Hine v. K. & D. M. R., 42 Iowa 636

Hine v. K. & D. M. R.

42 Iowa 636 | Iowa | 1876

Day, J.—

1. PLEADING: demurrer. I. The petition alleges that plaintiffs are the owners in fee simple of the premises in controversy, subject 0ELty to rights of the public to the use of Water street. The answer denies each and every allegation of the petition, except such as are expressly admitted. It is nowhere in the answer admitted that plaintiffs owned the property in controversy. The demurrer is general to the entire answer. For that reason, if for none other, the demurrer was properly overruled. This will be rendered fully apparent by supposing that the court had sustained the demurrer and defendant had refused to plead further. Plaintiffs might then have had judgment, as by default, notwithstanding the fact that the answer denies plaintiffs’ ownership of the property in question. That it would have been ei’ror to have sustained the demurrer, and hence was not error to overrule it, see McPhail & Co. v. Hyatt, 29 Iowa, 137. See, also, Jarvis v. Warich, 10 Iowa, 29; Coon v. Jones, Ib., 131; Zapple v. Rush, 23 Iowa, 99; Hendershott v. Ping, 24 Iowa, 134.

II. Although the petition asks possession of lots three, four and five, and of Water street lying between these lots and the Mississippi river, yet it is apparent from the answer and the argument of appellants that the right to the possession of Water street is the only thing in controversy. Appellants, in their argument, say: “We found our rights, in this case, upon the following propositions:

“1. The fee title of the sheets and alleys of the city of Keokuk,, including Water street, is in the abutting lot owners.

“ 2. The fee title of said streets and alleys being in the *641abutting lot owners, they have a right of property therein, which cannot be taken for public use without compensation, under the constitutional provision that private property shall not be taken for public use without just compensation.

“3. Said defendants claiming to have a right to lay their track along Water street, by virtue of a grant from the city of Keokuk, and from no other source,-the power to grant such right of way must be expressly given in the charter of said city, or necessarily implied from its general powers over streets and alleys.”

2. former adjudication: precedent, It is thus apparent that the foundation of plaintiffs’ claim is that they have the fee title to Water street. Whether or not the fee of Water street is in the plaintiffs is a question of fact, and depends upon the proof which may be introduced. Yet, notwithstanding the averment .of such ownership in the petition, and the positive denial of it in the answer,' appellants throughout argue the case upon the hypothesis that appellants’ ownership of the-fee of the street is an established or conceded fact. In support of their position appellants cite Haight v. The City of Keokuk, 4 Iowa, 199, decided in 1856. It is true that in that case, upon the evidence there produced, it was decided that Haight who owned lots abutting upon Water street owned the fee in that street, subject to the pub-lie easement. But the defendants in this case were strangers to that controversy, and they are not bound by it. Upon the trial they may show an entirely different state of facts from what was proved in that case. They may even show that the property in controversy was laid out and platted by a different proprietor, at a different time, and that the dedications and reservations are different from those contained in the plat under which the decision in Haight v. The City of Keokuk was made. But whether the defendants may be able to show a different state of facts or not, it is clear that they must be permitted the opportunity of making the effort, and that they cannot be estopped by what was determined in that case. If the facts should appear to be substantially the same as were found to exist when Haight v. The City of Keokuk was determined, then that case will be *642a precedent for the emmciation of the same general doctrine; •and that is all the office which that case can perform in this controversy. That the' plaintiffs owned the fee in Water street cannot be assumed as a legal conclusion, nor is it a fact of which the court can take judicial notice. Having been denied, it must, like other facts, be proved. This, it seems to us, is' decisive of this case. The whole argument of appellants is based upon a premise which is not admitted to be true, and of the truth of which there is no proof. The right of a lot owner, who has the fee in the abutting street, to damages for the occupation of the street by a railway propelled by steam is not involved in this case, in the present state of the record, and respecting that we express no opinion.

3. RAILROADS: municipal corporations right way. III. Whether or not the city of Keokuk, under its charter, could confer upon defendant the right to occupy a street in the cifcy n°t material. In the Chicago, Newton & Southwestern R. Co. v. The Mayor of Newton, 36 Iowa, 399, it was determined that the various views maintained in The City of Lyons v. The Cedar Rapids & Missouri River R. Co., 24 Iowa, 55, had settled the principle that a railroad company has a right, under the provisions of section 1321 of the Bevision, subject to proper equitable control and police regulations, to pass over a street in a city without the consent of the city authorities; and that the right does not depend upon the previous payment to the city of the damages occasioned by such occupation. As against the city, then, the defendant had the right to occupy the street, subject to the conditions named.

There was no error in overruling the demurrer.

Affirmed.