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

Gtven, J. I. The defendant demurred, on the ground that the petition did not show an abandonment for the period of eight years, as provided. by section 1260 of the Code. The sáme question was raised by motion for verdict, and on the instructions, and is the controlling question presented on this appeal. Said section provides “that if said roadbed or right of way, or any part thereof, shall not be used or operated for a period of eight years, * * * the land and title thereto shall revert to the owner of the section, subdivision, tract, or lot from which it was taken.” In the absence of statute, mere nonuser for any length of time would not work a forfeiture. Barlow v. C., R. I. & P. Railway 648 Co., 29 Iowa, 276. If the nonuser was permanent, that is, without an intention to resume the use, it would constitute abandonment, without regard to the length of time the right of way had not been used. Without the statute, to constitute abandonment there must have been a permanent cessation to use; that is, a cessation to use, with an intent not to resume the use. Under the statute, mere nonuser for eight years constitutes abandonment, regardless of the intention of the company. The plaintiff has not alleged, and does not claim, nonuser for eight years, but does claim abandonment, under the terms and conditions of the deed. The defendant contends, on the authority of Fernow v. C., M. & St. P. Railway Co., 75 Iowa, 526, that the statute alone controls. In that case Fernow had granted a right of way upon which a track was laid and operated until November, 1878, when the track was taken up, the right of way fence being left. Fernow entered upon and cultivated the right of way without leave until July or August, 1886, when the defendant relaid a track, and ran trains thereon. Fernow sued for trespass, and it was held that, as eight years’ nonuser had not elapsed, the defendant was not a trespasser. It was contended that the statute does not take away the common law right of forfeiture, but merely gives an additional remedy. This court held that the principle contended for was not applicable to the question under consideration; that the statute defines what' shall be regarded as abandonment. ‘ £It definitely fixes the rights of the parties, and, under its provisions, nothing less than nonuser for eight years will authorize the owner of land from which it was taken to take possession of the land.” It is previously stated that ‘‘there is nothing in the conveyance of the right of way in the way of condition, proviso, or limitation, as to the line of road.” Clearly, in the absence of contract, the statute controls: 649 but it does not follow that the parties may not agree upon a forfeiture of the easement upon other terms than those provided in the statute. No such conditions were contained in the conveyance of the right of way in Fernow’s case as in this, nor does that case hold that the parties may not agree that abandonment shall follow, if the grantor shall at any time “cease permanently” to use the right of way for the purposes for which it was conveyed. The lower court instructed that “abandonment,” as the word is used in this case, means simply a permanent cessation of the use of the right of way in question for railway purposes, and submitted the question of fact to the jury. We think there was no error in overruling the demurrer or in the instructions. II. On the trial, the plaintiff was permitted to introduce evidence, over the defendant’s objection, tending to show that the right of way in question was part of a right of way for a spur track from the defendant’s main line, running south to a coal mine; that, to induce the construction and operation of the track to the mine, the owners of the mine procured the right of way for the defendant free of cost to defendant; that ' the mine was abandoned in February, 1885; and that said right of way has not since been used for railroad purposes, and especially that part across the plaintiff’s land, and south thereof. The defendant introduced evidence tending to show that the track was used for railroad purposes. The defendant contends that the court erred in admitting the evidence introduced by the plaintiff, because its effect was to show agreements not expressed in the deed. This evidence was unquestionably not admissible for such a purpose, but it was admissible upon the question whether the defendant had ceased permanently to use the right of way through and south of the plaintiffs land, and, under the instructions, could not have been considered for any other 650 purpose. Upon this evidence, the jury were warranted in finding as they did. Our conclusion is that the judgment of the district court should be affirmed.