43 Iowa 26 | Iowa | 1876
As it is not claimed by the appellant that greater rights were acquired by the plaintiff’s deed than would have been acquired by proceedings in condemnation, we shall assume for the purposes of this opinion that they were the same. The question, then, which we are called upon to decide is this: Are the damages resulting to the land-owner from the diversion of a natural stream of water, where such diversion is required by good railroading and a reasonably prudent construction of the road-bed, to be regarded as having entered into and been covered by the condemnation and appraisal? If this question is answered in the affirmative, the defendant, under the testimony offered and excluded, was justified in diverting the stream in question.
In Sabin v. Vermont Central Railway Co., 25 Vt., 363, the plaintiff, who was the owner of land through which the defendant had acquired a right of way, claimed to recover for damages sustained by reason of rock being thrown upon
In Proprietors of Locks and Canals v. The Nashua & Lowell Railroad Co., 10 Cush., 385, Chief Justice Shaw undertakes to state what are the proper subjects for the assessment of damages in condemning a right of way, and among them he enumerates “ the draining of wells, and the diversion of water courses, so far as they are the necessary results of suitable and proper works to accomplish the enterprise, and secure the public easement.” In Aldrich v. Cheshire Railroad Co., 1 Foster, (N. H.), 359, the declaration alleged “ that upon the plaintiff’s farm in Westmoreland, there was a permanent spring which supplied the plaintiff’s house and barn with water, and irrigated his land, and that the defendant by excavations diverted the water from its accustomed course to the injury of the plaintiff.” The evidence showed that the
Do the foregoing authorities support the doctrine contended for by the appellant in- this case? If they do, and if such is the law, we see no way to avoid the conclusion that it is the duty of commissioners, appointed to assess the damages for a right of way, to include in the appraisal all damages which the land owner might sustain, by the diversion of a stream crossing the railroad track, whether such diversion would result in depriving a farm of stock water, or in the destruction of a mill and mill privilege. The only way to protect the land-owner against what the company might do, would be to assume that the company would prefer to pay the damage, however great it might be, and have the privilege of cutting a new channel and filling acrdss the stream, rather than to bridge. It may be said that the commissioners should assess damages for'diverting the stream, whenever, in their opinion, it will become necessary for the company to divert it, and not otherwise. ' Rut this rule would be impracticable for two reasons: 1. The question of diverting a stream and filling to save the cost of bridging is a question of civil engineering. 2. There is no necessity in any case of diverting a stream to save bridging, except in view of greater economy and safety. As to economy, that would depend largely upon the damages which the company should -be adjudged to pay for the privilege of diverting it. In. this case the company paid one dollar for whatever rights were acquired. Had there been an assessment of damages with a view to the stream’s being diverted, the damages for the diversion might have been adjudged to be such that the company would have deemed it far from economical to pay them and take the privilege. It is not certain, then, whether a railroad company wants to take, and pay for, the privilege of diverting a stream or not. Here then is the difficulty in the rule which appellant contends for.
It wants the privilege of blasting through rock wherever it ■may be necessary, and at the risk of throwing pieces upon the adjacent land, and it offers to pay for these privileges whatever the commissioners shall adjudge to be right. All these things are implied in the company’s application for a right of way, and hence it will be presumed that they were considered by the commissioners. But when the company comes with its application for a right of way across land which is crossed by a stream of water, does the company by necessary implication say that it wants to take, and pay for, the privilege of diverting it, when such diversion would destroy a mill privilege, or even the land-owner’s stock water? "We think not. If there is no necessary implication in the application that the company asks, and offers to pay for such a privilege, then the appellant’s theory is not maintained, that proceedings in condemnation, or deed of right of way, necessarily grant such privilege.
As to the question of safety to life and property, it may be conceded that as a general rule safety is promoted by the reduction of the number of bridges. But such reasonable degree of safety as the public requires is secured upon railroads with bridges as well as without. /
There is nothing, then, either in the matter of economy,'or safety, that enables us to say that railroad companies by implication apply for the right to take, and pay for, the privilege of diverting whatever stream of water they cross if they may save a bridge by so doing. There might be a ' ,f.e where the
We must presume that Chief Justice Shaw had in mind such a case, in what we have quoted from his opinion in Proprietors of Locks and Canals v. Nashua & Lowell Railroad Co. At all events the case before him was not a case of the diversion of a stream, nor did it strictly call for an enumeration of the injuries that would by implication be covered by the commissioners’ assessment of damages. Our attention has been called to no case which seems to us to conflict necessarily with the views which we have above expressed.
Affirmed.