Cook v. City of Burlington , 36 Iowa 357 ( 1873 )

Cole, J.

— This ease is between the same parties, and relates to indentically tbe same property as tbe case of Cook v. The City of Burlington, 30 Iowa, 94; S. C., 6 Am. Rep. 649. In that case, tbe city claimed to bold tbe title to tbe said accretions, and that it bad tbe exclusive right to control, alienate and convey tbe same for private purposes, and was about to convey tbe same to tbe T., P. & W. E. Co., to be held and used by it as its private property. This court held, that tbe right to make such unqualified disposition did not reside in tbe city, and that it was competent for a court of equity to restrain and control tbe attempt. It was also there said : “ As tbe use, by tbe city, of this reservation and accretion, for tbe purpose of constructhlg thereon a railroad, would be a public use, and not in violation of tbe grant, we can see no legal objection to the city conveying tbe same to a railroad company for right of way, and such other public uses as justify tbe exercise of tbe right of eminent domain.” In other words, and, as applied to tbe special facts of tbe case: Since, under our law, a railroad company has the right to subject this property to certain servitudes and easements, in its behalf, by calling into exercise the power of eminent domain, the city might, by voluntary agreement, convey the same rights for the same purposes.

It will be observed, that the city, by its ordinance, proposes to authorize the execution of a lease, conveying for a term of years just such rights, in general terms, and none other, as it was declared, in the opinion above quoted, the city might do without legal objection. But the counsel for appellees, the plaintiffs, assail this doctrine in a vigorous and earnest argument, and cite, with liberal quotations therefrom, and as supporting their position, the following cases: Williams v. The N. Y. Cent. R. Co., 16 N. Y. 97; State v. The O. & M. R. Co., 7 Porter, 479; Street Railway v. Cumminville, 14 Ohio St. 523; Lackland v. The No. Mo. R. Co., 31 Mo. 180; Railroad Co. v. Schurmier, 7 Wall. 272.

We do not stop to review these cases, nor to cite, even, the numerous cases holding the contrary doctrine, because we feel ourselves concluded by the course of decision and the number of cases in this court in accord with the holding in the case of Cook v. City of Burlington, supra. In the case of Milburn v. Cedar Rapids, etc., 12 Iowa, 246, after citing a large number of cases from different States, wherein it had been held that the courts could not interfere to prevent the construction of railways in or upon the streets of cities, it is said: “ The leading idea or argument running through these authorities is, that the dedication of streets in a city to public use is without restriction, as it respects the right of way, or mode of transit; that they are necessarily subjected to purposes far more extensive than common highways; that the very control given to city governments over their streets carries with it the power of modifying, abridging and enlarging their use in the way that shall best subserve the interest and business of the city; that the laying down and operating a railway tract over a part of a street is not an unreasonable obstruction of its free use, nor incompatible with its original dedication, but rather a new and improved method of using the same, germane to their principal object as a passage-way, marking the progress of civilization in this age, and to which the genius of the law readily accommodates itself, as should also the genius and habits of the people.”

In the case of The City of Clinton v. The Cedar Rapids & Mo. R. R. Co., 24 Iowa, 455, the right of a railroad company to lay down its track and operate its road through the streets of a city, even without its consent and without compensation, was recognized and applied. And in Slatten v. The Des Moines Valley R. Co., 29 Iowa, 148; S. C., Western Jurist, vol. 5, p. 278, it was held, that a railroad company having the right of way granted to it by the city, along one of its streets and upon its established grade, and also the right to construct and operate a bridge across the Des Moines river, had the right to construct its road-bed so much above the grade of the street as was necessary to make a practicable approach to the bridge, and that it was not liable to a property holder on the street, whose property (hotel) was greatly injured by reason of the construction of the road-bed thus above the grade. The case of Tomlin v. The Dubuque, Bellevue & Miss. R. Co., 32 Iowa, 106, is a very strong case in support of the doctrine we affirm in this case. There, the owner of a farm, fronting on the Mississippi river, was, by the construction of a railroad along the bank between high and low-water marks, cut off from access to the river and greatly damaged thereby; it was held, that he could not recover such damages from the railroad company. And the same doctrine was adhered to in Ingraham, Kennedy & Day v. The C. D. & M. Ry. Co., 34 Iowa, 249. It has also been recognized in other cases: The C. N. & S. W. Ry. Co. v. The Mayor of Newton, etc., ante, 299.

In view of these adjudications by our own court, and the weight of authority in accord therewith, as well as the almost direct adjudication of this identical question between these same parties in the former case, we feel constrained to hold that the district court erred in making the injunction perpetual. It should have been dissolved and the action dismissed at the plaintiff’s cost. Reversed.