Remey v. Iowa Central Railway Co.

89 N.W. 218, 116 Iowa 133

• Court: Supreme Court of Iowa
• Decided: February 14, 1902
• Status: Published

Opinions

Ladd, C. J. —

The Moulton & Albia Bailroad Company abandoned the right of way in 1888, ten years before taken by the defendant and a railroad constructed and operated thereon by it. The damages originally assessed and paid the owners for the appropriation of the right of way have never been r-efunded, and it is insisted by appellant that, until this has been done, none can be claimed by their grantees for the taking by defendant. On the other hand, plaintiffs claim the right of way reverted to them at the end of eight years, of non-user and cannot be taken again without compensation. The decision of this shortly defined issue depends upon the construction to be given the sections of the Code on the subject.

2 “Non-user of Bight of Way. Where a railway constructed in whole or in part has ceased to be operated for more than five years; or where the construction of a rail way has been commenced and work on the same has ceased and has not, in good faith, been resumed for more than five years, and remains unfinished; or where any portion of any, such railway has not been operated for four consecutive years, and the rails and rolling stock have been wholly removed therefrom, — it shall be treated as abandoned, and all rights of the person or corporation, constructing or operating any such railway, over so much as remains • ■unfinished or .from which the rails and rolling stock have been wholly removed, may be entered upon and appropriated as provided in the next section. If the railway or any part thereof shall not be used or operated for a period of eight years, or if, its construction having been commenced, work on the same has ceased and has not been in good faith resumed for eight years, the right of way, including the roadbed, shall revert to the owner of the land from which said right of way was taken.” Section 2015, Code.

This, with the section following, is a re-enactment of sections 1260 and 1261 of the Code of 1873, as amended by chapter 15 of the acts of the Eighteenth General Assembly, in fore© during the period involved in this action. As previous acts throw little,' if any, light on the construction to' be given, they need only be referred to. See section 129-Sj, Code 1860; chapter 91, Acts Thirteenth General Assembly; chapter 65, Acts Fifteenth General Assembly. The genesis of a statute alone will not justify the rejection of a portion of it, when capable of being accorded a meaning in harmony with other portions. The evident object of construction is to ascertain the meaning and intention of the lawmakers, as exemplified in the statutes under consideration, and to give these effect. It will be observed that this section undertakes to- define the circumstances under which a right of way will be treated as abandoned. This may happen in three ways: The first and third relate to the operation of a railway completed in whole or in part, and abandonment is established by showing that its operation has ceased for five years, if the rails or rolling stock remain; but, if these have been removed, then the time is but four years. The matter of operation is not involved in the second. If work on an unfinished road, once begun, has ceased for five years and not been in good faith resumed, the right of way is to be treated as abandoned. Regardless of what might amount to an abandonment at common law, this section clearly defines precisely what shall be treated as, and constitute, an abandonment within its. meaning,’ and it is such a right of way, so abandoned, which “may be entered upon and appropriated as provided in the next section.” But, suppose it is not “entered upon and appropriated;” what is to become of it? If the period of' non-user or failure to resume work has extended to eight years, the right of way reverts to the “owner of the land from which said right of way was taken.” “Eevert,” as here used is a technical word, and is to be accorded a meaning as-such. Code, section 48, par. 2. It is the return to the owner of the fee of the easement formerly appropriated, or, perhaps, more accurately speaking, the removal of the burden cast upon the ,fee. The instant the right of way reverts to the owner, the easement, with all its incidents, is extinguished and the owner of the tract from which taken restored to complete dominion over the entire property.. See Lewis, Eminent Domain, section 596; Smith v. Hall, 103 Iowa, 96. This is put beyond question by the wording of the statute, mentioning not only the right of way as reverting, but the roadbed as well. No condition is attached to the reversion, and it is pure assumption to say that the right of way reverts to the owner, subject to the right of some company, without any interest therein, to seize the land formerly a right of way and appropriate to its own use without compensation to any one. Nothing in the letter or spirit of these statutes justifies an attempt to read into them such a condition. After reversion, there remains no right of way, abandoned or otherwise. Until then, after being treated as abandoned it may be entered upon and appropriated as pointed out in the next sections, which reads:

“Condemning Abandoned Eight of Way. In case of abandonment as provided in the preceding section, any other. corporation may enter upon such abandoned work, or, any part thereof, and acquire the right of way over the same, and the right to any unfinished work or grading found’ thereon, and the title thereto, by proceeding as near as may be in the manner provided in this chapter, but parties who have previously received compensation in any form for the right of way on the line- of such abandoned railway, which has not been refunded by them, shall not be permitted to recover the second time. The value of such roadbed and right of way, excluding the work done thereon, when taken for a new company, shall be assessed for the benefit of the former company or its legal representative.”

Note that it is the “abandoned right of way” that may be condemned, not the land or an easement therein after it has ceased to be a right of way. After the right of wny has reverted to the owner, none is left for condemnation. It is only up to that time that a right of way may he treated as abandoned. It then belongs to the former company, and .to it, and not'the owner of the fee, the statute requires compensation to be made. It is only when damages have never been awarded, or if awarded, have never been paid the owner, or, if paid, have been returned by him, that compensation will be made, to him, instead of the company; for the statute proceeds on the theory that the taking is from it, if the easement has been acquired by the payment of damages assessed, and these not restored by the owner. The last clause of section 2016 is conclusive on this proposition ; for under it the value of the roadbed and right of way are to be assessed for the benefit of the former- company, and this evidently would not be exacted after such company had lost its interest in the property, through reversion to the owner. This is not a contest between the company abandoning the right of way and the owner of the fee. Nor all that appears that company may have ceased to- exist. Indeed, the claim of defendant, reduced to- its- last analysis, is that it may appropriate the right of way after reversion without compensation to any one. If this may be done 2 years after reversion, as here sought, it can as well be accomplished 50 years thereafter. If so, the owner of the fee can never occupy with safety, as at any moment it might be seized from him by an entire stranger, without even paying the value of the improvements. But it is said he could have avoided this contingency by tendering back the damages received. Ordinarily the value of the land fox the use to which it is adapted is in a large measure destroyed by the excavations and gradings necessary in the construction of the roadbed, and to restore it to a condition suitable for cultivation might well have been expected to involve an expense approximating its worth when this has been •done. Besides, it would be absurd to require an owner to pay one company in order to prevent another, having no possible connection with the first, from seizing his property; and, in event the first had ceased to exist, even this remedy must inevitably fail. Again, it is said that the right of way might be acquired by adverse possession. This could happen, but never by one who takes and holds possession in recognition of the right of any company so wishing to appropriate the land at any time as a right of way.

3 Having now stated the purport of these statutes, which seem too plain to call'for construction, we turn to the previous decisions of this court. Noll v. Railroad Co., 32 Iowa, 66, construed statutes containing no provision for reversion of the right of way to the owner of the fee, and hence is not in point. It was there held that an easement conveyed, instead of condemned, did not, because of non-user, revert to the owner. On this point the authorities are in sharp conflict, and those announcing the ■doctrine of Noll’s Case do so on the theory that the land, having been acquired for a public use, reverts to the state, rather than to the former owner, and may be disposed of by it only either for a public or private use. Lewis, Eminent Domain, section 596 et seq. The interest in the right •of wry, under subsequent statutes, has since been held to be precisely the same whether granted or condemned. Brown v. Young, 69 Iowa, 625. And the legislature has obviated the result of the decision in the Noll Case by enacting-that the right of way shall revert to the owner of the land out of which taken, rather than to the state, regardless of how acquired, when there has been eight years of non-user. The next case is the appeal in Dubuque & Dak. Ry. Co. v. Diehl, 64 Iowa, 635, from an order sustaining a demurrer to the plaintiff’s answer to. the petition of intervention. This, answer alleged the abandonment began in 1872, and that construction again commenced on a different part of the road in 1879 and was continued till 1881. The two points argued were (1) whether resumption of the work on the line, though not on the particular part in controversy, would interrupt the running of the statute, and, (2) if it did not, whether the right of way reverted in eight years. It was a contest for damages assessed between a company abandoning the right of way and the owner of the fee. From reading the opinion, it is evident the point now involved was given no attention. The court declined to consider the contention of the parties, and held the failure of the owner or his grantor to return the damages previously exacted precluded the former from setting up any claim to the damages last assessed. The decision on this point, not argued by the parties, seems to have been based on the relations of the then owner and bis grantor, and on the concessions in favor of the appellee “that there was an abandonment in contemplation of law.” Nowhere in the opinion is the matter of the reversion of the right of way to the owner mentioned, nor is it given any consideration as' bearing on the necessity of returning damages before demanding others for a second appropriation after the entire extinguishment of the easement. “Former decisions should only be disturbed on great consideration; for courts have no assurance of being wiser than their, predecessors. But when the applicability of law is lost sight of, because not questioned, in passing upon its validity, there is no jnst ground for halting in reaching a right eonelusion, in harmony with the voice of reason and authority; .for in such event the point has never been determined, save inferentially.” Washburn-Halligan Coffee Co. v. Merchants’ Brick Mut. Fire Ins. Co., 110 Iowa, 423. There can be no doubt but that Chicago, M. & St. P. Ry. Co. v. Bean, 69 Iowa, 257, was rightly decided. There the right of way was first condemned in 1870 (in October, as appears from the petition), and nothing done until 1878, when sold to the plaintiff, by whom the road was constructed in May or June of that year. The object of the suit was to enjoin the owner from prosecuting ad quod damnum proceedings. Chapter 15 of the Acts of the Eighteenth General Assembly, quoted in part of the opinion as contained in sections 1260 and 1261 of Miller’s Code, was not enacted until 1880, some two years after the land had been taken by the plaintiff and the road constructed. This being true, that chapter had no proper bearing in fixing the rights of the parties, which had accrued two years before its enactment. Under section 1260 the Code of 1873, as amended by chapter 65 of the Acts of the 15th General Assembly, the railroad company had the absolute right to enter after five years of non-user. The expressions in the opinion concerning the chapter of the act of 1880 mentioned must be regarded as dicta. This appears on the face of the opinion, upon ascertaining that the amendment to the section of Miller’s Code mentioned first appeared on the statute book as stated. It might be suggested that a stranger to ■our law would think otherwise from reading the opinion. But we are more concerned with the fact, than appearances, in estimating the value of a decision as a precedent. Again, a correct conclusion is reached, because there was a non-user of less than eight years, and the court well said “that,, notwithstanding there has.been an abandonment of the line, the landowner shall not be entitled to be paid twice for the right of way.” We now say'that, before the lapse of eight years the right of way remains intact, and may be condemned as such, but for the benefit of the former company only, with damages payable to the owner of the fee when those formerly assessed have not been paid, or, if paid, have been returned. After the lapse of eight years of non-user it ceases to exist as such, and is to be acquired in the same manner as rights of way are obtained in the first instance. We have, then, the foregoing decisions only bearing on the construction of the statutes; the point receiving no consideration in the first, and that said in the last being dicta. In the face of statutes in such explicit language, they ought not to be allowed to force an erroneous interpretation of the clear intention of the lawmakers.

4 But it is urged that a rule of property is involved. To this we answer that if it can be said that these decisions permit an individual or company to seize an easement from land belonging absolutely to another, without compensation to any one, then, even if a rule of property, it cannot be too quickly set aside. It is, however, exceedingly doubtful whether any rule of property is disturbed. Again, it is thought they construe statutes, and, as there have been several sessions of the general assembly since, that construction has been accepted by the legislature. But the courts owe some duty to the co-ordinate branch of the government, and of great importance is that of giving effect to the statutes as written and according to the meaning clearly intended. These sections are explicit, and their purport not to be doubted. It would be difficult for the legislature to make them plainer. When a palpable mistake has been made, through passing on a question not argued and overlooking a portion of the statute involved, and again in discussing a question not in the case, we think it not only the duty, but that it should be the pleasure as well, of the court to rectify the error and give expression to the law as written and as intended. Such a course is much to be preferred to reading into the statute conditions never thought of, merely to uphold what has been said inadvisedly. In such a case, this court, in all fairness, and not the legislature, should deem itself called upon to act.

The judgment of the district court was right, and it is aeeirmed.