State ex rel. Patrick v. Chicago, Burlington & Quincy R'y Co.

| Iowa | Dec 18, 1885

Seevers, J.

The highway in question in this case was established after tbe defendant had constructed its road, and the only question to be .determined is whether the highway has been lawfully established; and this depends on the question whether the defendant was entitled to notice other than by publication of the proposed establishment of the highway. The defendant is a foreign corporation, but it has at all times had station or ticket agents within the county. The notice contemplated in section 936 of the Code was not served on any of the defendant’s officers or agents, but was published as therein provided. Before a highway can be lawfully established that section provides: “A notice shall be served on each owner or occupier of land lying in the proposed highway, or abutting thereon, as shown by the transfer-books in the auditor’s office, who resides in the county, in the manner provided for the services of original notices in actions at law, and such notice shall be published,” etc.

The defendant owned its right of way, but it does not appear that its ownership is shown by or can be ascertained from the transfer-books in the auditor’s office. Therefore the defendant, as owner, was not entitled to any other notice than was given. This was held in Wilson v. Hathaway, 42 Iowa, 173" court="Iowa" date_filed="1875-12-16" href="https://app.midpage.ai/document/wilson-v-hathaway-7096645?utm_source=webapp" opinion_id="7096645">42 Iowa, 173, as to a resident owner of an equitable title which was not shown by the transfer-books.

It is, however, said that the defendant is in possession of its right of way, and is therefore an “occupier,” as contemplated by the statute, and as such entitled to notice. In Alcott v. Acheson, 49 Iowra, 569, it was held that a tenant, holding under a lease, who cultivated the land, and -who did not reside thereon, but did reside in the county, wras entitled to notice, because he was an “occupier.” If, however, the tenant in that case had been a non-resident of the state, service of notice on him other than by publication would not have been required. It is only persons who are residents of the county who are entitled to notice. Is the defendant a resident of this state? We think not. It is a foreign corporation, and must be, in the absence of an obligatory statute providing otherwise, a resident of the state under the laws of which it was organized. The occupier under the statute who is entitled to notice is one who personally resides in the county. The statute does not contemplate an occupier who is represented only by an agent, and who, through such agent, is in the occupation of the land, and himself an actual resident of some other state. The fact that suits may be brought against the defendant in this state by the service of notice on its station-agents does not make it a resident. It is not, because of such statutory provision, a resident of Mills county, and therefore entitled to notice under the provisions of section 936 of the Code.

Affirmed.