39 Iowa 23 | Iowa | 1874
I. The plaintiffs are the owners of about five hundred and thirty acres of land, bordering on the Mississippi river nearly tliree-fourths of a mile, and extending both above
The defendant’s right of way and road bed extend along the entire frontage of plaintiffs’ land, and just upon the margin of the river at high water mark, and upon the plaintiffs’ land. At the crossing of the creek, near its mouth, the defendant used the wall which had been before built by plaintiffs, after making some alterations therein, for the purpose of resting thereon, as an abutment, one end of its bridge across the creek. The right of way runs very near one corner of the warehouse, but does not interfere with it.
' It was error to refuse the instruction asked, and also to give the other in its stead. The inquiry in such cases is, always,
II. The defendant also asked the following instruction, which was refused: “ If you find from the evidence that the road leading from the Gear ferry, past the war-ehouse to the Tete des Morts creek, had been used by the public as a public highway for more than ten years prior to its obstruction by the railroad company, with the knowledge, consent and.permission of plaintiffs, such use amounts to a dedication of the same to, the public as a highway, and the obstruction of the same by the railroad company cannot be.recovered for in this proceeding.”
III. If the way was but a private road, the damages resulting from its occupancy might be recovered; but not necessarily what it would cost to build another road, as the court instructed, in the second instruction asked by plaintiffs.
Eeversed.