49 Iowa 664 | Iowa | 1878
The plaintiffs are the lessees of a certain irregular parcel of land within the corporate limits of the city of Davenport, having a river front of about one thousand three hundred feet, and extending back about nine hundred feet, on which is situate a steam saw-mill, planing-mill, lumber-yard, houses, etc. The said premises are used exclusively for the manufacturing and selling of lumber; or, rather, the plaintiffs so claim. Logs are obtained by being floated down the river and landed in front of, or convenient to, the saw-mill. The plaintiffs, or those under whom they claim, have gradually and from year to year made an embankment from a projection on the shore into the river, at the outer end of which there has been erected a stone crib or pier. The embankment between the crib and natural shore was made principally with the refuse of the mill, but it is firm and solid. Across this embankment the railway was constructed.
The council of the city of Davenport, under certain conditions prescribed, in an ordinance, authorized the construction of the railway where the same was located.
On March 3, 1873, Congress passed the following act:
“The owners of saw-mills on the Mississippi river are authorized and empowered, under the direction of the Secretary of War, to construct piers or cribs in front of their mill property on the banks of the Mississippi river for the protection of their mills and rafts against damage by flood and ice, provided that the piers or cribs so constructed do not*666 interfere with or obstruct the navigation of tbe river; and in case any pier or crib constructed under authority of this section shall, at any time and for any cause, be found to obstruct the navigation of the river, the government reserves the right to remove or direct the removal of it, at the cost and expense of the owners thereof.” Revised Statutes of United States, § 5254.
It is conceded that the consent of the Secretary of War was not obtained for the erection of the embankment and crib in question.
In 1874 the General Assembly of this State passed the following act:
“1. That all owners and lessees of lands or lots situate on the Iowa banks of the Mississippi and Missouri rivers, upon which property there now is, or hereafter may be, carried on any biisiness in any way connected with the navigation of the rivers, or to which said navigation is a* proper or convenient adjunct, are hereby authorized to construct and maintain in front of their said property such piers, cribs, booms, and other proper and convenient erections and devices for the use of their respective pursuits, and the protection and harbor of rafts, logs, floats and other water crafts; provided, that the same present no material or unreasonable obstruction to the navigation of the stream, or to a similar use of adjoining property.
“2. It shall not be lawful for any person or corporation to construct or operate any railroad or other obstruction between such lots or lands and either of said rivers, or upon the shore or margin thereof, unless the injury and damage to such owners occasioned thereby shall be first ascertained and compensated in the manner provided by chapter 4, title 10 of the Code.” Public Laws of the Fifteenth General Assembly, 28.
The important and material questions discussed by counsel are: First., that Congress has exclusive jurisdiction over the navigable waters of the United States, and having exercised it
This brings us at once to a consideration and construction of the legislation of. the State which is claimed to be in conflict with that of Congress.
We shall not stop to consider whether the first section of the act of the General Asssmbly of 1874, in so far as it authorizes the erection of cribs or, piers, is in conflict with the act of Congress or not, but will concede it to be so.
It does not follow that, therefore, the second section is void, and the plaintiffs not entitled to damages thereunder. The two sections are separate and distinct, and embrace different subjects. One, therefore, may stand, although the other is unconstitutional and void.
It is insisted that the second section only refers to and embraces the property described in the first, and that, unless a riparian owner has availed himself of the benefits of the first section, he is not entitled to damages under the second; or
We cannot concur in these propositions, and believe them to be unsound.
We have no occasion to determine whether a riparian owner who is not engaged in any business connected with the navigation of the river can recover damages because of the location of a railway, as in the case at bar. But we do not believe that, when one is engaged in such business, it is essential to his recovery that he should have erected a crib or pier in front of his property. Such an invidious distinction between riparian owners engaged in business connected with the navigation of the river should not be indulged. Nor should such construction be tolerated, unless it is required by the positive and express words of the statute, or appears therefrom by necessary and unmistakable implication.
So far from this appearing, the clear intent of the statute is to place all riparian owners on the same footing. The damages accrue under thé statute to the lots and land, and business done thereon connected with the navigation of the river by reason of the construction of the railway, and not because a crib or pier has been erected in front of the premises.
The reference to such “lots or lands” in the second section of the statute does not mean only such “lots or lands” mentioned in the first section, in front of which piers or cribs have been constructed, but to such “lots or lands” as are “situate on the Iowa banks of the Missisippi and Missouri rivers upon which property there now is, or hereafter may be, carried on any business in any way connected with the navigation of the rivers.” It must be true, or at least may be, that a riparian owner may carry on a business connected with the navigation of either of said rivers without the erection of any crib or pier. Such an owner, under the statute, is as much entitled to damages as one who has made, or may hereafter make, such erections.
These cases recognize the doctrine that the title to the soil between high and low water is vested in the State, and not in the United States, and such is the well-settled rule. Martin v. Waddell, 16 Pet., 367; Den. v. Jersey Company, 15 Plow., 426; Pollard v. Hagan, 3 How., 212. When the Tomlin ease was determined section 1328 of the Revision was in force, which provided that any railroad corporation might use, occupy and enjoy “any lands of the State,” without payment of damages, to an extent necessary and convenient for the purposes of the corporation. The theory of that decision is that the State, as the owner of the soil between high and low water, had granted the defendant the right to construct its railway thereon, without the payment of damages; that the plaintiff was not entitled to recover, because thereby he had been deprived of the free and convenient access to the river.
Section 1328 of the Revision has been repealed, and in its place the statute of 1874 has been enacted. The rule of the Tomlin case is, therefore, no longer applicable.
The State being the owner of the soil, the defendant was not entitled to construct its railway thereon without the consent of the State. Tn the absence of such consent the State could have enjoined the construction of the railway. The right to construct the road has been granted on condition that the defendant shall indemnify the riparian owner. Without doubt, we think, the State had the power not only to grant the right, but to annex thereto the condition mentioned.
In Atlee v. Packet Co., 21 Wall., 389, the pier was erected without* authority, and, being an obstruction to navigation, it was held that damages might be recovered by the owner of a barge which collided therewith.
The case at bar is different in several respects, even if it be conceded that the crib is unlawful and constitutes an obstruction to navigation; prominent among which is that the defendant is not seeking to recover damages caused by the erection of the crib. In no respect has the defendant been damaged thereby. But the right of a riparian owner to erect wharves, piers, and similar structures, provided the same do not obstruct navigation, has been affirmed in several adjudicated cases. Musser v. Hershey, 42 Iowa, 356, and cases there cited. i
If the crib is an unlawful structure, it by no means follows that the embankment is, at the place where it is crossed by the railway between high and low water. If it is, then the railway is also. It will be assumed, therefore, that the portion of the embankment within the right of way does not constitute an obstruction to navigation. It was, therefore, property,
' It is not claimed that the defendant was in any respect injured or damaged by the erection of the embankment, or that it formed an obstruction to defendant’s navigation of the river. In fact, it is clear it did not desire to do so, but desires to take and appropriate the plaintiffs’ property because it interferes with some one’s rights who does not see proper to complain.
•The undertaking of the defendant for the protection of ■others is larger than it has authority to assume. There was no error in the refusal to instruct in this respect, as asked by the defendant.
For the reasons heretofore stated there was no error in refusing instructions three, four and seven, asked by the defendant.
It is somewhat difficult to see how the navigation of the river would be preserved by the construction of a railway along its banks between high and low water. We are not prepared to say that the consent of the city was not essential’ but that such consent had the slightest effect on the plaintiffs’ rights we do not believe. The city had no such power. Pre
The instruction is not erroneous, however much the action of the jury may be. Por the same reason the objection made to the eighth instruction is not well taken. Por the reasons' stated instructions nine and ten, in relation to the rent of dwelling-houses on said premises, were properly refused. It is urged that Fleming v. The Chicago, D. & M. R. Co., 34 Iowa, 353, is in conflict with this view. This is a mistake. In that case damages were claimed by the owner of the fee, and the lots taken by the right of way were remote from other lots, and he sought to recover damages sustained by reason of his ownership of the latter. The plaintiffs seek to recover damages caused by the location of the railway over a parcel of land through which is a street or highway which they have leased for business purposes. Por the purposes of their business the highway may have been an advantage. If their leasehold- interest was rendered less valuable by reason of the
VI. The jury were instructed: “Nor is the defendant entitled to have the particular manner in which the road is constructed considered, in reduction of the damages occasioned by taking the right of way. ” Why this clause of the ninth instruction is erroneous counsel have not advised -us. No authority is cited or argument made in support of the position of counsel. It is, therefore, sufficient to say, as an assessment of damages was asked and in fact made by the sheriff’s jury at the time the road was located, its construction afterward, however well done, could not affect the plaintiff’s rights which before that had accrued.
VII. The petition filed with the sheriff asked that the right of way, one hundred feet wide, be condemned. The sheriff’s jury reported that they had assessed the damages for that' width. The defendant deposited with the sheriff the amount so assessed, and notified the plaintiffs, before or pending the appeal, that they were about to enter on such right of way, and construct the railway.
The court instructed the jury to estimate the damages on the basis that one hundred feet in width was taken. This is claimed to be erroneous, because the defendant had filed a paper limiting the right of way to about one-half of said width. The abstract shows the court refused to permit said paper to be filed. Therefore there was no error in the instruction, for the record failed to show that the defendant had abandoned its right to have any part of the one hundred feet condemned. The error, if any, was in refusing permission to file the paper. This, while assigned as error, is not even mentioned in the argument, and will, therefore, be disregarded.
VIII. In the eleventh and twelfth instructions the defendant asked the court to instruct the jury in relation to possible
X. It is said “the court erred in refusing to allow Goldsbury, Suiter, Lambert et al. to testify, * * * because they were not experts.” There were two Suiters examined as witnesses, W. M. and John. Which one is referred to, or who the others are than those named, counsel have not informed us. The abstract fails to disclose that any objection was made to the testimony of Goldsbury or John Suiter, or that any portion of tlieir evidence was excluded. No such objection as tlie one indicated by counsel was made to the testimony of W M. Suiter, and no part of his evidence was excluded for the reason above stated. Lambert was asked: “Tell the jury what was [the] difference in value of this property before and after the railroad was built?” This was objected to “because the witness was not competent to give an opinion, and asks him to state directly the'amount of damage to the property, instead of asking the value before and after the condemnation. ” The objections were sustained, and the abstract fails to disclose on which ground. The last one,
XI. The jury assessed the plaintiffs’ damages at five thousand dollars, which is said to be excessive. The lease had between five and six years to run. The damages assessed, therefore, amounted to not exceeding one thousand dollars per year. While the amount allowed was liberal, we are not prepared to say that it indicates either passion or prejudice. We, therefore, cannot interfere.
Affirmed.