Heath v. Des Moines & St. Louis R'y Co. , 61 Iowa 11 ( 1883 )

Day, Ch. J.

1. cities and towns: ordin¡mee:coneli action of word “along.” — I. The plaintiff insists that the ordinance in question does not confer upon the defendant railroad eompany any authority to construct its line of road , , , , upon the alley between the plaintiff's lots, and L J 1 ' claims that the only authority conferred is to construct its road by the side of the alley, at the point in question. The ordinance authorizes the defendant to construct its road along the alley in question. In other portions of the ordinance, the defendant is authorized to construct its road on, over ancl along certain alleys. It is claimed that this change of language is significant, and must have been employed with a purpose. We think, however, that the words on, over and along were all employed synonymously in this ordinance. The words on and over, as here employed, are clearly synonymous. The word along does not necessarily mean by the side of. We say “the troops marched along the highway,” by which we mean that they marched on or over, not by the side of, the highway. We cannot think that the city council, by the change of phraseology, intended to authorize the defendant to construct its road by the side of the alley, on private property, over which the city had no control. We rather think that the words were employed as synonyms, and that the dropping of two of them in the part of the ordinance, in question possesses no significance whatever.

2streetsand tagnseofto" SStruedl II. It is claimed by the appellee that, if the ordinance gives the power to occupy this alley, the council exceeded its authority in passing the ordinance. In support Positi°n counsel refer to the following provisions of the Code:

“Seo. 464. The council shall also have power to authorize or forbid the location or laying down of tracks for railways and street railways on all streets, alleys and public places.”

“Sec. 527. The city council shall have the care, preservation and control of all public highways, bridges, streets, alleys, public squares and commons within the city, and shall cause the same to be kept open and in repair, and free from all nuisances.”

“Sec. 1262. Any such corporation may raise or lower any turnpike, plank road, or other highway, for the purpose of having its railway cross over or under the same, and, in such casé, said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration at such place of crossing.” ^

It is insisted that section 527 of the Code requires the council to keep all alleys open and in repair, and that no authority can be conferred, under section 464, to lay a railway track in an alley, if it will have the effect to close the alley for the purposes contemplated in its dedication, so that it cannot be kept open. It is evident, however, that this process of reasoning would nullity so much of section 464 as empowers the council to authorize the laying of a railway track in an alley, for the width o'f alleys in all of our cities is such that the construction and operation of a railway therein must interfere, to a greater or less extent, with the ordinary use of the alley. These sections must be so construed, if possible, as to give force and effect to both. This may be done by holding that the duty of beeping the alleys open and free from all nuisances applies to all obstructions, exceq>t those which the city is specifically empowered to authorize. The protection to the owner of adjoining property is found in other provisions of section 464, which provides that “no railway track can thus be located and laid down, until after the injury to the property abutting upon the street, alley or public places, upon which such railway track is proposed to be located and laid down, had been ascertained and couqDensated, in the manner provided for taking private property for works of internal improvement in chapter 4 of title 10 of the Code of 1873.”

The appellee further relies upon section 1262 of the Code, and insists that it is unreasonable to provide that a railway cannot cross over or under a.highway without putting it in as good repair and condition as before, and at the same time authorize it to pass longitudinally over an alley, in such way as to render its after use by the public utterly valueless. The answer to this position is found in the fact that, under section 1321 of the Revision, for which section 1262 of the Code is substituted, a railway could be constructed over or across a highway, without authority of the city council, or the payment of damages, whereas now, under section 464 of the Code a railway can be constructed lengthwise upon a street or alley only by the authority of the city council, and the payment of damages to the lot owners. The theory of the law is that-the necessity of obtaining permission from the city council to occupy the alley, and -of compensating adjoining owners for damages inflicted, will operate as a sufficient check upon the company.

____ fermicVof61" equity. III. It is insisted, however, that if section 464 empowers the city council to authorize the construction of a railway track upon an alley, and the council, by the passage ^ie ordinance in question, intended to confer upon defendant the right to construct its railway upon the alley between the plaintiff’s mill and elevator, the present case is a proper one for the court to exercise its equitable control to prevent the abuse of the power, under the doctrine recognized in C., N. & S. W. R’y Co. v. Mayor, 36 Iowa, 299 and Davis v. C. & N. W. R’y Co., 46 Id., 389.

This doctrine of equitable control originated from the construction which had been placed upon section 1321 of the Revision, that a railroad might occupy a street lengthwise, without the consent of the city, or the payment of damages. The doctrine has no application to section 464 of the Code, which requires both the consent of the city and the payment of damages. Under the exercise of the right of eminent domain the defendant, upon the payment of the damages occasioned, might appropriate the plaintiff’s mill or elevator, or both of them. A court of equity could not restrain the defendant from such appropriation. Upon what principle, then, can a court of equity restrain the defendant from proceeding ■ under the statute, and the authority conferred by the city ordinance, to appropriate the alley between the elevator and mill. The plaintiff will be compensated in the damages which the defendant must pay for the injury which it inflicts. If the appropriation of the alley renders the mill and elevator useless, this fact must be considered as an element of damage.

It is said, however, that this court recognizes the right to exercise equitable control after the adoption of section 464 of the Code, in the case of Davis v. The C. & N. W. R’y Co., 46 Iowa, 389. That case arose in the city of Council Bluffs, which was operating under a special charter, and at a time when section 464 of the Code did not apply to such cities. See Acts of Eighteenth General Assembly, chapter 96. Many authorities have been cited by appellee as to the right of a railroad company to occupy the streets in a city with its tracks, but we think that question is determined in this state by the provisions of section 464 of the Code. Whether under the provisions of this section the city council could surrender a street entirely to the use of a railroad company, is not presented in this case. The difference between the uses of a street and of an alley is apparent to all, and needs only to be suggested.

_._. Siorprivate purposes. IY. Appellee insists that the plaintiff had a prior grant from the city to lay a track or switch upon the alley to his elevator and mill, and that this prior grant cannot be interfered with by any subsequent grant raiir0ad company. Reliance is placed upon Clark v. Blackmar, 47 N. Y., 150. In that case it was not decided that the city council had power to authorize the streets of a city to be occupied by a railroad track for the benefit of private property or its owners. It was expressly held that that question was not in the case. See page 156. It was found that the track had been laid by the Grand Trunk and New York Central railroads, and that a very considerable business as common carriers for a great number of persons was carried on by these companies over said track. In this case the track has not been completed, and the evidence does not show how much has been constructed, nor that any portion, of the 'track has been laid in the alley in question. We cannot find, from the case as presented, that when constructed it can be used for any other purpose than the conducting of the private business of the plaintiff. We do not think the statute confers upon the city council authority to devote the streets or alleys to a railway track for the private benefit simply of an individual.

In our opinion the injunction was improperly granted.

Reversed.