Eikenberry v. St. Paul & Kansas City Shortline Railroad

Evans, C. J. It appears from the petition that, in the year 1913, the defendant railroad company was engaged in constructing a line of railroad through the city of Chariton, Iowa, across Auburn Avenue in said city and through the lots of the plaintiffs. The plans contemplated an overhead crossing for Auburn Avenue. For the purpose of such -overhead crossing, embankments were proposed as approaches thereto on either side of the right of way. The proper construction of such embankments required the condemnation of ground in excess of the 100 feet within the right of way. The following plat indicates the general situation in that regard: — 8 — 1 Right of way. 2 Auburn avenue 3 Land taken outof lots 1 and 2. 4 Lánd taken out of. lot 43. 5 and 6 Foundation of crossing approach. The question presented by the demurrer involves the construction of Section 1998, Code Supplement, 1907, as it was at the time of the condemnation proceedings in question. Such section was as follows: 1. Eminent domain : extent of power: “approaches” ancl “embankments” : construction of statute. “See. 1998. Any railway corporation owning or operating or constructing a railway shall have power to condemn lands for necessary additional depot grounds or yards, for additional or new right of way for constructing double track, reducing or straightening curves, changing grades, shortening or re-locating portions of the line, for excavations, embankments, or places for depositing waste earth in the same manner as is provided by law for the condemnation of the right of way. Before any proceedings shall be instituted therefor, the company shall apply to the railway commissioners, who shall give notice to the land owner, and examine into the matter, and report by certificate, to the clerk of the district court in the county in which the land is situated, the amount and description of the additional lands necessary for such purposes, present and prospective, of such — 9 — company; whereupon the company shall have the power to condemn the lands so certified by the commissioners. ’ ’ It appears from the petition that, prior to the condemnation proceedings now assailed by the plaintiffs, the Railroad Commissioners had regularly examined into the matter and had certified, as required by statute, the additional lands necessary for the purposes already indicated. Subsequent to such certification, the condemnation proceedings were instituted and damages were awarded by sheriff’s jury. From such-award, the plaintiffs herein prosecuted an appeal to the district court, and thereafter instituted this injunction proceeding. Because of the conclusion of the majority of us upon the merits of the controversy, we will not inquire into the question whether, under the circumstances here shown, an independent injunction suit will lie. The controversy between the parties turns upon the question whether the approaches for the purpose of an overhead crossing for the highway were “embankments”, within the meaning of Section 1998, above quoted. The argument for appellants is that the statute should be strictly construed against the condemning company and in favor of the landowner; and that the terms “excavations” and “embankments” should be confined to such as are longitudinal; and that the only “embankments” within the contemplation of the statute are such as are fieeessary to the support of the railway track; and that the term should not be construed to apply to such embankments or approaches as are necessary only for the purpose of crossing an intersecting highway. This argument, however, puts a very restricted meaning upon the term. The powers and duties of the railway company in respect to railway crossings were fixed by Code Section 2017. The duties imposed by this section upon the railway company were peremptory. This section (since repealed by Chapter 162, Acts of the Thirty-fifth General Assembly) was as follows: — 10 — “Sec. 2017. Any such corporation may raise or lower any turnpike, plank road or other road for the purpose of having its railway cross over or under the same, and in such eases said corporation shall put such road, as soon as may be, in as good repair and condition as before such alteration. ’ ’ Reading Sections 2017 and 1998 together, we think they do not justify such a restricted construction of the term “embankments” as is contended for by the appellants. The • terms of Section 1998 are somewhat broad and sweeping. Indeed, the successive legislation relating to the power of condemnation for railway purposes has been progressive and has apparently sought to meet all the developing needs of railway construction. Under previous statutes, we had formerly held that there was no power to condemn additional lands for depot grounds. Forbes v. Delashmutt, 68 Iowa 164. This holding was superseded by the present Section 1998. Section 1995, Code, 1897, limited the power of condemnation to a width of 100 feet, unless' greater width is necessary for excavation, embankment or depositing of waste earth” and “except for wood and water stations”. Section 1996, Code, provided a right of condemnation for reservoir purposes, and Section 1997, Code, provided the same right for the purpose of laying water pipes. Section 1998, with its amendments, as above quoted, superseded previous decisions and enacted broad provisions, subject only to the supervision of the Railroad Commissioners. Since this suit was begun, Chapter 162, Acts of the Thirty-fifth General Assembly, was enacted, as stated above. This enactment only emphasizes the continuing purpose of the legislature to broaden the powers of condemnation for every legitimate purpose incidental to the construction of the railroad. The approaches in question are “embankments”, within the ordinary meaning of the term. That such “embankments” or their equivalent are necessary for the purpose of an overhead crossing is unquestioned. The necessity for additional lands for the purpose of their construction was ascertained and certified regularly by the Railroad Commis — 11 — sioners. As “embankments”, they are clearly covered by the terms of the statute. “We see no appropriate reason for restricting the sense in which such word is used in the statute, so as to exclude them from its operation. To do so would, in our judgment, be a purely arbitrary construction. Suppose, for illustration, in order to accomplish an overhead crossing for the highway, the railway company had lowered its own grade and had constructed a deep excavation across the highway, in order that its railway might pass under the highway, while leaving the highway at its natural grade. Under this section, additional land could, be condemned for the purpose of “excavation”. Under the construction contended for, such an excavation would come within the terms and meaning of the statute. If, under this statute and Section 2017, a railway company may resort to '“ excavations ’ ’ in order to pass under a highway, why may it not resort to “embankments” in lieu of “excavations”, in order to pass over the same highway? Suppose further that, pursuant to Section 2017, the railway company should proceed to lower the highway in order that it should pass under the railway. As an engineering problem, this might involve the raising of the grade of the railway upon an embankment and the lowering of the grade of the highway by excavations. According to the contention of appellants, the embankment in such a case would be such as is contemplated by the statute, but the excavations for the highway would not be such excavations as are contemplated by the statute. To put the contention in another way, the railway company may carry its railway under a highway by £ ‘ excavation” or over such highway by “embankment”, and in each case may condemn additional land therefor; but if the problem involves a raising or a lowering of the highway to any extent, then the “embankments” or “excavation” rendered necessary to such raising or lowering of the highway are not within the contemplation of the statute, and condemnation cannot be had therefor; and this notwithstanding that Section 2017 — 12 — makes it the duty of the railway company to accomplish practical results in carrying such highway across its tracks. ¥e think, however, that the restricted construction of the terms of the statute, as thus contended, is quite uncalled for and clearly contrary to the current course of legislation. It is argued that approaches could have been constructed without embankments at all, in that timber, steel, or concrete supports could have been used; and that, in such case, no claim of right to condemnation could be made. This argument is not at all conclusive, because it applies with the same force to an embankment supporting the railway track as to the embankments now under consideration. Any embankment may be dispensed with by the use of trestles or other structural support. This argument would render all embankments legally unnecessary, even though intended for the support of the railway track; and therefore, no right to condemnation could be exercised, even for such purpose. This argument, therefore, if carried to its logical end, would render the statute wholly nugatory. 2. Eminent domain: extent "necessity” for toaSígsIbynts: mfssionf effect, We note the suggestion in argument that the question of the reasonable necessity of the embankments ought to be a matter of pleading and proof; otherwise, the railway company might establish its right to condemnation by merely declaring a purpose to construct embankments, regardless of the necessity for such embankments. We think this suggestion ignores the provisions of the statute as to the duties of the Railroad Commissioners in the premises. No condemnation for additional land can be had without a previous inquiry by the Railroad Commissioners into the necessity for it. The petition in this case disclosed, as already stated, that such inquiry was had and the certification of necessity made. We reach the conclusion that the demurrer to the petition was properly sustained. The judgment below is accordingly affirmed. — Affirmed. — 13 — Ladd, Gaynor and Salinger, JJ., concur. Deemer, Weaver and Preston, JJ., dissent.