Hall v. Wabash Railway Co.

Ladd, J. — The plaintiff was owner of the N. E. *4 of section 29, and the S. W. % N. W. % of section 28. The track of the defendant extended over this land as indicated in the plat: 1. Eminent domain: condemnation oright of way: notice. • As was determined by this court on a former appeal (133 Iowa, 114:) because of an exception of the right of way in the deed of the forty acres under which plaintiff claimed, he is not entitled to damages therefor, but his right to damages for the taking-the right of way over the one hundred and • o ^ «7 ^ sixty acres is ruled by Remey v. Railway, 116 Iowa, 133, and Russell v. Railway (Iowa), 99 N. W. 1131. Upon remand the district court seems to have been of opinion that, inasmuch as plaintiff might not have had damages assessed for the right of way over the forty acres by the sheriff’s jury, the district court acquired no jurisdiction by the appeal from the award of that body, and for this reason dismissed the cause. ' Such a conclusion is obviated by two circumstances appearing of record: (1) The two tracts of land are adjacent, and are described in [253] the notice to the sheriff demanding the appointment of commissioners to assess damages as an entirety, and also in the notice to the defendant and the commissioner’s return; and (2) in none of these is the location of the right of way specified otherwise than upon and over said land. Had the owner intended to exclude the right of way through the forty acres, he might properly have included the several parcels of land as constituting his farm as an entirety in the notice, for, under repeated decisions of this court, the damages to the farm as a whole are to be estimated, rather than to some particular government subdivisions from which the right of way has been taken. Cook v. Railway, 122 Iowa, 437; Peden v. Railway, 78 Iowa, 131; Cummins v. Railway, 63 Iowa, 397; Lough v. Railway, 116 Iowa, 31. 2. Same: assessment of damages. It appeared of record that plaintiff had never acquired the ground from which the right of way over the forty acres was taken, and it is to be presumed that the sheriff’s jury, in estimating the damages to the farm, took into account the appropriation of the right of way through the one hundred and sixty acres only. If they did include more, the error was such an one as may be corrected on appeal. The decisions relied on by appellee are not inconsistent with this conclusion. In Chicago, R. I. & P. Ry. Co. v. Hurst, 30 Iowa, 73, the commissioners assessed damages in favor of Hurst and Smith jointly, and the court held that the former could not prosecute an appeal to the district court without making Smith a party to the proceedings. In Cedar Falls, I. F. & N. W. Ry. Co. v. Railway, 60 Iowa, 35, damages for the appropriation of a right of way through the E. % of S. W. % and E. Yi of N. W. % of a section, notice being served on Dows, who was the only party to the condemnation proceedings. Afterwards the Cedar Rapids, Iowa Rails & North Western Railway Company united with Dows in an appeal as [254] to the right of way over the first-mentioned eighty aeres, and upon return asked that it be substituted as sole plaintiff because the owner of the fee. The motion was denied., on the ground that an appeal may not be taken from a part of the- award. There the attempt was both to sever the land and the assessment in the appeal, while here the appeal was from the entire award as made by the commissioners, and with the evident object of having the assessment as to the entire tract reduced. How this shall bo accomplished, whether in rejecting elements of damages thought proper to be considered by the sheriff’s jury or excluding a portion of the right of way which that body erroneously considered, or owing to a different estimate of the extent of the injury, is not material. 3. Same. The • issues raised on the appeal were not different than those' presented to the sheriff’s jury, though the estimate of the damages is to be made without reference to that appealed from. Hahn v. Railway, 43 Iowa, 333. The vice in appellee’s reasoning lies in the assumption that the appeal is from the taking of two parts of a right of way, for only one 'of which plaintiff might claim. As seen, nothing in the notices exacts this construction. On the contrary, these were in harmony with the proposition that he was demanding no more than he was entitled to. Nor can it be presumed that the commissioners took into consideration the right of way other than that appropriated from plaintiff’s land. If they did, this, as said, was a matter appropriate for consideration on appeal. See, Gray v. Railway, 129 Iowa, 68. The order'of dismissal is reversed.