155 Iowa 51 | Iowa | 1912
In August of the year 1904, plaintiffs leased to George Simpson and Peter Reyolds the coal under about fifty-seven acres of land owned by them, located in the sduthwestern part of the city of Des Moines. This
The said party of the first part also grants to the said party of the second part a strip of surface for a right of way across the above described land for a railroad track to, the mine of the party of the second part, which the party of the second part expects to locate on the land of the T. E. Brown estate. The said party of the second part agrees to pay for the above considerations the sum of twelve and one' half (12%) cents per ton on all lump coal they mine from underneath said land and they further agree to pay to the said party of the first part the sum of $2.00 per acre per year as advance royalty from August 1, 1904, until they commence to mine coal from said premises, said advance royalty to apply on coal mined when said second party reaches said coal with their entries and driveways. . . . The said first party also agrees to permit the said second party to prospect for coal any time during the first six months after the date of this agreement and if they fail to find workable coal, then this lease shall have no further force or effect and in that event the said second party agrees to pay the said first party a reasonable price for the surface of the land taken up for a right of way. . . . This lease to continue for twenty (20) years, or until the workable coal is exhausted.
This lease was assigned to the Hollingsworth Coal Company, which sunk a shaft on land adjoining that of plaintiffs on the west, and commenced taking coal from under plaintiffs’ land some time in the year 1905, through the shaft just mentioned. The Hollingsworth Company assigned all its right, title, and interest in and to the right of way provided for in the lease to the Des Moines & Ft. Dodge Bailroad Company, and the railroad company agreed, as part consideration for the assignment to build a railway to the shaft. The exact provision with reference to this railway was as follows:
The said railroad company agrees to construct upon a right of way to be procured and furnished for that purpose
Pursuant to this agreement, the railway built a track over plaintiffs’ land, and also onto and upon the land of one Chas. Davis, which adjoined plaintiff’s land on the west. The railway track so constructed was used for the sole purpose of transporting coal from the shaft on the Chas. Davis land from the time of its construction down until the year 1910; and it is claimed that none of the parties to the original lease and none of the assignees thereof ever thought or understood that the right of way was other than a private one, created to facilitate the mining of coal from the plaintiffs’ lands and those immediately adjacent thereto. It appears that in securing this right of way the original lessees represented that they wished it for the purpose of hauling coal from the shaft to a connection with a railway to the east of plaintiffs’ land. The Iowa Portland Cement Company constructed a plant for the manufacture of cement, some time in the year 1909, upon some land southeast from that owned by plaintiffs, and in that year began the construction of a switch running east from and connecting with the coal road on plaintiffs’ land, and in the following year completed the same, so that it had a track leading from its works over the switch constructed by the railway to a junction with a railway owned by one of the defendants. This switch or track was constructed by the cement company under a contract with the Des Moines & Ft. Dodge Railroad Company, from, which we extract the following :
First. That the cement company shall locate, construct and maintain a single spur track from its said property and trackage thereon to connect with the said Hollingsworth spur track at the point indicated on the blue print attached hereto and made a part hereof, which connection shall be made under the supervision of the chief engineer of the railroad company and in the manner prescribed by the railroad company, and shall maintain said connecting spur track and all tracks located upon its property. The railroad company will maintain, and renew when necessary, all of said connecting track constructed upon its right of way, and will furnish all labor and material, including irack, ties, rails and fastenings, switch ties, switch points and fixtures, frogs and guard rails, foot blocking, switch stands and connecting rods, and the cement company agrees to pay the entire cost within thirty days after the receipt of a bill covering such maintenance and renewal of said connecting track.
Second. The railroad company may use the tracks of
Third. In order that the cement company may fulfill its obligation to the Chicago, Rock Island & Pacific Railway Co. in providing the switch or spur connection as above set forth, without the necessity for constructing any railroad between Valley Junction and its manufacturing plant, it is agreed between the parties hereto that the railroad company will permit the Chicago, Rock Island & Pacific Railway Co. to use its said track between Valley Junction and the track serving the factory of the cement company in such manner as to make full compliance on the part of the cement company with its agreement, as above set forth, with the Chicago, Rock Island & Pacific Railway Co. under regulations fixed' by the railroad company.
Fourth. In consideration of this concession by the railroad company the cement company agrees to pay to it in monthly installments a rental of two thousand five hundred dollars ($2,500) per annum, and a proportion of the maintenance charge based upon wheelage. The business handled by or for the Chicago, Rock Island & Pacific Railway Co. will be one of the wheelage items, and the business handled by the railroad company for itself or others will be the other factor, the railroad company having the exclusive right to use its track for switching, aside from the accommodation to be provided for the Chicago, Rock Island & Pacific Railway Co. as hereinbefore recited.
Fifth. If additions or betterments are made to the property of the railroad company on account of the use of said spur track, the actual cost of such betterments shall be certified to the cement company and the rental charge will be increased at the rate of five percent per annum on such expenditures.
Eight. That portion of this contract which refers to the use of the railroad company’s track by the Chicago, Rock Island & Pacific Railway Co. and the obligations of the cement company on that account, shall remain in force five years from this date, find thereafter until terminated by six months’ written notice given by either party hereto to the other; provided, however, that the railroad company
Should the cement company refuse to pay any bill for rental upon presentation, cease to operate its plant and said trackage for a period of six months, or refuse to pay bills for maintenance or renewal as hereinbefore provided, said connecting track may be removed by said railroad company, should it desire so to do, without damage or right of costs accruing to said cement company, notwithstanding anything to the contrary hereinbefore provided.
The following plat will indicate the location of the tracks and rights of way:
It was the intention of the defendant railroad companies and the cement company to use the original coal track for the purpose of conveying freight over it to the cement track, and, after this suit was brought and prior to the trial, it was so used, and car loads of rock and other material, for the use of the cement company, were carried over said tracts. It is claimed that numerous car loads of such materials were almost continuously left standing on the coal track, and were backed up and left standing on that track west of its junction with the cement track, making it inconvenient for plaintiffs to get from their house on the south .side of the coal track to the land on the other side of that track; that the trains running on the track for the use of the cement plant frightened plaintiffs’ stock; and that the cement switch'cut off plaintiffs’ access to that
We have passenger service each day between the cement plant and Valley Junction. Six trains a day each way. Some of our operatives live in Valley Junction and some in Des Moines. They pay fare. Some of the children of the employees go to school at Valley Junction, and use this passenger service morning and evening. They pay passenger fare. The freight traffic is confined entirely to the operation of the Rock Island Railway over the spur for freight traffic. We are not operating over the spur ourselves anything but passenger service. The use we have of it, by means of the arrangement with the Rock Island company, is they bring in all our raw material over that line and take out the finished product that is marketed on their lines or connecting lines. . . . The distance from our plant to Valley Junction is about a mile and three-fourths. To go around by Des Moines, it would be ten miles. The passenger trains I have referred to are handled by the cement company themselves. They were just inaugurated for the purpose of accommodating employees of the cement company, bringing them back and forth to their work. Some of the school children take advantage of the passenger trains incidentally. A great many of the miners use these trains. Any one can ride who pays fare. . . . Our employees who ride on these passenger trains buy tickets which cost them 3% or 3 1-3 cents for the trip one way, and tickets are sold to others at a fraction less than 5 cents, where they buy ten tickets for one way. The regular fare for one way is 5 cents.
II. The next question is; Have the defendants a right to use the entire spur track under the lease originally granted by plaintiffs to Simpson and Neynolds?
It is true that the lease does not specifically state what the track constructed upon the right of way therein granted was to be used for; but the oral testimony makes this plain, and this testimony was admissible under familiar rules. Thomas v. Wiggers, 41 Ill. 470; Landt v. Schneider, 31 Mont. 15 (77 Pac. 307); N. O. R. R. v. Darms, 39 La. Ann. 766 (2 South. 230); Sargent v. Adams, 3 Gray (Mass.) 72 (63 Am. Dec. 718); Bartels v. Brain, 13 Utah, 162 (44 Pac. 715). This lease did not, in our opinion, authorize the defendants, or any of them to convert the right of way and track therein provided for into a public railway, or authorize them to convert it into a line for the transportation of freight and passengers in general.
In Stretton v. Great Western & B. R. R., 40 L. J. Eq. 50, the court said: “With regard to what is said as to public interests, I am not inclined to listen to any suggestions of public interest as against private rights acquired in a lawful way. I do not think that the interest of the public in using something that is provided for their convenience is to be upheld at the price of saying that a person’s property is to be confiscated for that purpose. A man who comes to this court is entitled to have his rights ascertained and declared, however inconvenient it may be to third persons to whom it may be a convenience to have the use of his property.”
Our conclusion on the whole case is that the trial court was right in dismissing plaintiffs’ petition in so far as it related to the right of way secured by condemnation, but wrong in holding that the defendants, or any of them, had the right to use the spur track constructed under the lease for anything more than the hauling or mining of coal and the uses reasonably incident thereto.
The result is that the decree must be affirmed in part and reversed in part, and the cause is remanded for one in
Affirmed in part, and reversed in. part.