142 Iowa 474 | Iowa | 1909
Plaintiffs’ premises consist of a tract of land of thirty or thirty-five acres, located about one mile from the city of Marion. Many years ago the defendant railroad company laid its right of way, one hundred feet in width, through this tract, and has used the same for railroad purposes down to the present time. This proceeding involves an. additional condemnation. For the purpose of straightening its track the defendant company instituted a proceeding to condemn an additional strip of land contiguous to the north side of the original right of way, and extending through the plaintiffs’ tract from east to west. The strip so taken is one thousand feet in length, and varies in width from one hundred and fifty to one hundred and seventy feet, and contains' an area of three and seventy-six one-hundredths acres of land. Plaintiffs’ buildings are near the south line of the tract, and the most valuable land , is on the south side of the railway. On the west side of the tract the plaintiffs have maintained for many years two pastures, which were divided from each other only by the old right of way. About twenty-five years ago a crossing was furnished to the plaintiffs by the defendant near their west line, and the same had been used ever since for passing from one pasture to the other, and to some extent for the hauling of wood and stone. There appears to have been another crossing, also, not far from the east line of the tract, and which furnished a means of access to tillable land on the north side of the railway. Defendant’s roadbed as built upon the additional strip of ground is a high embankment. For the purpose of obtaining earth to build such embankment the ground between the two' lines of track has been excavated to great depths. The embankment becomes higher, and the excavations deeper as one proceeds from the east line to the west. At-the east line the excavation is about five or six feet deep, and the embankment a corresponding height. The excavation reaches
Exhibit "1" .___
The theory of the defendant on the trial was that, inasmuch as the plaintiffs were entitled, under section 2022 of the Code, to “an adequate means of crossing” . . . “at such reasonable place” as they might designate, that inconvenience caused by a change of place of a crossing could not be considered at all in estimating damages. Its contention now is that the plaintiffs
The law of this State requires that, where a person owned lands upon both sides of a railway, the railway company shall furnish to him one cattle guard and one causeway, or other adequate means of crossing the track at such point as the owner may designate. The question of what shall be the particular location of the crossing to be furnished by the company is not to be considered in this case. You are to assess the damages sustained by the landowner upon the theory that the railway company will be compelled by law regardless of expense to it, to furnish the landowner adequate means of crossing its track and right of way. This may require a fenced lane to cross the right of way with cattle guards, or it may require a crossing to be constructed under the track, or in certain instances by a bridge over the track. But in some way the railway company must furnish to the plaintiff in this case adequate means of crossing, and your verdict must be rendered upon the theory that such adequate means will be furnished.
The first sentence would have been proper, if it had not departed from the statute, in substituting the word “point” for “reasonable place.” As it is, it is clearly erroneous. The latter half of this instruction is improper. As already indicated, “expense” is an important considera