85 Iowa 455 | Iowa | 1892
This proceeding was commenced in October, 1886. In November of that year it was •enjoined in an action brought for that purpose. That action was subsequently disposed of. by an order in harmony with the decision of this court in Keokuk & N. W. R’y Co. v. Donnell; 77 Iowa, 221, and further action was had in this proceeding in the latter part of the year 1889. The application of the’ plaintiffs, filed with the sheriff, asked that a jury be impaneled to assess the damages the plaintiffs had sustained by the taking of the right of way by the defendant for its road from the land of the plaintiffs, described,' and alleged that the defendant and the plaintiffs “cannot agree upon compensation to be paid for said right of way over said land. ’ ’ The defendant appeared before the jury impaneled on this application, and filed an answer setting up various defenses, and offered evidence to sustain them. The jury, on the objection of the plaintiffs, refused to consider any evidence excepting that which tended to show the compensation to which the plaintiffs were entitled for the taking of the right of way, and assessed it at the sum of twelve hundred dollars.
I. The appellant contends that the sheriff’s jury had no jurisdiction to assess the damages in question, for the reason that the application of the
II. There was no reply to the answer. The appellant insists that the answer set up new matter,
III. The road was constructed by the defendant over the land in question in the year 1880. It is
IV. It is said that the plaintiffs have failed to show title in. themselves to the land from which the right of way was taken. In January,
V. The defendant claims to be the owner of the right of way by virtue of agreements and proceedings
“In consideration of three hundred dollars, paid by canceling the subscription to said railway company, the receipt whereof is hereby acknowledged, we do*463 ■agree to convey to the Keokuk & Minnesota Railway Company the right of way, not exceeding sixty-six feet in width, through the northeast quarter of section twelve, southeast quarter of section one, northwest quárter northeast quarter section one, all in township sixty-nine, range seven, Lee county, Iowa, provided the line is located north and south across said northeast quarter of section twelve, starting from where the line now crosses the south line of said quarter section; the same to be deeded to the aforesaid company on demand after said road shall have been built through said land. Witness our names this sixteenth day of August, 1870. T. C. Hartley & Bros.
“Signed in the presence of
“Wi. Timberman.”
“Said railway company to furnish said Hartley & Bros, fencing boards and posts enough to make a strong fence along the line of said railway across the southeast quarter of section one, within one month after the track is laid; said Hartley & Bros, to furnish the nails and put up the fence without cost to said railway company.”
At about the same time Rachel Bunker, who it appears, claimed title to a part of the land in question, signed an agreement as follows:
“In consideration of fifty dollars, I do agree to convey to the Keokuk & Minnesota Railway Company the right of way, not exceeding sixty-six feet in width, through the south half of the northeast quarter of section one, township sixty-nine, range seven, Lee county, Iowa, the fifty dollars to. be paid when the first passenger train passes over the land; the same to be deeded to the aforesaid company on demand after said road shall have been built through said land, .and not until the fifty dollars is paid. Witness my name this second day of August, 1870.
“Raohel Bunker.
“Signed in presence of Guy Wells.”
The appellees contend that the interest of the Keokuk & Minnesota Railway Company in its right of way was not sufficient to support a mechanic’s lien; that whatever interest it had, reverted to the owners of the land for failure' to use the right of way for a period of more than eight years; and that the defendant’s proceeding of 1880 was ineffectual to divest the owners of title because they were not made parties to it. It is also insisted that the probate court had no power to substitute Wells for Timberman as trustee.
The agreement signed by T. C. Hartley & Bro. recites a consideration of three hundred dollars, paid by canceling a subscription to the Keokuk & Minnesota Railway Company. It provided for the delivery of a deed on demand after the road of that company should be built on a line which was in part designated. The road specified was never built, and it does not appear that the road of the defendant was constructed on the line contemplated in the agreement. On the contrary, it is clearly shown that the road of the defendant runs for more than one and three-fourths miles through the land of the plaintiffs; that it follows the line of the old company for about half a mile, and that for the remainder of the distance it is on a wholly different location, most of which is nearly one-fourth of a mile from the former one. It thus appears that, if any interest in a right of way was conveyed by means of the foreclosure proceedings — a question we do not find it necessary to determine — it was not an interest.in at least five-sevenths of the right of way in controversy, and the defendant has failed to show that there was any conveyance of an interest in the remaining two-sevenths, for it is not shown that any part of its line is located where the contract of T. C. Hartley & Bro.
VI. The defendant introduced in evidence a deed executed by the master in chancery of the United 6. -: -: -: -. States circuit court for the southern district of Iowa, eastern division, dated April 1, 1889, which purports to convey to C. E. Perkins the railway and franchise of the defendant, including the railway over the land of the plaintiffs: It is said that this deed defeated the right of the sheriff’s jury to assess the damages in controversy. In regard to this it is sufficient to say that the deed was made while this proceeding was pending, and the plaintiffs were not made parties to the action or proceeding in which the deed was ordered. They are not, therefore, affected by the deed.
VII. One of the plaintiffs was asked this question: “What, in your judgment, is the difference in the fair
For the error in admitting evidence, the judgment of the district court 'is reversed.