89 Iowa 317 | Iowa | 1893
The motion, to dissolve the injunction was tried upon affidavits in support of questions of fact tending to show the entire situation of the lot and the depot grounds, and the necessity for the plaintiff company to use the strip in question, at present, in the performance of its contract with the public, and also the probability of such use being required by the future growth of the city. The appellees insist that equity will not entertain the suit to determine the merits of the case presented, because the plaintiff has other available remedies to which it should resort, and among them it is urged that the proceeding which it seeks to enjoin affords such a remedy.
The particular ground upon which the aid of a cdurt of equity is invoked is that the proceedings to condemn the land are unauthorized, because the land is already devoted to a public use, and, as we understand, that it would be unlawful to proceed to condemn it, even if needed by the railway company. The proposition is one in dispute between the parties, and is to be settled by adjudication. Could it be properly determined in the condemnation proceeding? It seems to us that the question is quite definitely answered in K. & N. W. R’y Co. v. Donnell, 77 Iowa, 221. The appellant insists that the ease is not in point. In that case Donnell instituted the condemnation proceedings to recover the value of land taken by the company, and the company invoked the aid of a court of equity to restrain him from maintaining the proceedings because unauthorized, and a reason claimed why the action was not authorized was that the company, and not Donnell, was the owner of the land. Of course, if the
The order of the district court dissolving the injunction is affirmed.-