117 Iowa 278 | Iowa | 1902
The second count of the petition is based on section. 2015 of the Gode, which is as follows: “If a railway or any part thereof shall not be used or operated for a period of eight years, or if its construction having been commenced, work on the same has ceased and has not been in good faith resumed for eight years, the right of way including the roadbed, shall revert to the owner of the land over which said right of way was taken.” And the issue under this count was submitted to the jury. What we have already said as to the use and operation of a railroad necessary to prevent a forfeiture applies as well to this branch of the case, and answers the contention of the defendant that this issue was improperly submitted to the jury. That-the northern part of this spur track may have been used and operated as roads usually are is not decisive, of the-claim of the plaintiff that it was abandoned through her premises, and we think there is sufficient evidence that-this part thereof was not so used or operated to take the case to the-jury, and that there was no error in so submitting it. In Fernow v. Railway Co., 75 Iowa, 526, it is held that nothing less than nonuser for a period of eight years will create an abandonment under the statute, and it there conclusively appears that within the eight-year period the-company resumed the use of its right of way. The question of the character of such use was not in the case.
There was no error in the seventh instruction given by the court, nor in refusing the tenth asked by the defendant, for reasons which we have heretofore given. Nor was there reversible error in refusing the fifth instruction asked by the defendant. The special interrogatories asked by the defendant were properly refused, because none of them called for an ultimate fact in the case. Morbey v. Railway Company, 116 Iowa, 84.
The judgment is abwirmeb.