55 Iowa 505 | Iowa | 1881
I. The petition alleges that defendants are engaged in the construction of a railway, to be operated by horse and steam power, along a public highway between Cedar Rapids and Marion, known as the Boulevard, and that if they be permitted to accomplish their purpose by completing the railway it will be an obstruction to public, travel and entirely destroy the highway, thus becoming' a nuisance which will work irreparable injury to plaintiff. It is also alleged that defendants are prosecuting their designs without the assent of plaintiff, and without the authority -of law. The answer alleges that the Boulevard upon which the railway is being constructed by a street railway company is one hundred and twenty feet wide, and that the track is laid and to be laid upon the south side thereof. It is denied that the railway will obstruct or interfere with travel upori the highway, and is or will become a nuisance, and averred that it will become a great public convenience.
Affidavits were filed by plaintiff supporting the allegations of the petition, and the defendants supported the averments of their answer in the same manner. It is shown in -this way that the railway track occupies and is to occupy “ the extreme south side of the public highway,” and the answer alleges that it is eight feet wide.
II. Plaintiff insists that the occupation of a public highf way by a railroad track, in the absence of express statutory permission, is a public nuisance which the courts will abate and restrain; that since the amendment of Code, section 1262, by chapter 47, acts Fifteenth General Assembly, no such permission is given by law; that injunction is a proper remedy
The application for the injunction was refused before this act took effect, March 16, 1880, but counsel for plaintiff concede “ that if it clearly appears that defendants are within its provisions, this court will not disturb the action of the court below, although erroneous at the time the injunction was refused.” Counsel, however, deny that defendants show themselves to be within the provisions of the act. They base their position upon this ground: Prior to this statute no highway could be more than sixty-six feet wide; the highway in question, therefore, was confined to that width; let this be admitted. The answer and affidavits show that the Boulevard^ is one hundred and twenty feet wide, and that the railroad track is of the width of eight feet, and is laid upon the extreme south side of the highway. It is shown that the highway is graded to the width of sixty feet. If the railroad track is outside the sixty-six feet in width, then it vjas not, when the injunction was refused, upon the public highway, according to counsel’s views. If this be so, plaintiff has no
Affirmed.