Beyer v. Chicago, Rock Island & Pacific Railway Co.

Stevens, J.

unSgM ofrtway. Plaintiff is the owner of a one-acre tract of land, somewhat triangular in form, located on the east side of and between a highway known as the Waterloo and LaP'orte City road, and the right of way of the defendant railway company. She derived title thereto, through several mesne conveyances, from James Miles, who was the owner thereof, and planted a large number of fruit and ornamental trees thereon in 1893, several of which were located upon a narrow strip now claimed by the defendant as a part of its right of way; and this strip forms the subject of this litigation. The defendant acquired its right of way by deed, which conveyed to it a strip of land 25 feet in width on each side of the center line of the railroad, to have, hold, and enjoy forever, for any and all uses and purposes in any way connected with the construction, preservation, occupation, and enjoyment thereof, provided, however, that, in case defendant ceased to permanently use its road, or if same should be abandoned or the route changed, then the land granted should revert to the grantors, or to their heirs or assigns.

The strip of land in controversy lies immediately west of defendant’s right of way fence, and at its widest place is approximately 4 feet and 8 inches in width. On June 3, 1914, defendant’s employees entered and cut the trees upon the disputed strip, and plaintiff claims that they also cut a cherry tree upon her premises outside thereof. Suit was brought by her for damages on account of the removal of the trees. Defendant filed answer and cross-petition, setting up its right, under the above deed, to a strip 25 feet in width as a right of way on each side of the center of its road, and claimed the right to possession of the disputed strip as a part thereof, subject only to the right of reversion, as above stated. Upon the issues joined, the cause, upon motion of defendant, was transferred to and tried in equity.

Plaintiff’s claim to the disputed tract is based upon adverse possession and acquiescence by defendant in the right of way fence for more than ten years, as the true boundary line between its right of way and plaintiff’s premises.

.It was stipulated by the parties upon the trial that the right of way fence at the point nearest the highway crossing was 20 feet and 1 inches from the center of defendant’s road, and, at a point 6 rail lengths south thereof, 21 feet and 8 inches from the center of the track, thus leaving a narrow strip of defendant’s original right of way of approximately á feet in width outside of its right of way fence. The stipulation further provided that plaintiff and her grantors had cultivated the ground up to the fence, and had gathered the fruit growing thereon, and that they had been in possession thereof during all the time since the fence was erected, many years ago.

Testimony was offered by plaintiff to the effect that, about 15 years before this controversy arose, and while Miles owned the same, defendant’s employees attempted to change the right of way fence at the place in question, and dug a string of post holes on her premises 50 feet west of the center of defendant’s track, but that, upon investigation, it was found that the right of way deed conveyed a strip to defendant of only 25 feet in width on each side of the center of its road; and the proposed erection of the fence along the line of the post holes was abandoned, and the fence reconstructed on its original line.

Defendant’s track approaches the premises of plaintiff from the south in a northwesterly direction; but, before reaching the same, curves farther to the northwest, and continues to curve until the crossing over the Waterloo and LaBorte City highway is passed. There was a large number of trees standing on the north end of plaintiff’s premises, which extended from the railroad right of way to the highway fence. The reason assigned by defendant for removing the trees from the disputed strip is that they were thick, and the longer branches extended over the right of way so far that they touched the cab of a passing engine, thereby obstructing the view of travelers approaching the highway crossing from the south, so that they could not see a northbound train until the crossing was reached. It was claimed by defendant that the obstruction caused by the trees rendered the crossing dangerous, and that several fatal accidents had occurred there. The evidence does not, however, show that they were due to the presence of the trees; but the crossing was doubtless rendered more dangerous by them, and same were a menace to the safety of travelers upon the highway.

The contention of counsel for appellant is that it never abandoned the strip in controversy, and that, in so far as the same was occupied and used by plaintiff and her grantors, the use was permissive only, and that possession thereof by appellant was not taken until it became necessary, in the operation of its road; that the doctrine of adverse possession and acquiescence are not applicable to the facts; that plaintiff did not hold possession of the disputed strip adverse to the defendant; that the right of way fence was not on the line, nor was it ever so treated; and that plaintiff acquired no right or title to said strip by reason of the long-continued occupancy and use thereof by herself and grantors.

Both parties rely upon former decisions of this court to sustain their respective theories, and we will, therefore, briefly review a few of the cited cases. There is considerable lack of harmony in the decisions of other jurisdictions; but this court announced, the rule applicable to the facts of this case in Barlow v. Chicago, R. I. & P. R. Co., 29 Iowa 276, which has been followed up to the present time, as appears from.what follows. In that case, it was held that the statute of limitations does not apply, where the easement was acquired by deed; and that no length of mere non-user will operate to impair or defeat the right of way; and that the use of the premises under consideration by the plaintiff, as shown in that case, for the statutory period, was not adverse to the rights of defendant.

2. boundaries : rigtn puWic The facts in the case at bar and those in Slocumb v. C., B. & Q. R. Co., 57 Iowa 675, are quite similar. In that case, plaintiff had occupied a portion of the defendant’s right of way outside of its right of way fence for more than ten vears, had planted the same to shrubbery and fruit trees, and had done grading and Ailing thereon, for the purpose of improving and beautifying the same. In that case, the court held that, as the defendant ivas entitled to a right of way 100 feet in width, or 50 feet from the center of the railway track on each side, plaintiff was charged with notice of the extent of defendant’s right of way, and could readily have ascertained the true width thereof. The court said:

“The plaintiff’s possession was not adverse to, nor inconsistent with, the right of defendant to occupy the whole right of way, whenever it became necessary or desirable for it to do so.”

Chicago, M. & St. P. R. Co. v. Hanken, 140 Iowa 372, and Iowa, Cent. R. Co. v. Homan, 151 Iowa 404, are cited in the briefs of both appellant and appellee, bnt principal reliance is placed by defendant upon our holding in Helmick v. Davenport, R. I. & N. W. R. Co., 174 Iowa 558.

The court, in Chicago, M. & St. P. R. Co. v. Hanken, supra, discusses the conflict in the authorities in other jurisdictions, but re-affirms the doctrine of Slocumb v. C., B. & Q. R. Co., supra. We quote the following from the opinion:

“The line of decisions last referred to declares that possession by the abutting owner not inconsistent with the existence of the easement is permissive only, and cannot bar the claim by the company when the property is required for the prosecution of the company’s business. Southern Pac. Co. v. Hyatt, 130 Cal. 240 (64 Pac. 272, 54 L. R. A. 522); Railroad v. French, 100 Tenn. 200 (43 S. W. 771, 66 Am. St. 752); Spottiswoode v. Railway, 61 N. J. L. 322 ( 40 Atl. 505). See Warvelle on Equity, Section 471. The point was not determined in Chicago, S. & St. P. R. Co. v. Snyder, 120 Iowa 532; but in Slocumb v. Railway, 57 Iowa 675, the doctrine that property taken for the public use cannot be encroached on by the abutting owner so as to deprive the railroad company of title, save by appropriation absolutely inconsistent with such use when needed, finds approval. This doctrine is quite as applicable to depot ground as right of way where condemned for such use or actually occupied for that purpose. The difference to be noted is this: The statute determines the width of a right of way, while the extent of depot ground depends on the necessities of the company.”

The court emphasized the fact that the land in controversy had never been devoted to public use, and it was not shown that same would ever be needed by the plaintiff in the transaction of its business, and, therefore, the doctrine of the Slocumb case was not applicable.

The court, in Iowa Cent. R. Co. v. Homan, supra, said: “In the case at bar, as already indicated, the company never made any use of tlie strip in controversy, public or otherwise. * * There is no attempt made in the evidence to show that the company will have any public use for this strip in the future. It is said in argument that the company needs it for the purpose of trimming or cutting trees thereon which obstruct the view of the railway crossing. Plaintiff offered no evidence, however, on that subject. We have, therefore, a clear case, not only of want of actual possession, but an absence of necessity for public use, either past or future. And we see no way to distinguish the case from the Hanken case, supra.”

The decision in the above case was by a divided court, the division, however, turning upon the question whether the doctrine of the Slocmnb and other cases was applicable to the facts under consideration, and not upon a difference in opinion as to the soundness of the holding in the Slommb case. The decision of the court in the Hehnich case is not inconsistent with the doctrine of the above cases. It must be read and analyzed with reference to the peculiar facts involved. The conclusion reached by the court is entirely sound.

There is little controversy in the facts in the case at bar, but it is vigorously insisted by counsel for appellee that the evidence offered to show the alleged dangerous character of the crossing and that the disputed strip was necessary in the operation of appellant’s road is wholly immaterial. The deed in Barlow v. Chicago, R. I. & P. R. Co., supra, contained provisions similar to those in the deed conveying the right of way to defendant. The court in that case held that the legal effect of the instrument was to convey only a right of way. The trees, consisting of cherry, plum, and maple, were planted in 1898. For several years, the defendant’s employees eut the overhanging branches, so as to remove the obstruction, so far as possible, without cutting the trees. That the trees materially obstructed the view of an approaching north-bound train at the highway crossing is apparent from the evidence; and, it need not be added, this necessarily contributed, to some extent at least, to render the crossing more dangerous. Railway companies are not required to fence their right of way in this state, but only their tracks. Section 2067, Supplement to the Code, 1913. The requirement of the statute that their tracks be fenced is intended for the protection of stock, and the right of defendant to the use of its entire right of way, whenever the same becomes necessary in the operation of its road or the transaction of its business, is not in any way affected thereby. In fact, a railroad company commonly uses, especially where there is but a single track, only a small part of its right of way, but it is given the right by statute to the use of a strip 10 01 feet in width, if necessary, in the transaction of its business. The evidence, however, in this case shows that the right of way at the place in question was but 50 feet in width. It is not contended that the disputed strip is not a part of the right of way granted to defendant. The doctrine announced in the Barlow case has been consistently adhered to from the time of its announcement to the present day. A clear distinction exists between the facts in the cases in which the doctrine of the Barlow and Slocumb cases was not applied, and the facts in the case at bar. The possession of plaintiff and her grantor's was clearly permissive only, and was not adverse to the defendant nor inconsistent with its right to the use thereof whenever the public safety and the operation of its road and the transaction of its business rendered the occupation thereof necessary. The evidence offered by defendant upon this question was, therefore, material and competent.

So far as the evidence discloses, the attempt upon the part of the employees of defendant to erect a right of way fence' 50 -feet west of the center of its track, while Miles owned the land, was made upon the belief that the right of way was 100 feet in width, and that the fence was reconstructed upon the original line, without measurement or survey to determine the exact line. Evidently, the fence gang rebuilt the fence upon the original line because it could not be removed as contemplated, and not in recognition of some pretended claim.on the part of Miles to the ownership of the disputed tract.

It appears from the evidence that one of the fruit trees destroyed was upon premises belonging to plaintiff. The evidence relates to the damages claimed by plaintiff on account of the removal of the tree in question, and the large number of trees from the disputed strip. We are, therefore, unable to determine the extent of plaintiff’s damages on account of the removal of the tree from her premises. The decree of the court below, for the reasons above pointed out, must be reversed, but the cause will be remanded to the district court for further proceedings in harmony with this opinion, to determine plaintiff’s damages. — Reversed and remanded.

Ladd, Gavnor, and Sadinger, JJ., concur.