72 Iowa 426 | Iowa | 1887
I. The two causes were heard and determined in the eourt below upon the same evidence, and they are presented in this court upon one abstract, and upon the same arguments. The ultimate question involved in both cases is, have the plaintiffs such a right to the land upon which the brick building is in course of erection as to entitle
It appears from the evidence that the railroad now owned by the Chicago, Rock Island & Pacific Railroad Company was constructed in 1859 or 1860, and that the road now belonging to the Chicago, Burlington & Quincy Company was built in I860. The land in controversy is situated at the city of Ottumwa, on the Res Moines river. The railroads were constructed across a bend in the river, upon land which was below ordinary high water mark. The defendants are owners of the land which was bounded by the river at the point opposite to the lines of railroad. The Chicago, Rock Island & Pacific road was built next to the shore of the rivei’, and the other road further out in the stream. The lines were practically parallel with each other, and about eighty feet apart. The land being below ordinary high water mark, it was necessary to raise embankments upon which to lay the tracks. These embankments were from sixteen to eighteen feet in height, and fourteen or fifteen feet wide on top, with a width of base of from sixty-three to sixty-eight feet. These figures may not be entirely accurate, and there is quite a controversy between the parties as to whether the bases of the two embankments met and overlapped each other. We do not regard this as an important question in the case, because whether the embankments covered the whole of the intervening space or not does not appear to us to be a controlling feature of the case.
The brick building, the subject of the controversy, is situated between the two railroads, and within a few feet of the •tracks of the respective roads. It may not be that these tracks are as close to each other as those originally laid. Both roads have side tracks which have been laid since the original embankments were made, but this fact we regard as of no importance in determining the rights of the parties. We think that if it be held that the plaintiffs had the right to appropriate the land, and construct their roads upon it,
In the case of Tomlin v. Railroad Co., supra, the defendant constructed its railroad along the Mississippi river, below ordinary high-water mark. Tomlin, the riparian proprietor, claimed that he was entitled to damages by reason of the construction of the road. It was held that he had no cause of action. The decision was based upon the idea that the railroad was constructed under legislative authority. Ibis true, as claimed by counsel for appellant, that the section of the statute above cited is not quoted in the opinion. But, as there was no other act of the legislature then in force granting that right, this provision of the statute must have been in the mind of the court. That such was the fact is recognized in the case of Renwick v. D. & N. W. R’y Co., 49 Iowa, 664.
It appears to us that there can be no doubt that the cited statute authorized the construction of the plaintiffs’ roads, and that they acquired the right thereunder to hold and possess at least the full width of land which they actually appropriated by their embankments, as against all claims of the owners of land bounded by the river.
IY. It is farther claimed that injunction is not the proper remedy ; that the action should have been at law, for damages. We do not think this position is well taken. There can be no doubt that equity will enjoin encroachments upon land by making excavations, erecting permanent buildings, and the like.
In our opinion the injunction was rightly granted.
AFFIRMED.