92 Iowa 755 | Iowa | 1894
The amount in controversy being less than one hundred dollars, the trial court certified the following questions of law, as being involved in the ease, upon which it is desirable to have the opinion of the court, to wit: “Mrst. The defendant having made and maintained an open, adequate crossing, with proper fences on each side of the same, for the accommodation and use of a person and his family, whose only means of reaching a public highway was over and through this crossing, and for others in going to and from their timber lands from the public highway, and the same having been maintained and used without objection in such a manner for about fifteen or twenty years, are they liable for the value of an animal killed upon such crossing, in the sum of double damages, under section 1289 of the Code of Iowa, for a want of a fence, no negligence being charged? Second. Can a railway company be held liable for not fencing its right of way, under section 1289, for the want of a fence, after persons had used and occupied an open crossing for fifteen or twenty years prior to the taking effect of the act of the Twenty-second General Assembly (chapter 30, section 3), and the [plaintiff’s] stock being killed on the twenty-seventh of May, 1892, on such crossing?”
Appellee has filed an amended abstract, setting forth all the testimony offered, and the complete record in the ease, and claims that the
At the conclusion of plaintiff’s testimony, defendant moved for a verdict upon the following grounds: “First. There was no evidence showing the railroad right of way was not fenced with a sufficient fence, or that the animal was in any manner injured or killed by reason of a want of such fence. Second. The evidence further establishes the fact that the animal was killed where a regular traveled road existed prior to the building of the railroad track, and yet exists, and at a point where there is a public crossing; and at no time within twenty-five years has the right of way fence been located by said company so as to obstruct travel at this point, and the company had no right to build their fence at that point, in fencing their right of way. And for ,the further reason this court has no jurisdiction to determine the question upon appeal, as to whether or not this is a highway by dedication, or by prescription by public use, as this case comes up for appeal from the justice court, which has no jurisdiction to try and determine the question of title to real estate.” This motion was overruled, and defendant excepted. The court thereupon instructed the jury to return a verdict for plaintiff. We do not think the questions certified arose in the case. They are, then, mere abstract- propositions of law, not necessary to the determination of the controversy, and we must decline to consider them. Parker v. Michaels, 74 Iowa, 209, 37 N. W. Rep. 161; Pickrell v. Hiatt, 81 Iowa, 537, 46 N. W. Rep. 1062. The appeal will be dismissed.