38 Iowa 182 | Iowa | 1874
— The petition alleges that the plaintiffs are corporations duly organized in this State, and own and operate a railroad over the defendant’s land, describing it; that before grading said railroad the defendant, with others, executed the following writing: “We, the undersigned, each agree to convey unto the Chicago & South-western Railway Company, or their assigns, the right of way, not exceeding one hundred feet in width, for a railroad over any lands owned by us in Davis County, Iowa; in consideration that said company or its assigns shall build a railroad from some point, on the Muscatine branch of the C., R. I. & P. Railroad, southwesterly through Davis county, via Drakeville; provided said railroad company shall provide suitable crossings for each of us owning lands on each side of said road. This shall be our consent to enter upon, make and complete said work on our land, provided a depot shall be built within one-half mile of Eloris. June 15, 1870.” This contract was duly stamped and signed by the defendant, Delany Swinney, but was not signed by his wife, the defendant, Davina Swinney. The petition also alleged that defendants were proceeding to assess damages by ad quod damnum.
The answer of the defendants admitted the execution of the contract, its performance, &c., by plaintiff, and their ad quod damnum proceedings; and averred that the land over which the right of way was taken is now, and for thirty years last past had been, the homestead of defendants. This fact was admitted by the plaintiff.
The cause was tried upon these pleadings and admissions; and thereon, as the respective counsel concede, only two questions arise for our determination.
Affirmed.