140 Iowa 201 | Iowa | 1908
— Tire plaintiff is the owner of certain lots abutting upon Manson street, in the town of Clarion, Iowa. He brought this action to recover damages to said premises under the provisions of an ordinance of the town of Clarion passed April 7, 1902, granting to the Mason City & Ft. Dodge Railroad Company the right to locate and lay down one or more additional railroad tracks upon Manson street in front of plaintiff’s property, one of which additional tracks had already been laid and was being used for a switching track. In 1886 the Mason City & Ft. Dodge Railroad Company built a railroad between Mason City, in Cerro Gordo County, Iowa, and Ft. Dodge in "Webster County, through Clarion, and applied to the town council of Clarion for an ordinance permitting said company to lay its railroad track upon Manson street, in said town, and thereupon the said council passed an ordinance on August 14, 1886, as follows, so far as the same is material here:
Re it ordained . . . that the Mason City & Ft. Dodge R. R. Co. is authorized and permitted to locate and lay down and forever maintain its railroad track upon and along Manson St. in Eastman’s Addition of said town of Clarion. The terms and conditions of the above ordinance are that said Mason City & Ft. Dodge Railroad Company shall leave the said street for travel in as good condition as the same now is, and at the intersection of*203 streets shall maintain good and suitable crossings as the same are required, and make adequate compensation to all abutting property owners for the damages sustained.
Pursuant to this ordinance, the railroad company laid a single track on Manson Street, and thereafter it paid to J. M. Overbaugh, the plaintiff’s grantor, $350 damages on account of the location of said track on Manson street. "This was the only track on said street until in 1902, when, at the special instance and request of the said l’ailroad company, the city council of Clarion passed another ordinance granting to the said railroad company the right to lay one or more additional tracks on said street; section 2 of said ordinance providing that the railroad company should make adequate compensation to the abutting property owners for damages sustained by reason of such additional tracks. The trial court held that the ordinance of 1886 gave the defendant, company the right, not only to occupy said street with its main track, but the right to lay thereon such additional tracks as might be necessary for the reasonable and proper conduct of its business, • and that the ordinance of 1902, known -as “Ordinance No. 51,” was of no force - or effect.
While it may be true as á general proposition that the right to lay a track would carry with it implied authority to lay such additional tracks as might be reasonably necessary for the transaction of the business of the road, it is not controlling in this case because of the facts and ■circumstances disclosed by the record. It is a well-established principle that grants of franchise or license' are to be strictly construed in favor of the grantor and against the grantee, and that no right will pass by implication unless it is of such a character as to be without question. And, in accordance with this principle, it is practically the universal holding that grants by a multiplicity of the right to use its streets are to be strictly construed against the grantee. 10 Cyc. 1088, and cases there cited; Fer
Here the record discloses facts and circumstances which leave no doubt as to the purpose for which the original grant was made. The first ordinance gave the railroad company in explicit language the right to lay its track upon and along said street of Hanson. The damage to the abutting property was settled on the basis of the damage done by this single track. Thereafter the city, by its authorities, and the railroad company, construed the original grant as giving the company the right only to use the street for a single track, and it is a well-settled rule that the interpretation which the parties themselves by their acts have jiractically given a contract or a grant will have great weight in determining its terms or extent. Stewart v. Pierce, 116 Iowa, 733. As we have heretofore said, the use of a public street for railway purposes is more or less adverse to the interests of the public and to the interests of abutting property owners, and, where application is made to a municipality for the use of one or more of its streets for the purpose of laying a single track, and the damages to abutting property are paid on the single track, the courts should be very slow to construe an ordinance granting the franchise or license so as to permit the laying of additional tracks. And, where a municipality and the railroad company have themselves given a different interpretation to the
For the reasons pointed out, the trial court was in error, and the case must be reversed.