# Burlington Gaslight Company v. Burlington C. Railroad

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## Dissenting Opinion

    Peckham
United States Supreme Court
165 U.S. 370
Burlington Gaslight Company v. Burlington C. Railroad
On July 2, 1836, congress passed an act (5 Stat. 70) directing the survey and platting of certain tracts of land in Iowa into towns, among others the town (now city) of Burlington; the work to be done under the direction of the surveyor general of the public lands, with a proviso 'that a quantity of land of proper width, on the river banks, * * * and running with the said river the whole length of said towns, shall be reserved from sale, (as shall also the public squares,) for public use, and remain forever for public use, as public highways, and for other public uses.' This act was amended on March 3, 1837 (5 Stat. 178), by transferring the duty of surveying, etc., from the surveyor general to a board of commissioners. Both the original act and its amendment provided for a public sale of the lots as surveyed and platted. In pursuance of these statutes the town of Burlington was platted, a strip of land 200 feet in width, called 'Front Street,' being left between the eastern row of lots and the Mississippi river. In 1853 congress passed an act (10 Stat. 157) granting to the cities of Burlington and Dubuque 'the land bordering on the Mississippi river, in front of said cities, reserved by the act of second July, eighteen hundred and thirty-six, for a public highway, and for other public uses, together with the accretions which may have formed thereto or in front thereof; to be disposed of in such manner as the corporate authorities of said cities may direct.'
The third section provided:
'That the grant made by this act shall operate as a relinquishment only of the right of the United States in and to said premises, and shall in no manner affect the rights of third persons therein, or to the use thereof, but shall be subject to the same.'
The plaintiff is the owner of five lots facing on Front street, holding them by a regular chain of title from the original purchasers at the government sale, and occupying them for its gas manufacturing plant. For many years the defendant, under authority from the city, and apparently without objection, had been using a portion of this open ground between the lots and the river. It had constructed a retaining wall 36 feet east of the line of plaintiff's lots, and had graded and used all east of that for tracks, switches, and a freight house. Practically, therefore, the plaintiff was left a roadway in front of its lots of 36 feet in width. In 1892 the city council passed a resolution authorizing the railroad company to set this retaining wall back 15 feet, 'the space said wall was set back to be used solely for the purpose of a wagon road.' The effect of this was to narrow the roadway in front of plaintiff's lots to about 20 feet, the wagon road east of the retaining wall being for approach to a new freight house the defendant was proposing to construct between that space and the river. In pursuance of this authority the railway company commenced to make the excavation and erect the wall. Upon this plaintiff filed its petition in equity in the Des Moines county district court to enjoin the work. A decree in its favor in the district court was reversed by the supreme court of the state, and one entered dismissing the suit (91 Iowa, 470, 59 N. W. 292), to reverse which decree of dismissal plaintiff sued out this writ of error.
P. Henry Smyth, for plaintiff in error.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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