonging to the Central Railroad of Iowa Company--and viewed the same for the purpose of ascertaining the damages that would be sustained by him aforesaid. We do not find that he or any of the prior owners of said land has ever paid back the damage which was originally paid by the corporation that first obtained the right of way. Guided by the law of this state in such cases made and provided, viz., Section 2016 of the Code of 1897, we do hereby assess the damage of the said property at three hundred dollars, to be disposed of as provided in said Section 2016 of the Code, and return this as our finding and verdict." Plaintiff, Watkins, was served with notice of the proceedings. Thereupon the railway company appealed to the district court, by serving notice upon the sheriff and the plaintiff herein. After the case reached the district court, and in January of the year 1899, defendant railway company filed an answer in which it denied that plaintiff was entitled to any compensation, for the reason that plaintiff's grantor, John Mock, conveyed the right of way to the Iowa Central Railroad Company, receiving full compensation therefor; that neither Mock nor his grantees ever refunded the consideration so received--and denied that plaintiff ever owned or had any interest in the right of way which the defendant sought to condemn, for the reason that his deed expressly excluded the right of way. Plaintiff thereupon filed a motion for a more specific statement, which was sustained; and on January 16, 1899, defendant filed an amendment setting forth more specifically the compensation received by Mock for his conveyance of the strip of land, and meeting the claim of abandonment made by the plaintiff. On January 21st plaintiff filed a demurrer to the answer as amended. This demurrer was withdrawn and another filed March 21st, which was submitted to the court and sustained on March 29th; the defendant duly excepting to the ruling. April 7 1899, one O. H. Mock intervened, claiming one-half of the compensation awarded or to be awarded on the trial.

Thereafter and on November 2, 1900, the defendant filed a substituted and amended answer, in which it denied that either the plaintiff or Mock, the intervener, was entitled to recover compensation for the right of way, for the reason that plaintiff never owned any part of the land covered thereby. It also pleaded that in the year 1869 John Mock, who was then the owner of the land, conveyed the premises sought to be condemned, with other real estate, for a valuable consideration, to the Iowa Central Railroad Company; a copy of the deed being attached to the answer. It averred that neither Mock, nor any of his grantees, had refunded the consideration received, and further stated that prior to 1870 the Iowa Central Railroad Company graded the roadbed in question, and that in 1869 the Central Railroad Company of Iowa acquired the right of way by purchase from the Iowa Central Railroad Company. It further averred that in 1879 the Moulton & Albia Railroad Company condemned the property as an abandoned right of way, and soon thereafter constructed a railroad thereon, which it operated until 1888, when it ceased to operate the same, and that in 1897 it removed the rails therefrom; and defendant averred that it was seeking to condemn an abandoned right of way and roadbed, that it had full title to the same, and that plaintiff had no interest therein. Thereupon plaintiff filed a motion for a more specific statement in this substituted answer, which was sustained; and defendant thereupon filed an amendment to its substituted answer, in which it pleaded the conveyance from Mock to it under date of March 29, 1869. It also pleaded that in the year 1869 the defendant became the owner of the strip of ground in fee simple, and that in the same year it graded a roadbed over said strip. It also pleaded (and we quote verbatim) the following: "The defendant did not state or intimate in said amended answer that either the said Iowa Central Railroad Company or the Central Railroad Company of Iowa ever laid the track or operated a railroad on that part of the right of way south of Albia; and now, in this amendment, the defendant does not wish to be understood as saying or intimating that either the two last named corporations have ever operated a line of railroad over or along the said strip of ground, or on any part of the road graded south of Albia, and will not claim that it has; and this it says in response to the first ground of this motion sustained by the court. As to the second ground of objection stated in the motion, the defendant states that, while the Albia & Moulton Railroad Company condemned the right of way from Albia south, it is not certain whether it embraced the strip of ground in question, but, at all events it did not lay down its track upon the road bed which had been constructed upon this particular strip of ground, and did not operate its road thereon. The defendant pleads that the Iowa Central Railroad Company by said conveyance became the full and unqualified owner of said strip of ground, by title in fee simple, and it is immaterial whether the operation of a line of railroad thereon has been abandoned; that, as it owned the land, it had the legal right to use it, or not, for railroad purposes. And the defendant further pleads that as the plaintiff's deed of conveyance limits his ownership to the northwest right of way line, and does not pretend to include any part of said strip of ground, he (the plaintiff) has not sustained any damage by the act of this defendant in taking or appropriating said strip of ground for its road and all this applies to the intervener." On August 22, 1902, plaintiff filed a motion to strike the substituted answer as amended, on the ground that it pleaded nothing save what appeared in the original answer, to which a demurrer had been sustained, and was a mere repetition of facts already pleaded in the answer which had been held insufficient. This motion was sustained, and the defendant excepted. Thereupon a trial was had to a jury, resulting in a verdict, and judgment for plaintiff in the sum of $ 400, on which judgment was rendered. Defendant appeals.

Reversed.

George W. Seevers and T. B. Perry for appellant.

Clarkson & Bates for appellee.

N. E. Kendall for intervener.

DEEMER C. J. WEAVER, J., MCCLAIN, J. (dissenting).

OPINION

DEEMER, C. J.

This long statement of the issues and proceedings seems necessary to an understanding of the exact points presented. Defendant complains of the ruling made March 29th on the plaintiff's demurrer to the defendant's answer and amendment thereto, and of the ruling striking its substituted answer and amendments thereto, pursuant to plaintiff's motion filed August 22, 1902. Plaintiff says that, by pleading over after the ruling on the demurrer, defendant waived any error in that ruling, and that the only question is the correctness of the ruling on the motion to strike, while the defendant contends that it has the right to be heard on both of these rulings. There is no doubt that, when one pleads over after an adverse ruling on a demurrer, he by so doing waives the particular error in that ruling, but such ruling does not, under our present practice, constitute an adjudication; and the same question may be presented in other ways, as by motion in arrest, to direct a verdict, objections to evidence, or in any other recognized mode. Pierson v. Ind. Dis., 106 Iowa 695, 77 N.W. 494; Frum v. Keeney, 109 Iowa 393, 80 N.W. 507; Geiser Mfg. Co. v. Krogman, 111 Iowa 503, 82 N.W. 938. However, if it affirmatively appears that the unsuccessful party did not waive the error in the ruling, this is sufficient. Denby v. Fie, 106 Iowa 299, 76 N.W. 702. As to the ruling on the motion to strike the only question to be considered is whether or not the substituted pleading is a mere repetition of the former one. If it is, then the ruling on the motion must be sustained. If it is not, then, no matter what the character of the new matter, the ruling must be reversed. McKee v. Ill. Central R. Co., 121 Iowa 550, 97 N.W. 69, and cases cited.

But these rules must not be so construed as to prevent a party from presenting his cause of action or defense to this court on appeal. If, after a ruling on a demurrer, a party excepting to that ruling pleads over a mere repetition of the matter theretofore stated in the pleading demurred to, he does not, of course, waive the error in the ruling on the demurrer. By so doing he manifestly does not intend to waive the error in the ruling on the demurrer, if any there be. Moreover, it would be little short of ridiculous to say that by repleading the same matter he is pleading over, and...