83 Iowa 278 | Iowa | 1891
The material questions in the case are few, and, as we regard them, easy of solution. The plaintiff is not the owner of the street. The fee title is in the public, and, under the facts in this case, by the rule announced in Milburn v. City of Cedar Rapids, 12 Iowa, 246; Clinton v. C. R. & M. Ry.Co., 24 Iowa, 455; Slatter v. Des Moines Ry. Co., 29 Iowa, 148; and numerous other cases, the plaintiff could not recover damages. Presumably, in view of the fact that the fee title of the streets in nearly all the cities and towns of Iowa is in the public, and that the construction of railroad tracks in streets is in some cases attended with special injury and ■damage to the owners of lots abutting on such streets, the general assembly of this state, in 1873, enacted a statute providing that cities should have power “to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys and public places; but no railway track can thus be located and laid down until after the injury to property abutting upon the street, alley or public places upon which such 'railway track is proposed to be located and laid down has been ascertained and compensated for in the manner provided for taking private property for works of internal improvement in chapter ■4 of title 10 of the Code of 1873.” See Miller’s Code, •sec. 464.
It is contended by counsel for the appellant that this act removed all limitations upon the right of the . abutting owner of property tó recover damages for the use of a street by a railroad, and that his right to recover is as broad, complete and perfect as if he owned the
It is claimed that this instruction is erroneous, because it implies that the plaintiff may not be entitled to any damages. As we have said, the right to recover damages depends on the evidence in the case. By this part of the charge the jury were plainly directed to the very questions of fact which they were required to determine., and the facts and circumstances disclosed in evidence tending to establish damages-were plainly and •correctly stated. There was no error in this part of the charge of which the plaintiff has any just cause of ■complaint.
It is claimed that this instruction is grossly erroneous, and that it is plainly contrary to the rule of this court as announced in the case of McClean v. Chicago, I. & D. Ry. Co., 67 Iowa, 570. In that case defendant asked an instruction to be given to the jury, which is-substantially the same as the instruction now under-consideration. The court modified the instruction asked as follows: “But, if you should find that the occupation of the street by the defendant for right-of-way purposes depreciated the value of plaintiff’s property, then the depreciation of the value of the property from this cause would constitute such special or individual damages as to entitle him to recover the same.” The defendant in that case complained of the modification of the instruction as erroneous. It was held not to be error. Now, while it is true that in the case at bar the court did not, in the same instruction, state the-rule of the above modification, yet in other instructions,, and notably in the fifth, above quoted, the jury were plainly directed that the plaintiff was entitled to recover for any depreciation in the value of her property by reason of the laying down and operation of the track in the street. The court was not required to state all the-rules of law pertaining to the rights of the parties in one paragraph of the charge, nor is there any good reason why rules of law should be repeated in the-charge to the jury. There is no repugnance in the different paragraphs of the charge, when construed
IY. Taking the whole of .the instructions together, we think they were very favorable to the plaintiff. Indeed, -they were exceptional in this regard. The plain fact stands out all through the record that the plaintiff’s block was built upon the very line of the street, and large doors constructed in the side of the building for the purpose, in part at least, -of handling goods, and moving them to and from the cars on an adjacent railroad track. The plaintiff and her tenants procured the spur track to be laid for their convenience in handling goods, and complaint is now made because the spur track was taken up, and another laid down in its place. It ought to require a most convincing state of facts to show that any substantial damages resulted from the change. It is true the court instructed the jury that, if the spur track was laid by the permission of the plaintiff, there was no adverse right to maintain it; and the plaintiff was entitled to recover damages, if any were sustained by the laying and use of the defendant’s track, the same as though the spur track had not, prior to that time, been in existence. This instruction was as favorable to the plaintiff, if not more favorable, than she was entitled to, in view of the uses and purposes for which the brick block was designed; and yet, in the face of this and other instructions, in narrowing and. limiting the defense to the action the jury found a verdict against the plaintiff, which, adopting the instructions as the law of the case, is fully sustained by the evidence. The evidence abundantly shows that the property of the plaintiff was not depreciated in value in any amount whatever. It is true there is a conflict in the evidence on this question, but it appears without conflict that the rental value of the property was in no way affected by the acts complained of by the plaintiff. There are other questions of minor
It appears to üs, upon a careful examination of the whole record, that there is no error therein prejudicial to the plaintiff. Affibmed.