191 Iowa 1376 | Iowa | 1921
The question involved was the amount of damages suffered by plaintiff. By agreement between the parties, the right of ingress to. and egress from the ¿55-foot strip, upon plaintiff’s land abutting thereon, was agreed upon and surrendered, and the ease did not involve the rights of the defendant on the plaintiff’s land, except rights oh the 25-foot strip.
The defendant is a corporation, organized under Chapter 174, Acts of the Thirty-eighth General Assembly (Code Supplement, 1913, Sections 2120-n to 2120-t, inclusive), engaged in the manufacture, sale, and distribution for sale of electric current for light, power, and heating purposes. Defendant com
“To construct, reconstruct, use, maintain, and operate a high potential electric transmission line, together with the necessary guy wires qnd appurtenances of said line and together with the right of ingress and egress to said line, over and across the lands abutting upon said line for the distribution for sale of electric current for light, heat, and power purposes, * * * along and upon a strip of land 25 feet in width lying easterly of and abutting upon the easterly side of the right of way of the Chicago, Rock Island & Pacific Railway Company * * * over and across the lands hereinafter described, which lands are owned by the persons hereinafter described: [then follows the description of the plaintiff’s lands] owned in fee simple by John Draker and Carrie Draker, with approximately 15 poles and 4 guy wires located on said premises, the center line of said poles to be parallel to and not more than 3 feet removed from the easterly side of the Chicago, Rock Island & Pacific Railroad Company’s right of way running through said land from the said easterly side of said right of way.”
Pursuant to the franchise granted to it, the defendant proceeded under Section 2120-q, which authorizes:
“Any person or corporation having secured the franchise^ provided for in the preceding sections shall thereupon be vested with the right of eminent domain to such extent as may be necessary and as prescribed and approved by the commission, not exceeding 25 feet in width, to carry out the purposes of said,f ranchise. ” * N'
Plaintiff’s farm is crossed by the right of way of the Chicago, Rock Island & Pacific Railway Company, 100 feet wide, running approximately north and south. The 25-foot strip over which the defendant secured its rights lies immediately east of the railway company’s right of way, and extends for a distance of 124 rods, parallel with said right of way. The strip on which the easement is laid contains one and one-sixth acres of land.
Assignments of error Nos. 1 and 2 are directed to Instructions 1 and 4 given by the court. The court instructed the jury in substantially the language of Section 2120-t of the Supplement of 1913, that corporations operating the lines shall have a reasonable access to such transmission lines for the purpose of constructing, reconstructing, repairing, or locating the poles, wires, or other construction or devices used in and upon said transmission, but shall pay the owner of said land and the owner of the crops thereon, all the damages to said land or crops caused by entering, using, and occupying the land for such purposes, such damages, if any, to be paid annually at the end of the season; and instructed the jury, as to the measure of damages, that it should presume that “the defendant company will perform the duties imposed upon it, in construction and maintenance of its line, and if it destroys any crops growing on said premises, compensation therefor shall be rendered.” So that, in estimating damages, the jury should not take into account any damages which the plaintiff may have sustained by reason of the destruction of crops, nor should the jury anticipate future damages arising from the destruction of crops, nor damages to the land.
The major point that plaintiff makes is that, by postponing payment of compensation for damages to the crops on the 25-foot strip to await actual damage, Section 2120-t authorizes the taking of private property without first making just compensation, as required by Section 18, Article 1 of the Constitution; and alternately, that, if said Section 2120-t is not unconstitutional, the court erred in making it applicable to damages to crops on the 25-foot strip, plaintiff contending that said section refers only to the damages to crops located on property of plaintiff abutting on the 25-foot strip, caused by ingress to and egress from said strip. As stated above, we cannot agree with plaintiff’s contention that the section applies only to damages to crops on the property passed over, to get onto the 25-foot strip. The court was correct in its interpretation that it applied to the 25-foot strip.
Plaintiff’s theory in argument that the section is repugnant to the Constitution is, as we understand him, that damages for the right of way or easement condemned must be assessed once, for all. Plaintiff’s theory is that, while the defendant, by its franchise, does not acquire the fee title to the 25-foot strip, it does acquire the entire possession and control of it. Defendant’s theory of the statute is that only such interest in the 25-foot strip is acquired by it as is necessary for the purpose of erecting and maintaining its line; and that was the theory adopted by the trial court. Such theory seems to be borne out by the statutory provisions. Before such necessary interest in] the land can be acquired, a petition must be presented to the railroad commissioners, setting forth the manner, method, and specifications for construction of the line; and the statute then authorizes the commission to grant the application, either as a whole or in part, or upon such conditions as to terms and location as to the commission may seem right and just. Section! 2I20-n provides that: -J
*1381 ‘ ‘ The privilege granted by the commission shall be and constitute a franchise to operate and maintain the proposed transmission line, but all rights granted by said franchise shall be subject to the provisions of this act, and also to such regulations as the legislature may, from time to time, prescribe, either by direct legislative enactment or by and through the railroad commission, under the laws of Iowa now or hereafter in force. ’ ’
Defendant company procured its franchise in the manner^ provided by the statute, and it was granted the privilege to erect, maintain, and operate across the plaintiff’s farm approximately 15 poles and 4 guy wires, to be parallel to and' not more than 3 feet removed from the easterly side of the Chicago, Rods Island & Pacific Railway Company’s right of way running through said land, and the guy wires to be set in 8 feet from the easterly side of the right of way. Having acquired its franchise, with specifications for the construction of the line, the defendant invoked the provisions' of Section 2120-q, which provides:
“Any person or corporation having secured the franchise provided for in the preceding sections shall thereupon be vested with the right of eminent domain to such extent as may be necessary, and as prescribed and approved by the commission, not exceeding 25 feet in width, to carry out the purposes of said franchise. ’ ’
Plaintiff’s claims in his assignments of error are, broadly speaking, except assignments referring to particular matters which will hereinafter be referred to, that the court assumed that there was not a full taking by the defendant of the 25-foot strip, but that the defendant acquired only part possession of it, and that such possession as the defendant did not acquire was left in the plaintiff. Plaintiff argues that the defendant, having condemned the strip, may use all of it in any way it deems necessary, not only for the original construction of the line, but for reconstruction of its line or enlarging of the same; that there was an actual, physical, and complete taking of the entire 25-foot strip; and that the jury should have been so instructed. Plaintiff contends that, after the condemnation was made, he^ had no greater rights in the 25-foot strip than he would have, had it been a railroad company that condemned it, and the strip
The case was tried on the theory that the plaintiff had a right to raise crops upon this 25-foot strip, and make any other use of it he pleased, not in disturbance of defendant’s franchise privilege. Plaintiff’s main criticism of the court’s rulings and instructions is against such theory, plaintiff insisting that the defendant acquires full possession and use of the 25-foot strip, all rights and interests therein except the fee, and that plaintiff is entitled to compensation accordingly. We think that the
Plaintiff assigns as error that the court did not specifically tell the jury not to consider benefits following from the erection of the line. Upon examination of the record, we find that the court did, in Instruction No. 5, and also in Instruction No. 10, specifically tell the jury “not to consider benefits, if any, to said real estate by the erection of said line, ’ ’ in considering and arriving at the damages, and to ‘ ‘ exclude any benefits that may accrue to the plaintiff by reason of the erection and maintenance of said line. ’ ’
“After the appeal was taken, the defendant filed in the circuit court an offer to confess judgment for the sum of $350, pursuant to the provisions of Section 3404 of the Revision. The plaintiff, upon the trial, having failed to recover as much as was thus offered to be confessed, the court taxed to him the*1386 costs which accrued subsequently to the offer. Appellant claims that the appeal was not an action for the recovery of money, in such sense as to be governed by the provisions of Section 3404. This position we believe to be unfounded. The damages had^ been assessed by the- commissioners, and the amount awarded paid to the sheriff. By such payment, the right of the defendant to the way over plaintiff’s premises was established.' The/ right was not suspended by the appeal. * * * The action was for the recovery of money, and it falls within the spirit of the provisions of Section 3404. It would too much narrow this statute to put upon it the construction asked by appellant. The objects of the statute are to encourage settlements of disputes, put an end to litigation, and prevent the accumulation of costs, and it should receive a liberal construction in furtherance of these objects.”
We have not discussed plaintiff’s assignments of error seriatim, but we have considered and discussed all questions involved in them.
We find no reversible errors in the rulings of the court or in the instructions. The judgment of the trial court is affirmed. ■ — Affirmed.