75 Iowa 526 | Iowa | 1888
— On the thirty-first day of October, 1860, Solomon Fernow, who was then the owner of one hundred and sixty acres of land, by his deed, duly executed and acknowledged, granted the right of way through said land for a railroad to the Dubuque, Marion & Western Railway Company. A railroad was constructed upon said right of way; and it was operated until some time in the month of November, 1878, when the track was taken up by the defendant as the successor in interest of the Dubuque, Marion & Western Railway Company, and no trains of cars were run upon said right of way until about July or August, 1886. The right of way was fenced by the railroad company. The plaintiff became the owner of the land as an heir of Solomon Fernow, deceased, and by conveyance from his co-heirs. After the track was removed, he entered upon the land, removed the railroad fences, and built fences across the right of way. These acts were done without authority from the railroad company. In July or August, 1886, the defendant took down cross-fences, and laid down a railroad track, and run trains of cars thereon, and erected right of way fences on each side of the road. These are the acts complained of by the plaintiff in his original petition, which was filed on the twenty-eighth day of July, 1886, and within eight years after the track was taken up and removed by the defendant.
The district court appears to have been of opinion that the defendant was not a trespasser by its reentry upon the land, because of the provisions of section 1260 of the Code, by which, if a right of way “shall not be
Aeeirmed.