Boggs v. C., B. & Q. R.

Day, J. [436] i.railroads: striiiot crossdamú™ . [435] The facts of the case are substantially as follows: For thirty years past the plaintiff has owned the west half of [436] the land in question. The ¡Burlington and Missouri Rivei Railroad was constructed over this land in 1866, and it is now operated by the Chicago, Burlington & Quincy Railroad Company. The plaintiff then had a house, barn, stable, crib and some other buildings on the north forty of the eighty, about the center north and south, and twenty rods east of the west line, and north of the railroad. In 1870 the Central Railroad of Iowa was constructed across said land, running between the plaintiff’s house and barn, about seventy-five steps from the barn, and one hundred and fifty feet north of the house, placing the house between the two railroad tracks. The plaintiff’s premises were situated in such proximity to the Central Railroad that they twice came near being destroyed by fire from it. About eight or nine years ago, the plaintiff purchased the east half of the one hundred and sixty acres now in controversy. The Chicago, Burlington & Quincy Railroad enters this land near the northeast corner, and traverses it in a southwesterly direction, leaving it at the middle of the west line. West and a little south of this point is situated the depot of the defendant. The town of Albia, which is the county-seat, and plaintiff’s post-office, is situated two miles southwest of plaintiff’s present residence. The road from Albia crosses the depot grounds of the defendant, and extends in a northeast direction till it touches plaintiff’s premises, about the middle of the west line of the northwest forty; it proceeds north along the west line to the northwest corner, thence east along the entire' north line of plaintiff’s premises. From the middle of the north line of plaintiff’s premises a road runs north. At this point, is situated the school-house which plaintiff’s children attend.' Upon this road are situated the mill patronized by plaintiff, and .the coal mines, from which he procures coal. About eight years before this suit was commenced the plaintiff built his house and two barns near the center of the one hundred and sixty acres, south of defendant’s track. For seven years [437] the plaintiff has been going north until he struck the railroad fence, and .then along the railroad fence forty-six rods northeast, to the highway. He has now constructed a lane due north from his house, to the highway running east and west along his north line, and the highway extending north from the middle of his north line. This lane is open at the north end but is closed at the railroad. It is at the point where this lane crosses the railroad that the plaintiff asks an open crossing. The accompanying plat and explanation will render more plain the situation of the premises. 1 ............House. 6......School-house. M.-McCahan’s farm. ZBailroads. 2 and 3.......Barns. B......Boggs’ farm. Gr... Gurwells’farm. __Higlrway. 4.....Old bouse site. 0..........Crossing. X.. C., B. & Q. R. l’ds. üütütü- — ;~ü;. Bence. 6......Old barn site. L.............Lane. -40 acre lines. [438] About tbe time of tbe trial tbe. defendant filed an amendment to its answer, stating that it stands ready to give the plaintiff a free and unobstructed right of way over its depot grounds to the highway that passes over said grounds, and leads to Albia. During the trial, T. B. Perry, one of the attorneys for the defendant, made the following statement in the foi’m of a proposition. “I am authorized by the O., B. & Q. B. Co. to say that if Mr. Boggs will accept an outlet going west from his house to the west pax’t of his land, where the company’s ground at the central crossing joins his, he can have the right of way over the company’s grounds to the highway, as long as he wants it.” The route px’oposed by the defendant would be one-half mile shorter to Albia, and one-half mile longer to the mill, the coal mine and school-house, than the route desired by the plaintiff. The evidence shows that the plaintiff requested the defendant to make an open cx’ossing at the place indicated. I. The defendant in its answer denies the right of the plaintiff to compel the defendant to put in an open crossing at the point where the lane cxusses the railroad, amongst others for the following reasons: “ Because an open crossing would incx’ease the hazards and dangers of operating the road, which should be avoided in a case like this where the plaintiff is not shut out from town or the highway, .and can get a fetter route out over his own land south of the railx’oad, than uorthwax'd over this crossing in the lane. “ Because it is an open lane except as closed by the railroad. It is a point where the public have a right to expect it to be fenced. “ If, to accommodate the plaintiff, the defendant makes this an open crossing,' it would be liable for the stock of third persons killed xxpo'n it, for the reason that it should be fenced, and the defendant could not justify on the ground that it was left open to accommodate the plaintiff. “ Because the law does not contemplate or provide that a railroad company shall put in an open crossing for a private [439] person, for the reason that it now provides for only one cattle guard, showing that an open crossing is not meant. “Defendant denies that this proceeding by mandamus is the proper remedy, if any, the plaintiff is entitled to. That the giving an open crossing in this case is not a duty enjoined upon defendant by law, resulting from an office, trust or station.” The plaintiff moved to strike out these portions of the answer, upon the ground that they state only legal conclusions and matter superfluous, redundant and immaterial to the issues. The motion was sustained. This action of the court is assigned as error. In our opinion these portions of the answer were properly stricken out. They state merely legal conclusions and matters of argument. II. It is claimed that mcmda/nvus is not the proper remedy. Section 3373 of the Code provides: “The action of mandamus is one brought in a court of competent jurisdiction, to obtain an order of such court, commanding an inferior tribunal, board, corporation, or person, to do or not to do an act, the performance - or omission of which the law enjoins as a duty resulting from office, trust, or station. Where discretion is left to the inferior tribunal, or person, the mandamus can only compel it to act, but cannot control such discretion.” Section 1268 of the Code provides: “When any person owns land on both sides of any railway, the corporation owning the same shall, when requested so to do, make and keep in good repair one cattle guard and one causeway or other adequate means of crossing the same, at such reasonable place as may be designated by the owner.” The defendant is a corporation, upon which is conferred certain powers and privileges. Because of the station'oi the corporation, as the possessor of power and privileges, certain duties are by law imposed. One of these duties imposed by law is that the defendant shall, when any person owns lands on both sides of its track, upon request, make one cattle [440] guard and one causeway or other means of crossing the same, at such reasonable place as the owner may designate. Appellant, as we understand, impliedly concedes that the duty of providing a cattle guard, and some means of crossing the track, maybe enforced by mandamus. It is claimed, however, that the duty of providing an open crossing is not enjoined by the statute and cannot be enforced by mandamus. The statute, it will be observed, provides that the railway company shall provide one cattle guard and one causeway or other adequate means of crossing the track. In this case the railway track extends between the plaintiff’s house and the highway. In such a case the only crossing which is adequate is an open crossing, if the'owner of the premises demands it. Gray v. B. & M. R. R. Co., 37 Iowa, 119. The duty of providing an open crossing, upon request, is, therefore, in this case imposed by statute. A performance of this duty may, under section 3373 of the Code, be enforced by mandamus. See High on Extraordinary Remedies, Ed. 1874, pages 200 and 228. III. The principal point urged by the appellant is that the plaintiff is unreasonable in the demand that he have an open crossing at the place indicated. From the examination of the plat it will be seen that there are two ways in which the plaintiff may reach the highway. First. By traveling directly north through the lane, as he proposes, eighty rods. Second. By constructing a new lane, and traveling directly west to defendant’s depot, as suggested by defendant, reaching the highway in something more than eighty rods. The first route is one-half mile nearer to the school-house and to the mill, coal mine and cheese factory, patronized by the plaintiff. The second is one-half mile nearer to Albia, the county-seat and plaintiff’s postoffice. Under the circumstances it is not unreasonabie for the plaintiff to' require an outlet to the highway north. It does not appear that the place which he has selected is a difficult one in which to provide a crossing. It should be prestimed, in [441] the absence of proof to the contrary, from the fact of the plaintiff’s selecting it, that it is in the place most convenient for him. If it is in the place most convenient for the plaintiff it is in a reasonable place, unless rendered unreasonable by its difficulty of construction or other fact. No such fact appears. In our opinion the judgment of the court is right. Affirmed.