Bentley v. Wabash, St. Louis & Pacific R'y Co.

16 N.W. 104, 61 Iowa 229

• Court: Supreme Court of Iowa
• Decided: June 11, 1883
• Status: Published

Opinion

Day, On. J.

— Tlie decree of tlie court below must be affirmed for several reasons.-

First. Tlie preponderance of the entire evidence shows that the road was in fact built practically upon the line of the survey existing'when the deed was executed, and which, the plaintiffs testify, is the line upon which the road was to be constructed. The evidence shows that the constructed line does not vary from this surveyed line more than from five to ten feet.

- Second. The abstract of. the appellees shows that the condemnation, proceedings, upon which the plaintiffs base their right to - relief, were, upon certiorari proceedings, declared illegal .and void.

Third. The evidence shows that on' the fourth day of February, 1879, the plaintiffs executed to the Council Bluffs & St. Louis Bailway. Company a deed of the right of way over the premises in dispute. ■ The plaintiffs do not ask that this deed be' canceled or set aside. So long as this deed exists, the defendant, tlie Wabash & St. Louis Bailway Company, cannot be restrained by injunction from operating its road over the premises in dispute.

Eor these reasons the judgment of the court below is

Affirmed.