12 Iowa 246 | Iowa | 1861
This is an appeal from an order of the District Court refusing an allowance of an injunction to restrain the respondents from constructing a railroad along and upon Jefferson street, in the city of Cedar Rapids.
The application was based upon the following alleged facts; that the complainants are legal owners and tax payers, and some of them residents on lots fronting on said street; that said lots aro situated in Carpenter’s additions to the city of Cedar Rapids, surveyed, platted, acknowledged and recorded in the years 1854 and 1855, as the law requires. Among others, Jefferson street is dedicated as a highway upon the map of said additions. That the petitioners purchased in fee their lots from their co-complainant
Under these circumstances it was claimed:
First. That to construct and operate a railroad along said street, would be an undue interference with the proprietary rights of the complainants, who claimed the fee of the soil to the center of the street; unless the right of way had been obtained and compensation made in the mode proscribed by law — which had not been done.
Second, That the permission to do so by virtue of an ordinance passed by the corporate authorities of the city of Cedar Rapids, was ineffectual and nugatory, being a grant without authority of law.
Third. That such a use of a street in a city or town, is
These several grounds upon which the injunction was prayed in this case will be briefly considered in the light of our statute law, and of the authorities of other States, where the same questions have been elaborately and learnedly discussed and settled.
First, Is it true that where towns and cities in Iowa have been laid out in the manner required by our statutes, that the purchasers and proprietors of lots in the same hold the fee of the soil to the center of the streets on which said lots front. An affirmative answer cannot safely be given to this question, if the plain meaning of words is not to be disregarded.
The laying out of torra sites in this State, and whilst it was a territory, has been and still is the subject of statutory regulation. It is understood that one and the oldest portions of the plat or site of the city of Cedar Rapids was laid out and recorded under an act of the legislature approved January 25th, 1839, the 5th section of which reads as follows: “When the plat or map should have been made out and certified, acknowledged and recorded as required by this State, every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or body politic, marked or meted as such on said map or plat, shall be deemed in law and in equity, a sufficient conveyance to vest thefee simple of all such parcel or parcels of land, as are therein expressed, and shall be considered to all intents and purposes, a general warranty against such donor or donors, grantor or grantors, for his, her or their use, for the uses and purposes therein named, expressed and intended to be for the streets, alleys, ways, common or other public uses, in any town or city or addition thereto, shall be held in the corporate town thereof, in
Doctor Carpenter’s additions to the city of Cedar Rapids, where the complainants property is situated, were laid out and recorded, agreeably to the provisions of the Code of 1851, § 637 of which reads as follows: “The acknoAvledgment> and recording of such plat is equivulent to a deed in fee simple of such portion of the land as is therein set apart for public use, or is dedicated to charatable, religious or educational purposes.”
■ We presume all will consent, that in one respect the legal effect of these statutes is substantially the same, and that they do, whenever the town site is surveyed, platted, acknowledged and recorded in the manner prescribed by law, wholly divest the proprietor of such town, of his legal estate in such portions of said land as are dedicated to the public use, so that it becomes out of his power afterwards, when he sells the lots upon his town site to transfer the fee in the public streets to his grantee. We will not suppose the absurdity that the fee simple in land can go in two distinct directions and be held adversely at the same time by different parties. A proposition so plain as this need not be sustained by authority, though we may remark in passing, that the Illinois courts have given the same construction to a similar statute. 11 Illinois, 554; 13 Ib. 50; 21 Ib. 516.
It is not true then that a purchaser of town property in this State takes a title in the fee of the same to the center of the street upon which it fronts; but the only interest which he possesses in or to the streets, is that which is common to the whole public — the right of way over them.
To the writer of this opinion there is another sufficient reason why this must be so. We all understand that the established inference of law is, that a conveyance of land bounded on a public highway or river, carries with it the fee to the center of such highway or river, provided that the gran
The law reqires that an accurate map of the plat of the town shall be made, marking'and describing the length and breadth of the lots as well as the breadth and courses of the streets and alleys. This necessarily implies a diagram that shall delineate the lines and dimensions in feet of each separately. These lots are further designated by numbers, and it is simply by these numbers that they are conveyed, as they are known to represnt the particular lot, with its specific boundary as delineated upon the map. Under such circumstances there is no room .to indulge the presumption that the purchaser takes any more land than is contained within the defined lines of his lot. And in truth he does not any more than the purchaser from the General Government can take fee of soil outside of the Congressional lines of survey of the particular tract purchased, whether the same run along the side of a highway, river or otherwise for the plain reason that in both cases the purchaser takes under a specific description, with boundary lines definitely described and made of record. It follows, in our judgment, that the complainants in this case have no rights of soil in Jefferson street in said city, which have or can be violated
But as this court held somewhat differently upon the first hearing of this cause, following perhaps, the ruling made in the eases of Haight v. The City of Keokuk, 4 Iowa, 199, and The City of Dubuque v. Maloney, 9 Ib., it is proper we should explain the circumstances under which those decisions were made, and why they should be regarded an exception to the principle involved in this class of cases.
The city of Keokuk is situated upon a tract of land granted by Congress to the half breeds of the Sacs and Fox tribes of Indians. It was owned jointly by a large number of shareholders. It was not laid off by them, but by certain commissioners appointed by the court to make partition of the same. In their report the commissioners used the following language in respect to the town lots generally, to-wit: “All the town lots included in the above share or plat, are bounded by the middle of the streets and alleys on which they are situated, and those on Water street include also the land in front of them to the Mississippi River.” This report was approved and made the basis of a decree of partition among the several shareholders. • The principle decided in the case of Haight v. The City of Keokuk, supra, was that the lot owner on Water street held the fee of the soil in front of his property, to high water mark, subject to the easement of the public for the purpose of a highway and a wharf. The decision was right. But a clear distinction' will be noticed between the facts of that, and the case nowr before us.
Then again, in the case of The City of Dubuque v. Maloney, supra. Moloney was a lot owner, and it became a question in the controversy, -whether the fee to the center of the street in front of the lot, was in the plaintiff or in
With this explanation of the circumstances under which the cities of Keokuk and Dubuque were laid out, as accounting for the reason why the proprietary rights of fheir respective citizens in the streets were held to extend to the center, or to high water mark, the inquiry may be pursued in relation to other towns and cities, laid out under the statutes, as to what becomes of the fee in the streets when it passes by operation of law, out of the proprietor, at the date of the recording of his town plat.
Upon this question the language of the statute is not explicit, yet guided by the rule which enjoins the giving of statutes a reasonable interpretation, we cannot but think it a sound inference to hold, that whilst the fee, ex necessitate, must rest for a time in obeyance, that, nevertheless, it vests in the corporation, whenever its organization as such is effected, for the use of the town or the public.
First. This is the construction given to the Illinois statute from which ours was evidently derived. And it is the dictate of common prudence at least, to adopt the interpretation which the local courts, where the law originated, have given to it. See Illinois authorities cited, supra.
The second suggestion we have to make is, that the dedi
But another question still remains for consideration, and that is, whether the railway proposed to be constructed over or upon Jefférson street, would not be a public nuisance. The affirmative of this question is urged upon the ground that a railway use of a street is wholly inconsistent with, the purposes and objects of its original dedication; that it is a street monopoly, excluding all competition; that it tends to encumber the street and prevent the free and common use of the same on foot, on horse back, or with private carriages; and, finally, that no highway can be rightfully used for the purposes of a railway, unless the right to do so has been conferred in express terms by the legislature, which, it is claimed, has not been done in this case. All this is within the logic and language of the cases of Davis v. The Mayor &c., of New York et al., 4 Kernan, 506, and Williams v. The New York Central Railroad Company, 2 Smith, 97; but not within the facts or the actual principle involved in these cases. They are referred to as perhaps
Take the first of the above named cases in 4th Kernan. It arose and was decided after the legislature of New York had passed an act expressly forbidding the municipal councils of cities to permit a rail-way commencing and ending in the city, to be established in any street or avenue without the consent of a majority in interest of the owners of property upon the street. Without procuring such consent from the property holders, the defendants obtained a permit from the corporate authorities of the city to lay down a rail-way track on Broadway, within said city, and upon the application of the plaintiff for an injunction the court held, that notwithstanding the fee of the streets was in the city, which also possessed the general power to regulate, alter, repair and control the same, yet that it was not competent for the city by its council, in the face of the above prohibitory act, and in the absence of any other legislative authority, to establish a rail-way running wholly within the city, and that if it assumed to do so, and the track was accordingly laid down and used, it would be a public nuisance, for reasons (among others) above assigned. But it was also held that if the city was vested with the authority from the legislature to establish or to license an association of persons the right to construct and maintain for a term of years a rail-way in one of the streets for the transportation of passengers, that that could not in law amount to a public nuisance. It might subject the inhabitants thereof to annoyance and even detriment, yet having been authorized by competent legal authority, it would be damnum absque injuria.
The G-eneral Assembly of New York has made a distinc
And the question arises, whether the legislature of Iowa has not substantially conferred this power upon all railroad companies in this State. The 8th section of the law of 1853, page 58, entitled “an act granting to railroad companies the right of way,” provides that “ any railroad cor•poration may raise or lower any turnpike, plank road, or other way, for the purpose of having their railroad pass over or under the same,” &e. The word “over” means undoubtedly at an elevation above, as opposed to “under;” but it is clearly not limited to this meaning in this section, but includes the idea of crossing highways on the surface thereof, and also running upon them lengthwise. The first definition given to the preposition “over,” by Webster, is “across;” its fifth meaning is, “on the surface of;” its sixth definition is, “ upon.” And it is in the sense of these last two definitions that the legislature, in the 4th section of the same act referred to, used it; where it is enacted, that “if the owner of any real estate over which said railroad cor
Now the law making power of this State has thought proper, as we construe the statute, to give to railroad companies the right to construct their rail-ways upon the streets of cities; and they have invested the local governments of those cities, both with the fee of the soil of the streets and the exclusive control over the same; and if in the exereise of their proprietary rights and police regulations over the streets, they should determine that iron rails and their use are a legitimate street improvement, upon what ground can this court determine otherwise, or control their authority in this respect ? We apprehend none, for the reason that both the company and the city have derived their rights and privileges in the premises from the sovereign power of the State, which cannot be supposed to authorize that which would amount to a nuisance.
The leading idea or argument running through these authorities is, that the dedication of streets in a city to public use is without restriction, as it respects the right of way or mode of transit; that they are necessarily subjected to purposes far more extensive than common highways; that the very large control given to city governments, over their streets, carries with it the power of modifying, abridging and enlarging their use in the way that shall best subserve the interest and business of the Gity; that the laying down and operating a railway track over a part of a streets is not an unreasonable obstruction of its free use, nor incompatible with its original dedication, but rather a new and impoved method of using the same, germain to their principal object, as a passage-way, marking the progress of civilization in this age, and to which the genius of the law readily accommodates itself, as should also the genius and habits of the people.
Affirmed.