Home/Supreme Court of Iowa/Keokuk Electric Railway & Power Co. v. Weisman

Keokuk Electric Railway & Power Co. v. Weisman

146 Iowa 679
CourtSupreme Court of Iowa
DecidedApril 6, 1910
StatusPublished
Cited by10 cases

This text of 146 Iowa 679 (Keokuk Electric Railway & Power Co. v. Weisman) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keokuk Electric Railway & Power Co. v. Weisman, 146 Iowa 679 (iowa 1910).

Opinion

Evans, J.

T,he original defendant in this case was J. C. Hubinger. After the trial in the court below, he died, and his executor has been substituted as the defendant. It will be more convenient for us in the discussion to ' take no account of • this substitution and to refer to Hubinger as the defendant, inasmuch as he so appears throughout the record of the court below.

The property in which an easement is claimed is the residence property of the defendant. This property consists of spacious grounds highly improved as a residence, and comprises thirteen lots in block forty-five in the city of Keokuk. These lots run parallel across the block, and comprise approximately the south half of the block. This block is a long, narrow block, and its lots are numbered consecutively from one to twenty-seven, beginning at the south end. This block is on the crest of a high bluff overlooking the Mississippi River to the east and abutting on the east line of Grand Avenue. The bluff upon which [681]*681defendant’s residence property is situated is one hundred feet high. Adjoining the south nine lots thereof on the east and at the foot of the bluff one hundred feet below is situated the site of the Electric Light and Power works, extending from the foot of the bluff to the Mississippi River. This power plant has been in operation, furnishing the electric light and railway service for the city of Keokuk, for many years. Many years ago Hubinger became the owner of this power plant. For the purpose of its operation, he organized a corporation under the name of “J. C. Hubinger Company.” To this company he transferred the power plant. All of the stock of this corporation was owned by Hubinger, although four or five shares were by him transferred to others to enable them to serve as directors of the corporation. All of the business of this corporation was transacted by Hubinger personally without the formality of directors’ meetings. 'Grand Avenue runs parallel with the Mississippi River, and in the general direction of north- and south. It is the easternmost street of the city. The east and west streets of the city terminate at this avenue. The power plant, therefore, was cut off from immediate connection with the streets and avenues of the city by defendant Hubinger’s residence property. For the purpose of connecting the plant with Grand Avenue and with that part of the city lying west thereof, the defendant erected a “lead” of three poles across the south end of the residence property on lot one, and strung the conducting wires thereon. And this lead of poles and wires furnished the only connection with the city proper up to the beginning of this controversy. Nor was there any practicable way whereby the employees of the power plant and those having business with it could gain access thereto from the city proper, except by passing over the residence property of Hubinger or the private property of others adjoining thereto. It became customary, therefore, to go to and from such power [682]*682plant over a pathway leading up the bluff and crossing the defendant’s residence property to Grand Avenue. In 1899 the defendant erected substantial steps up the bluff opposite lots five and six, and a landing at the head of his retaining wall. From this point a cement walk led across his grounds to a gate at Grand Avenue. These steps and the cement walk thereupon became the fixed line of travel to and from the power plant. The only othen possible way whereby access could be obtained to the power plant was by a detour of one-half mile to the north, down Anschutz Hill to the River Roadl abutting on and lying between the tracks of the Chicago, Burlington & Quincy Railroad. On the following page is a plat of the premises involved in the controversy.

In 1900 Hubinger entered into negotiations with one Wallace for the sale of the electric plant Wallace was acting for undisclosed principals. These negotiations resulted in the purchase of the plant by the present plaintiff. For two or three years after this purchase, the present plaintiff continued the use of the lead of poles and wire and the footway for pedestrians over defendant’s residence property in the same manner as before, and without any question of right thereto being raised by the de^fendant. In 1901, one year after the transfer, at the request' of Hubinger, the lead of poles for the conduct of electric wires was changed, in this: that higher poles were substituted and two poles were used in lieu of three. The substituted poles were fifty-five feet in height, whereas the former were only thirty-five feet. The detailed method whereby the power plant was sold and conveyed was that the present plaintiff was organized as a new corporation. Three thousand nine hundred and ninety-five shares of its stock (being all the shares of such stock except five) were issued to the Hubinger Company. Two hundred and fifty thousand dollars of bonds of the new company were also issued, and these were all issued to the Hubinger Com[684]*684pany. Thereupon Hubinger, for the Hubinger Company, conveyed the power plant with “all its appurtenances” to the new corporation, which is the plaintiff herein. The purported consideration for such a conveyance was the issue to the Hubinger Company of all the shares and all the bonds of the new corporation as already indicated. Thereupon Hubinger, for the Hubinger Company, transferred to. the principals of Wallace all such shares and bonds of the new corporation for the consideration originally agreed on, $182,000. On behalf of plaintiff, it is shown by the testimony of Wallace and another that at the time of the conveyance of the property, the question of the right of access to the property over ■ the grounds of the defendant was raised and discussed, and that Hubinger agreed that such right should continue. This is denied by the testimony of the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
146 Iowa 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keokuk-electric-railway-power-co-v-weisman-iowa-1910.