37 Iowa 119 | Iowa | 1873
I. Defendant urges that by the proceedings for the condemnation of right of way, it is discharged from all obligations under the deed. Without this deed the defendant would have been a trespasser when it entered upon the plaintiff’s premises to construct its road. Under this deed the right of entry was acquired and the road was constructed, and had been operated from November, 1866, until August, 1867, before the right of way proceedings were instituted. Under it defendant acquired the right to occupy a strip of ground thirty feet in width through plaintiff’s premises. The acceptance of this with its conditions, and the subsequent entering upon and occupancy of the premises conveyed, amounted to an agreement upon the part of defendant to perform the conditions
It could not, therefore, ignore the deed and the rights thereby acquired, and proceed to an assessment of damages for occupying property which belonged to itself. The only reasonable construction which can be placed upon this assessment is that it applied only to the strip thirty-five feet in width on each side of the land conveyed by plaintiff, and necessary in connection therewith to make up the one hundred feet desired.
This is all that could, under the circumstances, have been properly assessed by the commissioners, and it is all that, as shown by the parol evidence introduced, was in fact assessed.
We feel well satisfied, therefore, that the only effect of the right of way proceedings was to vest in defendant the right to use a wider strip of land through the plaintiff’s premises, and that it does not release defendant from any obligation imposed by the acceptance of the deed, and the benefits it conferred.
II. By the acceptance of the deed and the occupancy and use of the premises conveyed, defendant undertook to make and keep in good repair two causeways or other adequate means of crossing the road, if the plaintiff should require two.
Section 1329 of the Revision provides that “ when any person owns land on both sides of any railroad, the corporation
The language of the deed is the same, except that, in consideration of giving the right of way, plaintiff has the option to require two crossings. These crossings are to be of the kind recognized in section 1329, that is they are to be causeways, which the statute regards as adequate crossings, or other adequate crossings.
A causeway is defined by Webster to be a way raised above the natural level of the ground, by stones, earth, timber fascines, etc. As applied to a railroad it must mean a way raised above the road. A way so raised and properly constructed the law recognizes as adequate. But the law nowhere defines what constitutes the other adequate crossings which the statute authorizes, nor has it been determined, so far as we can discover, by judicial construction. The case of Bartlett v. Dubuque & Sioux City Railway Company, 20 Iowa, 188, relied on by defendant, does not furnish this construction.
This case only determines that chapter 169 of the Laws of 1862 does not, as matter of law, require a railroad to construct cattle-guards at farm crossings. It merely decides that this statute does not declare how farm crossings shall be constructed. In other words, it merely shows that this statute does not define or aid in defining an adequate crossing. Then as an adequate crossing is to be constructed, and such crossing is not defined as matter of law, it must be determined as a question of fact.
And as railroads cut through farms in every conceivable manner, the adequacy of the crossing must largely depend upon the circumstances of the case.
But is the one crossing provided an adequate one under the circumstances ?
At the crossing provided at this place there are two gates, one on each side of the railroad. These gates do not hang' upon hinges, but are 15 feet wide, made of fencing boards, four boards high, with two posts and a cross-piece on which the gates slide back without rollers. In passing them they must be pushed back and lifted around. The gates are very heavy and clumsy to open and shut.
The railroad has thus, as the evidence shows, interposed itself between plaintiff and the highway, leaving him egress only through two ill-constructed and heavy gates. Every time that he or any member of his family has occasion to leave the premises, whether upon business or pleasure, the way lies through these barriers which constitute the only means of reaching the county, town, or elections, or school meetings, or church, or of making a family visit to a neighbor.
We have no hesitancy in holding that the means of crossing provided in this case are not, under the circumstances, adequate.
The policy of every well-regulated government is to furnish its citizens tree and uninterrupted access to the public highways, in order that they may discharge the various duties of citizenship with all practicable ease and pleasure.
And whilst it is not practicable to have a highway at every man’s door, yet no unnecessary or unreasonable obstacle should be interposed between him and the highways. In Bankhead v. Brown, 25 Iowa, 540 (546), it is said: “ Without a road or the means of getting a road to the farm of a citizen, he could not well obey the mrwre that commands him to attend at the court as a juror, could not well pay his taxes, vote, reach the church or send his children to school. Hence the State may properly provide for the establishment of a public road or highway to enable every citizen to discharge his duties. The State is not bound to allow its citizens to be walled in, insulated, imprisoned, but may provide them a way of deliverance.”
Whilst this is true it must be admitted that railways are improved highways, greatly facilitating means of locomotion and the transportation of commercial products, and doing much to promote the material interests of the localities in which they exist.
The law must be so construed as to protect the citizen, and guard him against needless burdens and encroachments, and at the same time so as not to oppress or discourage the great works of internal improvement which do so much to ameliorate the human condition, and which make the present as the most wonderful age of progress of which we have any record.
With these considerations in view we are of opinion that where a railway runs between the residence of a citizen, and the only means which he has of reaching a highway, that he has a right to insist that an open crossing shall be provided for
T. It is claimed that plaintiff is entitled to no relief in this action because of the notice which he served on defendant requiring the two crossings.
In this notice plaintiff required and demanded that defendant make and keep in repair two open causeways, or other adequate means of crossing said road, one south of his house, at a point where the fences are opened by means of gates erected, and the other for the passage of stock under the railroad bridge on plaintiff’s farm. It may be conceded that plaintiff was not entitled to a passage under the defendant’s bridge, and that he could not arbitrarily dictate the places of the crossings. Tet that he was entitled to an open crossing we have before seen, and he is also entitled to another adequate crossing, and he is not to be denied all relief simply because he asked more than he was entitled to.
He did signify to the company his desire for two adequate crossings of the railroad, pursuant to the provisions of the deed. The deed provides that he shall have two crossings if he requires them. He notified the company that he did require them, and then it became the duty of defendant to erect them. Plaintiff is not to be deprived of that' to which the deed clearly entitles him, simply because he undertook to designate the locality and kind of the crossings. In reaching
This action of the court was based upon the immateriality of the testimony, and seems to have been predicated upon the conclusion that, under the deed, plaintiff was not entitled to an open crossing.
Our conclusion that he is, under the circumstances of this case, so entitled, renders the suppressed evidence material and proper, and hence we have given it its proper weight in our examination of the case.
In our opinion the court erred in dismissing plaintiff’s petition.
Reversed.