146 Iowa 149 | Iowa | 1910
Plaintiff sues for the double value of two horses belonging to him which were killed upon defendant’s railway track on the night of December 10, 1906. The petition is in two counts. In the first count he avers that the horses were killed at a place upon defendant’s track and right of way where the defendant had a right to fence and failed to do so. In the second count it is averred that the horses were killed upon a public crossing, and that the defendant was negligent in failing to blow the whistle and ring the bell in approaching such crossing, as required by statute.
Prior to the fencing of the right of way, Conyers crossed the railway from the east to the west side -at a place known as the “sand hill,” about a quarter of a mile north of the county line, although no provision was made for such use by the railway company. After the railway company fenced its right of way, Conyers applied for a private crossing. He proposed that it be placed on the county line, on the theory that a public highway might be later established thereon. The railway company acceded to his request, and placed plank between its rails at the indicated point, and built approaches from either side. It also constructed cattle guards and wing fences and opened its right of way fence, and Conyers used this- crossing as a private open crossing for some years. After a few years, however, he voluntarily fenced it off, the location of the fence' at the east side appearing in the plat in the curved
Upon this state of facts, we see no escape from the conclusion of the trial court. The defendant and the pláintiff and his predecessor all acquiesced in the right of the owner, and tenant of the lands in question to the use of this crossing as a private crossing, and as such the plaintiff had a right of access to it. The course of conduct between the parties shows without dispute that the railroad company had permitted the adjoining landholders to have their election either of an open crossing or a closed one. If a closed crossing, the plaintiff was entitled to a gate of access thereto. If he chose to maintain it himself, rather than to ask it of the railroad company, it did not change his right or relation to the crossing. The railway company having once conceded an open crossing and having adapted itself thereto, the plaintiff and his predecessor were in a position, by using th.eir own fence, to change from an open to a closed crossing, or vice versa, at any time, of their own volition. Under these circumstances, we do not' see how it is possible to say that the railway company, in the absence of any demand, was in default for failure to close the crossing. And, if it were, it affirmatively appears that a sufficient fence was maintained by the plaintiff, and
The case of Tyson v. Railroad Co., 43 Iowa, 209, is m point and quite decisive. We quote the following from the opinion in that case: “The plaintiff in this case was maintaining a lane closed by a gate at each end, one on the public road, and the other at his house. So far as the record shows, he was doing so without objection. The lane fences and gates might be regarded as constituting a part of the railroad fence, merely set out upon the landowner’s premises, and maintained by him for his accommodation. These fences and gates constituted as effectual a barrier against cattle not admitted to the lane as they would have done if they had been in the line of the road. While the plaintiff was maintaining the fences and gates, apparently for the purpose of enjoying an open crossing, we think the company was justified in assuming that he preferred an open crossing. It was not for him to complain, therefore, that his cow strayed upon the track.” To the same effect are the following: Craig v. Wabash R. R. Co., 121 Iowa, 471; Fowbel v. Railroad Co., 125 Iowa, 215; Hovorka v. Railroad Co., 31 Minn. 221 (17 N. W. 376).
We think, therefore, that the trial court reached a correct conclusion upon this branch of the case.
No other questions are presented for our consideration.
The order of the trial court must therefore be affirmed.