170 Iowa 687 | Iowa | 1915
Lead Opinion
It appears without dispute that the defendant company acquired a right to the piece of land in controversy, through the exercise of the power of eminent domain; that the land in controversy was condemned by proper proceedings for the use of the railroad company for the building of a line of railway between 'Winterset and Greenfield; that the defendant paid to the plaintiff the full amount of the damages
Defendant presents three propositions for our consideration which it claims should be answered in the affirmative, and, being so answered, work a reversal of this case: First. There can be no abandonment where there has been no commencement of construction. Second. A part of a line of road can be abandoned without affecting other parts. Third. The plaintiff has never been disturbed in his possession.
The first question asked by appellant is, Can there be an abandonment of right of way when nothing has ever been done to take possession? and says, “This involves the further question of when, if there be an abandonment, the statutory eight-year period begins to run, and this in turn depends upon the meaning of the words, ‘when construction is commenced.’ ” This, the defendant says, is the sole question presented by this appeal in its last analysis.
The right of eminent domain is a right exclusively vested in the- sovereign power. Private property can only be taken for public use, and it must appear affirmatively, before private property of an individual can be taken against his will, that the use to which it is put is a public use.
See. 1995 gives to railway corporations the right to take and hold so much real estate as may be necessary for the location and construction or convenient use of its railways. This right is granted it by the state, and it is granted upon the theory that railway corporations are quasi public utilities- that the construction of these roads is- for the convenience and welfare of the public. The right delegated is the right to take private property and hold it for a public use, and the companies are subject to state control under proper legislation. The right to take and the right to hold must depend upon the initial fact that the property is taken or held for public use, and not for private use, although there may be private gain in the operation of the road itself.
Sec. 2015 of the Code provides:
“Where- a railway constructed in whole or in part has ceased to be operated for more than five years; or where the construction of a railway has been commenced and work on the*691 same has ceased and has not, in good faith, been resumed for more than five years, and remains unfinished; or where any portion of any feuch railway has not been operated for four consecutive years, and the rails and rolling stock have been wholly removed therefrom; it shall be treated as abandoned, and all rights of the person or corporation constructing or operating any such railway, over so much as remains unfinished or from which the rails and rolling stock have been wholly removed, may be entered upon and appropriated as provided in the next section. If the railway or any part thereof shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased, and has not been in good faith resumed for eight years, the right of way, including the roadbed, shall revert to the owner of the land from which said right of way was taken.”
Sec. 2016 provides;
“In case of abandonment, as provided in the preceding section, any other corporation may enter upon such abandoned work, or any part thereof, and acquire the right of way over the same, and the right to any unfinished work or grading found thereon, and the title thereto, by proceeding as near as may be in the manner provided in this chapter; but parties who have previously received compensation in any form for the right of way on the line of such abandoned railway, which has not been refunded by them, shall not be permitted to recover the second time. The value of such roadbed and right of way, excluding the work done thereon, when taken for a new company, shall be assessed for the benefit of the former company or its legal representative. ’ ’
As we understand and interpret these statutes, the first provisions of Sec. 2015 may be divided as follows: Where a railway, constructed in whole or in part, has ceased to be operated for more than five years, the right of the party
The right of a railroad company to take private property rests upon the thought that the taking is for a public use, and is to be devoted to a public use. The mere taking for a public use serves no public purpose. The public is served when it is devoted to the use on which the right to take depends. "When the right to take for a public use is given, the obligation to devote it to a public use is created, and that it will be so used is implied. The legislature, then, when it granted to railway companies the right to take private property for public use, undoubtedly intended that it should be put to a public use when taken. It had, therefore, a right to limit the time in which the company, as a pledge of good faith in the taking, should devote it to the public use for which it was taken, and had a right to say to the company exercising this power, “You may take private property for a public use; but if you do so, you must devote it to the public use for which it was taken. If you fail to do this, the property shall revert to the person from whom you took it,” and the state did say to this company, and to all companies, “When you take private property for a railway, and the railway or any part thereof shall not be used or operated for a period of eight years, or if, having commenced its construction, you cease to work it, and do not in good faith resume the work for eight years, the right of way acquired by your condemnation proceedings, and the roadbed shall revert to the original owner.” The statute gives to the condemning company eight years in which to demonstrate its good faith in
Unquestionably, the statute gives to the condemning company eight years in which to demonstrate its good faith in the taking of the private property by devoting it to the public use. If, after five years, it becomes apparent' from its conduct, as recited in the statute, that it has not and is not devoting it to the public use, then the door is open to any other company to come in and complete the purpose of the condemnation by devoting the condemned property to the public use for which it was taken; but if neither the taker nor some other company having authority to act enters upon and devotes it to the public purpose, then it will be deemed that the public purpose for which it was taken has been abandoned, and the property reverts.
The company acquired this right to take this property through the state, and under the statute hereinbefore set out. It lost its right by its failure to devote it to the public use for which it was taken. Its right to take came from the state. It lost its right by failing to comply with the conditions imposed by the state upon the exercise of its right. The sanie power that gave the right is the- same power through which it is taken away.
Sec. 2016 in its provisions has relation to the first part of.Sec. 2015. The last paragraph of Sec. 2015 is an inde.pendent provision limiting the right of a railway company, after condemnation proceedings, to eight years in which to use and operate its road, and in which to devote the property
This, we think, is consistent with the holding in Remey v. Iowa Central Ry. Co., 116 Iowa 133; Gray v. Iowa Central, 129 Iowa 68.
It is contended that the holding in the Remey case is inconsistent with what was said by this court in Noll v. Ry. Co., 32 Iowa 66; Dubuque & D. Ry. Co. v. Diehl, 64 Iowa 635, and C. M. & St. P. Ry. v. Bean, 69 Iowa 257. As to this, we are prepared to say that in so far as these cases are inconsistent with the holding in the Bemey case, they are hereby overruled.
The main questions considered are so fully discussed in the previous ease of Remey v. Iowa Central Ry. Co., supra, that we do not feel that anything farther need be said, and the case is therefore — Affirmed.
Dissenting Opinion
(dissenting). — I. This case is peculiar in its facts, and in the relief asked and granted. It appears that plaintiff, who has in no manner been disturbed in his possession of a strip of land condemned for a railway, and who received full compensation, not only for the strip, but for all damages incident to the permanent use of the right of way for railway purposes, is permitted not only to use the land
Plaintiff is in a court of equity asking that the title be decreed in him, because it is equitable for him to have it under the circumstances disclosed. I do not think it either right or equitable that he should have both the land and the money; and unless there be some express statutory provision giving it to him, I think he should be defeated.
Plaintiff does not claim an abandonment save under Sec. 2015 of the Code, referred to by the majority; and that his petition does not make out a- case of abandonment under the general law is clear.
In the absence of statute, the mere fact that a railway is not built over a condemned strip of land for a period of thirteen years is not an abandonment. McClain v. C. R. I. & P. Ry. Co., 90 Iowa 646; Barlow v. C. R. 1. & P. Ry. Co., 29 Iowa 276. And this is especially true where the owner of the servient estate does no act to prevent its use. Noll v. D. B. & M. R. R. Co., 32 Iowa 66, and cases cited.
Plaintiff has done nothing to prevent the actual use of the land; and according to the testimony, has never been disturbed in his possession. If his claim of title were founded on adverse possession, which presumes a grant, his action would necessarily fail.
II. But it is said that Secs. 2015 and 2016 entitle plaintiff to the relief demanded. These sections do not, to my mind, cover the case: first, because- work was never commenced upon the strip of land in controversy; and, second, because plaintiff has never refunded the purchase price of the land,
This matter has been thoroughly considered in many cases which have heretofore reached this court in other forms, and they are not in harmony. See cases heretofore cited, and C. M. & St. P. Ry. Co. v. Bean, 69 Iowa 257; Dubuque R. R. v. Diehl, 64 Iowa 635; Remey v. R. R., 116 Iowa 133; Fernow v. R. R., 75 Iowa 526. Other cases, not officially reported, were affirmed by operation of law because of an equal division of the court. My views upon the statutes now under consideration are fully expressed in the dissenting opinion in the Remey case, supra.
Aside from this, our difficulties in the past are not necessarily involved here. This case involves the single proposition: May one who has had full pay for his land, taken-for railway purposes, after the lapse of eight years, no work having been done upon the land at any time, have his money and the use thereof, and at the same time have a decree quieting title to the land itself on the theory that he has again become the owner of it by reason of abandonment ? I do not think there is any case so holding, and am of opinion that the petition should have been dismissed.
I would therefore reverse the judgment.