183 Iowa 749 | Iowa | 1918
Defendant, for answer, says that the plaintiff has never requested the defendant to make a crossing over its tracks, nor has plaintiff pointed out a place where such crossing should be constructed; further, that there is no jurisdiction in the court to order defendant to make the crossing, for the reason that the jurisdiction is lodged in the Railroad Commission of the state, after notice duly given. It further says that it is willing to construct and now offers to construct a grade crossing, at, or substantially at, the point where plaintiff's former crossing was located, being the place where plaintiff has signified his desire to have the same put, and to do this within a reasonable time, provided the plaintiff signifies his willingness to permit the approaches to the same to extend on his land for a sufficient distance to permit of a safe and proper grade; but that the plaintiff has not signified his willingness to have the approaches so constructed, but objects to the same.
Upon the issues thus tendered, this case was submitted on a stipulation of facts as follows:
“It is conceded by both parties to this action that the*752 defendant is a corporation, engaged in the operation of a railroad through and across Dallas County, Iowa; that the plaintiff is the owner of the land described in his petition; and that the railroad of the defendant company runs through said land, and consists of a double-track system, with a right of way, at the point where the same crosses plaintiff’s land, of 170 feet in width; that plaintiff’s residence, barns, and other farm buildings are south of said railroad tracks;'and that that portion of plaintiff’s land lying north of said railway track consists of approximately 40 acres of ground, and is used by the plaintiff for the cultivation of ordinary farm crops, and1 for the pasturage of stock; and that the balance of plaintiff’s land lies on the south side of said railway tracks; that, during the two.years prior to the filing of the petition in this case, the defendant company has raised the grade of its tracks, and its roadbed where the same crosses plaintiff’s land, the raise in grade at said point being proximately 13 feet; and1 that the average height ot said track across plaintiff’s land is 20 feet above the level of the land; that, for many years prior to the raising of the grade of the said track of, the defendant company, the said company maintained for the plaintiff a farm crossing at grade across its said track and right of way, connecting the said two parts of plaintiff’s farm over the track of the defendant company; that the right of way owned by the railway company at or near the point at which plaintiff’s farm. was, is not of .sufficient width to permit of the building of-approaches to a grade crossing at said point, and said point being - conceded to be the lowest point in the grade across plaintiff’s farm, and it being conceded that, in order to construct a grade crossing at said point, it will be necessary to construct the approaches thereto upon land belonging to plaintiff, unless more land is acquired by the defendant company; that the distance at which said approaches at said point project from the right of way of the defendant as now*753 maintained on the south side would be proximately 100 feet; and that said approaches would be, at the base thereof, proximately 70 feet in width. It is further conceded that, should a grade crossing be constructed at any other point in plaintiff’s land over said railroad tracks, that the approaches thereto would extend outside of the railway com- ' pany’s present right of way proximately the same as has heretofore been stated.”
This stipulation was supplemented by the following testimony given by the plaintiff:
“I know the location of the crossing that the railway company maintained over their tracks and right of way prior to the time this grade was raised, and that it is about the most suitable location for a grade crossing anywhere in my field. The old crossing is shut up. It is fenced in, and they have never put in the new crossing. The raising of the grade destroyed the old crossing, and the right of way is fenced across the road. I have no crossing there at the present time. The railway company has done nothing toward providing me with a crossing since the other crossing was closed up. I have demanded the company to construct a crossing, but they have not done so yet.”
With this evidence supporting the issues tendered, the court entered a decree for the plaintiff, ordering “that a writ of mandamus issue, compelling the railway company to construct and make ready for plaintiff’s use an adequate means of crossing their right of way, at or substantially at the point upon plaintiff’s land where plaintiff’s former crossing was located, and that defendant is hereby ordered, to construct said crossing as aforesaid,” the work to commence within sixty days from the date of the decree, and the crossing to be completed as rapidly as is reasonable, in view of weather conditions. From this decree defendant appeals, and urges for our consideration the following propositions:
(1) The court erred in refusing and failing to hold that'
(2) The court erred in decreeing that the defendant should construct a crossing at or substantially at the place where plaintiff’s former crossing was located, without first requiring the plaintiff to provide ground for the approaches thereof; since the decree, in effect, required the construction of an under crossing, which can only be ordered by the board of railroad commissioners, in the manner provided in Section 2022 of the Supplement to the Code, 1913.
(3) The court erred in ordering the issuance of the writ of mandamus compelling the construction of an under crossing, until the plaintiff had furnished the necessary ground upon which to construct the approaches thereto.
The theory of the appellant, defendant, seems to- be that the only crossing that the court had power to require defendant. to construct was the grade crossing; that the defendant is not bound in law to construct any other crossing, unless ordered to do so by the board of railroad commissioners ; that, inasmuch as the court was limited in its power in a mandamus proceeding to requiring “the defendant to construct a grade crossing, it had no power to mandamus the defendant to construct any other crossing than a grade crossing; that the record discloses that a grade crossing cannot be put in at the place designated by the plaintiff, except by extending the approaches onto plaintiff’s land; that the court should have required the construction of a grade crossing, but should have imposed upon the plaintiff the duty of furnishing approaches to the grade crossing upon his own land; that the defendant is not bound to construct a grade crossing for the plaintiff except upon its own right of way; that, if an adequate grade crossing cannot be furnished in that way, and it becomes necessary, in order to
It is well to have the statute before us, in disposing of this question. Section 2022, Code Supplement, 1913, being Chapter 163 of the Acts of the Thirty-fifth General Assembly, provides:
“When any person owns land on both sides of any railway, or when the railway runs parallel with the public highway, thereby severing the farm from the public highway, the corporation owning the same shall, when requested to do so, make and keep in good repair a sufficient causeway or other adequate means of crossing the same and one cattle guard on each side thereof connected by cross fences to the right of way fence on each side of the right" of way at such reasonable place as may be designated by the owner. If such person desires more than one crossing or desires an overhead or underground crossing over or under said railway, he shall serve or cause to be served a notice in writing upon such railway company setting forth his demand, with a' plat of the land showing the place and manner of the desired crossing or crossings. If such railway company, within thirty days after having been served with such notice, has failed and refused to construct such crossing or crossings, such person may apply to the board of railroad commissioners of this state which shall have full authority to determine all questions growing out of such demand, and upon hearing, after due notice, make such order as it may deem just and equitable.”
The provision of the statute above set out has been the law of this state for many years, except that portion which gives to the railroad commissioners the power, under certain circumstances, to determine the character of the crossing, commencing with the words: “If such person desires
“Owing to the topography of the state and the usual size of farms, grade crossings are usually adequate, and hence ‘are the rule in this state.’ ”
“We have so constructed the. embankments upon our right of way and our roadbed that we are not. able to furnish you an adequate grade crossing. We therefore cannot and will not give you any crossing, because we cannot give you a grade crossing that is adequate without trespassing on your land. This we have no right to do. We will not give you an underground crossing or an overhead crossing because you have not invoked the right tribunal to compel us to do that. Therefore, you must go without any crossing, or you must join with us in making a grade- crossing by furnishing sufficient of your own land to make the' approaches. Or, in other words, we cannot make a grade crossing unless you contribute to the expense of making it. Unless you will contribute to the expense of mailing it, we will not make it.”
The court says:
“Your duty is to give him a crossing over your, right of*758 way. The law does not designate what kind of crossing you shall give him. The duty rests on you.’ If you cannot give him a grade crossing, give him such other crossing as is adequate. You have then discharged your duty under the statute. You need no order from the railroad commissioners to authorize you to do this. You must make a grade crossing or an underground crossing, but it must be adequate. This is all the plaintiff asks. This is all’ the decree requires of you.”
As has been held by this court, the right to resort to the railroad commissioners, under this statute as amended, is merely permissive, and is not inconsistent with the continued right of the court to enforce such rights. See Michalek v. Cedar Stupids & I. C. R. & L. Co., 173 Iowa 231.
When the defendant company, through the power of eminent domain, entered upon the plaintiff’s land, and condemned it to the uses of the company, the law said to the railroad company, “You must make compensation.” When the right of way divides the lands of the plaintiff into two or more parts, and roadbeds and embankments are constructed for the laying of tracks, the owner necessarily is embarrassed in the use of his lands so divided, and, if they were permanently divided, that fact would be considered in determining the amount the company is required to pay' him. He is met, however», with the proposition that the lands are not permanently divided; that, under the law, “it is the duty of the railroad company to give him adequate means of crossing these tracks at such reasonable place as he may designate.” His damages are, therefore, lessened because of the fact that this duty is imposed upon the company, and his damages are, therefore, assessed in the light of this fact. Now the company pays the damages, takes possession of the land, constructs its roadbed, raising the grade 20 feet above the surface, and says to the landowner: -
“We cannot give you a grade crossing unless you con*759 tribute to the expense. The damages which you recover from us were estimated on the theory that we would give you this grade crossing, — that we would furnish it, make it adequate and keep it in repair; but we find we have so constructed our track that we cannot give you this crossing unless you contribute to the expense of erecting it by furnishing to us more land, sufficient to enable us to build approaches to the crossing. We consider an underground crossing too expensive.”
This answer would hardly meet the situation. An apology for not discharging a duty is no good reason for not requiring the duty to be discharged. The plaintiff is entitled to a crossing. If the defendant finds itself in such a situation thát it cannot give him the usual and ordinary crossing, to wit, a grade crossing, then it must furnish him some other adequate crossing within the power of the company to furnish. Can it be the law that the plaintiff, under the situation, is required to contribute to the building of that which, the law says to the defendant, “you- shall give him in part consideration for the taking of his land?” It. is a part consideration because it is an element to be considered in estimating the amount of damage which the plaintiff may recover. We see no escape from the conclusion that the plaintiff is not bound to furnish land for the approaches; that the defendant is bound to furnish the plaintiff an adequate means of crossing from one side of the track to the other; and that, if it cannot make a grade crossing, it must give to the defendant some other adequate means of crossing this track. We have read Speer v. Erie R. Co., 68 N. J. Eq. 615 (60 Atl. 197), and Williams v. Clark, 140 Mass. 238 (5 N. E. 802), and are not by these cases persuaded to a different holding than is here indicated.
Upon the whole record, we see no ground for interfering with the judgment of the district court, and its decree is affirmed. The time within which to perform the mandate
