Wattemeyer v. Wis., I. & N. R. Co.

• Decision Date: 09 June 1887
• Citation: 71 Iowa 626,33 N.W. 140
• Parties: WATTEMEYER v. WISCONSIN, I. & N. R. CO.
• Court: Iowa Supreme Court

71 Iowa 626

33 N.W. 140

WATTEMEYER

v.WISCONSIN, I. & N. R. CO.

Supreme Court of Iowa.

June 9, 1887.

Appeal from district court, Hardin county.

The plaintiff averred in his petition that he was the unqualified owner of 160 acres of land, and that the defendant railway company condemned 100 feet in width through said land for right of way for its railroad; and that, in constructing the said railroad, defendant entered upon plaintiff's land on each side of said right of way, and took strips of land outside the right of way 50 feet wide, by 200 feet long, without any authority from plaintiff, and removed the earth from said strips without condemning the same, and destroyed a spring of water belonging to the plaintiff, and he claimed damages in the sum of $500. The defendant by its answer denied each and every allegation in the petition. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.Hubbard, Clark & Dawley, for appellant.

John H. Bradley and Sutton & Childs, for appellee.

ROTHROCK, J.

1. The plaintiff averred in his petition that he was the absolute owner of the land. His action was not brought to recover damages to a mere possessory right. The court instructed the jury that it was incumbent on him to prove that he was the owner of the land. The appellant insists that there was no proper evidence of ownership, and we think this position must be sustained. It is true, some of the witnesses, in giving their testimony, referred to the land as plaintiff's farm, but this was merely descriptive of the land. Indeed, there was no attempt on the part of the plaintiff to prove title in the ordinary and usual way. The proceedings in condemning the 100 feet in width were introduced in evidence, but were not admitted for the purpose of showing title in the plaintiff. Even if they were introduced for that purpose, they do not show title. The report of the commissioners shows that the damages awarded are to be paid to the owners of the land “as their interests may appear.” It is claimed by counsel for plaintiff that, the action being in trespass, possession was sufficient without proof of title. But the instruction given by the court to the jury was the law of the case, and under it the plaintiff was bound to show that he was the owner of the land; and we think this view of the case was correct, because the plaintiff sought a recovery not to a mere possessory right, but for a permanent injury to the freehold; and the court instructed the jury, upon this theory, that the taking of the strips of land on each side of the right of way was a permanent appropriation thereof, and the right of the defendant to fence the land thus appropriated is recognized in the fourth instruction. That an action of this kind, founded upon the ownership of the land, may be maintained, see O'Hagan v. Clinesmith, 24 Iowa, 251; Brown v. Bridges, 31 Iowa, 145; McCormick v. Railroad Co., 47 Iowa, 347.

2. The plaintiff described his land in his petition as being a tract of 160 acres. In his evidence he described it as a farm of 240 acres, and he was permitted, against the objection of the defendant, to show that the farm of 240 acres was damaged by the alleged trespass at a certain rate per acre. This was plainly erroneous. The plaintiff did not bring his action for damages done to a...