Gates v. Chicago, St. Paul & Kansas City Railway Co. , 82 Iowa 518 ( 1891 )

GiveN, J.

The petition shows that plaintiff is the owner of two lots on the corner of Sixth and Franklin streets in the city of Waterloo, upon which lots are two dwelling-houses; that the defendant located and constructed its railroad diagonally across Franklin street at an angle of ninety-seven degrees, and that in constructing the same an embankment was made about five feet above the established grade of Franklin street. That in constructing a crossing over said embankment, for the travel on Franklin street, the defendant filled in along said street in front of the plaintiff’s property for a distance of about fifty-four feet, thus forming an incline in front of plaintiff’s property from the grade of the street to about four feet above. That, while no part of the railroad or the embankments or fills touch upon the plaintiff’s property, nor does said property abut upon any part of Franklin street covered' by the upper portions of the embankment and the ties and rails thereon, it does abut upon that part of Franklin street that would have been covered by the lower part of the embankment had it been constructed without an approach, and of the usual width, and does abut upon that part of Franklin street covered by the foot of the embankment and the fill for the crossing as constructed. The plaintiff alleges that because of such location and construction and the operation of the railroad he is damaged, and that the defendant did not cause the injuryto.be compensated, wherefore he asks to recover. The grounds of demurrer are that the facts stated do not constitute a cause of action against the defendant, and for the reason that the law made it incumbent upon the defendant to construct the crossing.

I. It is claimed in support of the demurrer that under section 1262 of the Code the railroad may be constructed ' wJupati’.n of cm^ing: damage». across a street without the consent of the city or town, and without becoming liable to abutting lot-owners under section 454 Section 464 of the Code declares that cities “shall have the power to authorize or forbid the location or laying down of tracks for railways or street railways on all streets, alleys and public places; but 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 said railroad is proposed to be located has been ascertained and compensated ” in the manner provided by law. Code, section 1262, provides that any railroad company “may raise or lower any highway for the purpose of having its railway cross over or under the same.” It will be noticed that compensation is only provided for injury to the property that abuts upon the street upon which the railroad track has been or is proposed to be located. In Morgan v. Railroad, 64 Iowa, 589, it was held that this provision only applies to property that abuts upon the portion of the street occupied by the track. The evident purpose of section 464 is to give to towns and cities the control of their streets, as against the occupation thereof by railroad tracks longitudinally thereon, and to provide compensation to owners of jjroperty abutting upon the part of a street, etc., that has been or is to be occupied by a railroad track to the damage of the property. Ordinarily a track crossing a street does not occupy any part of that street in front of property abutting upon it, and in such case there is clearly no liability. It is equally clear that when the track occupies the street longitudinally there is abutting property and liability for damage thereto. If the track crosses the street at such an angle as that property does not abut upon it, there is no liability; but if it crosses at such an angle as to occupy any part of the street in front of property abutting upon it, this is an occupation longitudinally. Enos v. Railroad, 78 Iowa, 28. We are clearly of the opinion that the city or town may authorize or forbid such a crossing, and that the company is liable for damages to abutting property. Whether cities and towns may forbid a crossing made at such an angle as that there is no abutting property we do not determine, as the question is not necessarily involved in this case.

II. Section 1262 of the Code provides that any railroad company “may raise and lower any * * * highway for the purpose of having its railroad cross over or under the same ; and in such cases said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration.” The appellee contends that under this authority it may locate and lay down its track across streets, etc., without permission from the city or town. As said in Enos v. Railroad, supra, the necessity for giving the cities and towns power to prevent the occupation of their streets longitudinally is obvious. Those reasons, however, do not apply with equal force to the crossing of streets in a way that does not occupy in front of property abutting upon them. It is a well-known fact that to occupy a street longitudinally does interfere with public travel, even to the extent sometimes of totally preventing it, and that the railroad crossing does not hinder travel to such an extent. Considering these two sections together as they now stand, their amendment by the same general assembly, and the reasons for the amendments and for the law as it now is, we are led to the conclusion that cities and incorporated towns have not the power to forbid the location and laying down of railroad tracks across their streets, but may forbid the location and laying down of such tracks when they occupy the street in front of property abutting thereon to the damage of the property. To hold that cities and towns may forbid any crossing of their streets with railroad tracks would put it in their power to prevent the construction of railroads into or through their limits. With the right to cross streets so as not to occupy them in front of property abutting thereon a railroad company may, by acquiring right of way between streets to be crossed, construct its road into or through a city without its permission. If it may not cross streets without permission, then it may be entirely barred from entering or passing through the city, to the prejudice of other parts of the country. Surely such a power was never intended. It is said this may be safely left fco cities, and that their anxiety for railroads win prevent any abuse of the power ; but this does not argue against the unreasonableness of such a power, nor put words into the statute that would confer it.

III. According to the petition, the track crosses Franklin street at an angle of ninety-seven degrees,— an angle varying but seven degrees from a right angle. It cannot be said from the angle alone that the track occupies any part of the street abutted by plaintiff’s property. It does appear that the embankment upon which the ties and rails are laid does occupy a part of Franklin street, upon which plaintiff’s property abuts. Question is made whether the embankment is included in the words “ railway track,” as used in section 464. The damage allowed is not that- caused by the laying down of the rails and ties, but for the location and construction of the railroad. The provision requiring that this damage shall be ascertained and compensated before the track can be located and laid down does not limit the damage to that caused by what is often called the “track,” as distinguished from the “roadbed.” The track of a railroad is not merely the rails and ties upon which cars are run, but it is the “road, course, way” (Webster), and includes all that, enters into and composes the road, the course and way. The embankment upon which the rails and ties are laid is a part of the whole that makes the railroad track. If, because of the angle of the crossing, the height of the embankment, and consequent width of its base, the embankment extends onto a part of Franklin street, abutted by plaintiff’s property, and the property is injured thereby, the plaintiff has a right of action under section 464.

IV. Counsel for the appellee urge, as reasons why the company should not be held liable for damages caused to the plaintiff by constructing the ' ‘ ' ' highway crossing, that it was constructed in obedience to the requirements of section 1262 of the Code, and because it is not part of the railroad track. ' The authority given to appellee by section 1262 is to “raise or lower any * * * highway for the purpose of having its railroad cross over or under the same.” Franklin street was not raised for the purpose of having the railway cross over or under the same, but for the purpose of having it cross on the railway at its grade. This section does not authorize the changing of highways for such purposes, nor are we aware of any provision of the statute that does. Section 1268 of the Code requires railroad companies to construct, at all points where such railway crosses any public highway, good, sufficient and safe crossings and cattle-guards. It is evident that this provision is not intended to apply to streets in cities and towns. The duty imposed upon railroad companies by sections 1262 and 1263, to put and maintain the highway in good condition, has reference only to those that are raised or lowered for the; purpose of having the railway cross over or under the same. We think that in raising Franklin street as and for the purpose it did the company was acting without authority of statute, and that the construction of the highway crossing was not in obedience to the requirements of section 1262. The fill forming the approach to the crossing was rendered necessary by reason of the railroad being located and constructed as it was. While it is true the railroad could have been operated without the crossing, yet, as the crossing was rendered necessary by reason of the construction of the railroad, it would not have been a complete railroad without the crossing. In view of the necessity of the relation that the crossing sustains to the railroad, and the fact that it was constructed -by the railroad company, we are led ' to the conclusion that it is a part of the railroad track, within the meaning of that term as used in section 464 of the Code.

These considerations lead us to the conclusion that the petition does state facts showing a cause of action against the defendant, and that the court erred in sustaining the demurrer. Reversed.