178 Iowa 1296 | Iowa | 1917
‘ ‘ This railroad company is to give said Whitham a grade crossing at a point west of the bridge over Mitchell Creek where the land is at grade with the track, just east of a line with the fence running south in the south 40 acres, with wing fences, within a reasonable time. They also agree to pay him the sum of $800.
“Said company agrees to allow Whitham to put a gate in the company’s fence on the north side at the right of way and east of the wing fence that runs to the west side of said bridge, so as to let his cattle go back and forth under the bridge to his land on the north, at his own expense and risk.
“And the above is in full settlement and satisfaction of the above entitled action and in full for any claim for damages arising out of the alleged non-performance of contract for under-crossing under said bridge over Mitchell Creek.
“Signed December 17, 1902.”
At the same time, and as part of the same transaction, plaintiff executed the following receipt:
“December 18th. To amount agreed upon in full settlement of the suit of Chas. W. Whitham v. C., B. & Q. R. R. Co. and C., B. & Q. Ry. Co., now pending in the district court of Jefferson County, Iowa, wherein plaintiff seeks to compel the defendants to construct an under-crossing for him in accordance with a written agreement made with the C., B & Q. R. R. Co., of date June 24, 1899. In consideration of this payment, Whitham releases the railroad company from all obligations imposed upon it under said contract of June 24, 1899, and agrees to accept in lieu of the crossing therein provided for a crossing at grade over the tracks of the railroad company, such crossing to be constructed with wing fences and gates, ■ but without cattle guards, as -shown by*1299 memorandum of agreement, copy of which is hereto attached. Each party to pay their own costs.
“Charge: Const. R-w, No. 2, Fairfield to Beckwith.
“Received $800, in full payment of the above account. In consideration of the payment of said sum of money, I, Chas. W. Whitham, of Fairfield in the county of Jefferson and state of Iowa, hereby remise, release and forever discharge the Chicago, Burlington & Quincy Railroad Company of -and from all manner of actions, causes of action, suits, debts and sums of money, dues, claims and demands whatsoever, in law or equity, which I have ever had or now have against said company, by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort.”
This agreement supersedes and takes the place of all other agreements entered into between the parties, and by this agreement, the rights here in controversy must be determined. After this stipulation was entered into, on December 17, 1902, the plaintiff claims that he accepted a crossing under the bridge for his cattle; that the crossing was at that time on a level with the land, both on the north and south sides of the bridge; that there was then a passageway about 25 feet wide, from the west abutment of the bridge to the top of the west bank of Mitchell Creek. This afforded a nice and safe passage for plaintiff’s cattle. The creek comes from the northeast, and, after passing under the bridge, runs almost due south. After signing the stipulation, plaintiff leveled this passageway for the use of his cattle. He had then a passageway about 12 feet wide. This bridge remained standing upon piers, and we presume the passageway remained- open until 1910, when a permanent concrete abutment was put in there, about 14 feet wide at the bottom and about 3 feet at the top.
The placing of this abutment, it is claimed, obstructed the particular passageway selected and used by plaintiff, and rendered the passage of cattle under.the bridge, to say
This brings us to a consideration of the contract and the rights acquired under the contract. ■ ■
It will be noted that a controversy had arisen between the plaintiff and the defendant over his right to have the defendant keep and maintain a free passageway for him, under his contract of June 24, 1899. In that contract, the defendant company agreed that the plaintiff should have a suitable underground crossing for passage, both for stock and for hauling goods, just like the one on the old right of way. That one, the record shows, was a good, safe and proper passage for cattle and for transporting loads. When the plaintiff undertook to enforce this agreement, he was met
In that provision of the contract in which plaintiff is allowed to put a gate on the company’s fence, on the north side, so as to let his cattle go back and forth under the bridge, the company assumed no duty to the plaintiff to keep the passageway under the bridge free from obstruction, to the end that it might be so used by the plaintiff. It assumed no affirmative duty to keep the passageway under the- bridge in the same condition in which it was at the time the contract was made. At that time, the bridge was in the process of construction. It was afterwards constructed, but on piling.
The plaintiff here is not relying on any statutory duties, or seeking to enforce any statutory rights. He has but the permissive right found in the contract. At the time this contract was made, the defendant was the owner of this right of way. This privilege is no part qf a reservation made in the. conveyance of the right of way. "Whatever reservation was made at the time" the right of way was acquired was abandoned, and this contract substituted in -its stead. For
He does not ask for any mandatory order, writ or process- against the defendant, except as it involves this concrete pier. The prayer of the petition is that a mandatory writ of injunction issue, compelling defendant to restore said passageway and abate said nuisance, as provided by law. The nuisance referred to is the concrete pier.
It is plain, therefore, that this relief cannot be had. The defendant owed the plaintiff no duty not to build this pier at the place where it was built. It owed an active ‘duty to the public to maintain the bridge in a safe condition for its use as a public carrier. The record shows that the building of this concrete pier was á necessary thing to be done in the interest of public travel. The plaintiff would have the court order the company to remove this pier,-abate it as a nuisance, order the passageway under the bridge restored to its original condition, because, he says, he has used that particular part of the passageway himself for seven years under the permissive right in his contract. As the company owed him no duty not to put the concrete pier where it is, the law imposes upon them no duty to remove it. In no sense is it a nuisance. In no sense is it an obstruction to the exercise of any contractual right acquired by the plaintiff.
As said in Hartshorn v. Chicago G. W. R. Co., 137 Iowa 324:
“It is no answer to say that the company should have realized all this when making the promise, for the public is*1304 too deeply concerned in the safe operation of the railway and the protection of life and property to tolerate the continuance unnecessarily of a known peril to either. Nor should improper agreements in the interests of private convenience or to avoid outlay of money be allowed to unduly interfere with the public necessities of rapid (safe) transportation. Experience often demonstrates error in plans for the future, . . . , and when these are discovered, the door for adequate correction, when the public is so vitally concerned, ought not to bo closed.”
See, also, State v. Burlington, C. R. & N. R. Co., 99 Iowa 565; Schrimper v. Chicago, M. & St. P. R. Co., 115 Iowa 35.
Our conclusion is that the plaintiff is not 'entitled to the relief prayed for, and that the defendant has violated no duty to the plaintiff for which it should respond in damages. The ease was rightly decided in the court below, and is — ■ Affirmed.