Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1902-07-23
AFFECTS NEW HOSPITAL
Opinion Of Attorney General on
Hospital Sewer Matter Re.
ceiyed.
Says Board Of Control Can Not
Grant Privilege of Crossing
Home Grounds.
Hospital Will Be Built Despite
the Barrier, and Cesspools
Used.

/ Very Rev. NJ. c. Lehman, of St
Marys, received this morning from the
state board of control the opinion OF
4 Attorney General Charles w. Mulan
on the matter of the laying of the sew
er OF the new ST. Thomas hospital
across the state lands on which the
Soldiers Home is located. The attor-
ney general says that it is out of the
/ power OF the board To grant the Sisters
Iof Mercy the privilege and that it can
only be gained thru an act of the legis-
lature.
Father Lehman proved after the re-
ceipt of the opinion in this morning S
Ten minutes after the letter WAS read
Inen in his employ We're on the hospltai
Site, Thirteenth and State streets max
ing tests of the soil in order that it
| might be ascertained what could be
done with the cesspool system in caring
for the institutions sewage. The report
is favorable and the hospital will be
built despite the barrier that has been
laid in the way by the attorney gem
erals opinion.
Only last Monday Father Lenihan
| visited Des Moines to see the board OF
| control regarding the sewer across the
Home grounds. All the members at
that time announced themselves as be-
ing favorably disposed toward granting
permission. providing the state law
would permit them. According to the
plans of Father Lenihan. and concurred
in by the city. the sewer of the hos
pital was to run thru the Soldiers
Home grounds for about 1000 feet. to
| the north side of Lake Dewey, empty
/ ing into the Home sewer near Brady
icrcek The opinion of the attorney
1 general in the matter is as follows:
| "A grant of the right to enter upon
the land of the state and To construct
land maintain a sewer of the chdrac-
| ter described, would create an easement
therein and make such land servient to
| the dominant right of the religious as
ISOLATION to maintain it's sewer therein.
The fact that the sewer is construc-
| ted beneath the surface of the soil does
L not alter the relations of the parties or
the lands involved. The easement would
frmative, apparent easement, and
the land would be charged with the
dominant estate as tho such easement
was upon the surface of the soil.
1T is an elementary principle of law
that no easement can be granted in
real estate except by the owner thereof
in possession, or by the trustees of an
active trust who hold the legal title
to the land.
The title and possession of the land
Occupied by the Soldiers Home ut Mar
shaltown is in the state. 1t therefore
follows that the state alone has the
right to grant AN easement therein. I'M
less such power has been delegated by
the legislature; and that the board of
control has no power or authority to
grant an easement in lands belonging
to the state, unless such power has been
specifically given.
AN examination of the statutes of
the state, and particularly of chapter
lis of the laws of the Twenty seventh
general assembly, by which the board
of control was created, and of all sub
segment acts amendatory thereto. fails
to disclose any power or authority
specially conferred upon the board of
control to grant an easement in lands
belonging TO the state. AS no such
power or authority has been given or
delegated by the state to the board of
control. it cannot, in my opinion. grant
an easement of the character described
in any of the lands belonging to the
state. Such AN easement can only be
granted by the state thru the legisa-
ture. Respectfully submitted.
"CHAS. w. MULLAN,
attorney General"
Marshalltown will be glad to know
that Father Lenihan is undaunted by
the adverse opinion. He says that a
great many of the other hospitals of
the state are operated with the cess
pool system, and he doesn't know why
st. Thomas can't be for time, at least I
Work will be begun on the excavations |
within the next two weeks, and until /
the next meeting of the legislature
cesspools will be used. At that time
Father Lenihan will work for a bill that
will grant permission to use the Home |
grounds. Rev. Lenihan thinks that I
with a generous public behind him, the .
Sisters of Mercy ready and anxious to |
come here and begin work. the needs I
of a hospital more and more apparent +
every day. he is justified in going
ahead, even tho in the face of ADVERSE I