Barney v. Keokuk
2 F. Cas. 898
U.S. Cir. Ct.
1876
Check Treatment
DILLON, Circuit Judge,

(LOVE, District Judge, concurring,) announced that the court had reached the following conclusions:

1. There was no completed statutory dedication of Water street under the town plat act of 1839, prior to the decree of partition, for the reason, among others, that all of the proprietors, i. e., the half-breed owners and their grantees, did not join in making a plat or in selling lots according to the Galland or other plat. What was done prior to the decree, was at most a common law dedication by those who platted or recognized the plat, and it was. therefore, competent for the decree of partition to provide, as it did, that *900"lots on Water street should include all the land in front of the lots to the Mississippi river.” This seems to have been the accepted view of the question. Milburn v. City of Cedar Rapids, 12 Iowa, 246; Haight v. Keokuk, 4 Iowa, 199. This leaves the fee of the land in Water street in the adjoining lot owners, including the plaintiff, subject to the rights of the public.

NOTE, [from original report.] The judgment in this case was affirmed, [by the supreme court,] on all points, at the October term, 1876. [Barney v. Keokuk, 94 U. S. 324.] Mr. Justice Bradley, delivering the opinion of the supreme court, makes this important statement concerning a distinction which has often been made the basis of measuring the extent of the rights of the abutting proprietors: “On the general question as to the rights of the public in a city street, we cannot see any material difference in principle with regard to the extent of those rights, whether the fee is in the public, or in the adjacent land owner, or in some third person.” In view of the facts of the case, this observation cannot fairly be considered as obiter, for the plaintiff’s case essentially rested upon the proposition that he was the owner of the fee of the street in front of his lots, and that this gave him the right to recover—a right which it was clear, under the laws of Iowa, he did not otherwise possess. But whether the principle stated in the above extract was actually in judgment or not, it is the sound doctrine as applied to streets in cities and incorporated places, and will, eventually, be acknowledged as such, wherever the legislative will is silent and the courts are not tied down by previous decisions. In St. Paul & P. R. Co. v. Schurmeier, 7 Wall. [74 U. S.] 272, (which, for a better understanding of it, should be read in connection with the same case below,—10 Minn. 82, [Gil. 59,]—which was similar to the principal case» in all essential respects, a different result was reached. The supreme court of Minnesota held that the use of the “landing” and streets by the railway company was an additional servitude, of which the adjoining lot owner could not be deprived without compensation to him; and Mr. Justice Clifford, in the concluding part of his opinion, [Railroad Co. v. Schurmeier,]—7 Wall. [74 U. S.] 289,—seems to assent to the correctness of this view. In Schurmeier’s Case, the result was that the railroad company was enjoined, at his instance, from constructing its road on the landing and streets in front of his lots. But in Barney’s Case the railroad company was held to have the right thus to use the street. These opposite results, under statutes substantially the same, are in consequence of the supreme court of the United States adopting in each case, as a rule of decision, the conflicting construction of the state legislation by the supreme courts of Minnesota and Iowa.

2. The additional ground made by filling in Water street by the city, outside of the original water line, partakes of the same character as the original street. The fee of the newly made ground in front of the plaintiff’s lot is, therefore, in the plaintiff, but it is subject to the same public uses as the original street. Haight v. Keokuk, 4 Iowa, 199, 214; Wood v. San Francisco, 4 Cal. 190; New Orleans v. U. S., 10 Pet. [35 U. S.] 662.

3. Under the legislation of Iowa, as construed by the supreme court of the state, railroad companies, certainly with the assent of the municipal authorities, have the right to lay down their tracks in the streets of a city, whether they were dedicated under the statute or as at common law—that is, whether the fee be in the city or in the adjoining proprietor. The cases in relation to railway tracks in common highways, and those relating to railways in streets in Dubuque and Burlington, establish this. Milburn v. City of Cedar Rapids, 12 Iowa, 249; Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455; Tomlin v. Dubuque, B. & M. R. Co., 32 Iowa, 106; Chicago, N. & S. R. Co. v. Newton, 36 Iowa, 299; Cook v. Burlington, 36 Iowa, 357; Clinton v. Clinton & L. H. Ry. Co., 37 Iowa, 61; Ingram v. Chicago, D. & M. R. Co., 38 Iowa, 669. The court should adopt as a rule of decision, on such a question, the exposition of the state statutes by the supreme court of the state. Suydam v. Williamson, 24 How. [65 U. S.] 427; Leffingwell v. Warren, 2 Black, [67 U. S.] 599, 603; Christy vPridgeon, 4 Wall. [71 U. S.] 196; Nichol v. Levy, 5 Wall. [72 U. S.] 433; Shipp v. Miller, 2 Wheat. [15 U. S.] 316; Jackson v. Chew, 12 Wheat. [25 U. S.] 162; Swift v. Tyson, 16 Pet. [41 U. S.] 17.

4. This, however, does not give the railway company, even with the assent of the municipality, the right to erect a permanent and substantial depot building in the street. The right of way act of 1853 has never been thus extended by any judicial exposition of the state supreme court, nor, in our judgment, ought it to be, at least in cases where the fee is in the abutting lot owners.

5. In view of the location and situation of Water street, and the presumed intention of the dedication thereof to the public, and guided by the opinion of the supreme court of the state in this regard, in Haight v. Keokuk, supra, and the power of the city as to wharves, 'and the use of Water street for that purpose, given by the act of 1853, Water street may be used for levee and wharf purposes under municipal management and control. The building erected by the packet company, under the contract with the city of March 28, 1870, for the purposes therein mentioned, for the receipt and temporary shelter and storage of goods, etc., subject to municipal control, is a reasonable use of Water street as a wharf or levee as incidental to the requirements of navigation and shipping, and does not infringe the plaintiff’s rights. Illinois & St. L. R., etc., Co. v. St. Louis, [Case No. 7,007.]

6. We have some doubt as to the right to maintain ejectment in such a case as this, but, under the practice in this state, we can adjudge the right even though we could not issue a writ of possession. The plaintiff may take a judgment as respects the railway depot building in such form as he prefers. Judgment accordingly.