Ottumwa tri-weekly courier. [volume] (Ottumwa, Iowa) 1903-1916, 1904-04-26

lngS for q public purpose, or acquired
by purchase for a public purpose, such
as right of way for railroad which
is quasi public purpose, cannot be
taken for another and different pur-
pose thus doing away with the pur-
pose for which it was originally taken.
Such is the settled rule of law.
"This, however, would not prevent
the city from condemning the right Of
way for street across a railroad right
of way, as was done in the case of the
Milwaukee Railroad Co., VS.. Stark
weather. 81. Iowa, because the use Of
the right of way for a street would not
destroy the use of the railroads right
for railway purposes.
Abandon Right of Way.
"This doctrine might possibly be ex-
tended to the extent of taking, part OF
the right of way acquired by the rail
road company, if it's right of way were
made wide enough so that the part =
taken would not and could not ma
terially interfere with the use of the
right Of way for the purpose for which
it was condemned, in my judgment.
There is, however, another question
Of fact in this case that / don't care to
give my opinion upon because am not
sufficiently conversant with the facts.
1t is reported to me that while the Wa
bash Railroad Co., graded its right OF
way from it's depot in South Ottumwa
to the right bank of the Des Moines
river and from there to and through
old Richmond. laid down its ties and
placed its iron thereon, that it never
in fact used said roadway to run and
operate its trains upon, that for ten
years it has not run an engine over
the line in question and that for sew
eral years the road bed in question
has been washed out and it has been
impossible for it to operate train ov-
er it's tracks. SO that it is possible and
may say that if the facts are as re-
ported to me- it is altogether probable
that the Wabash Railroad Co., has
abandoned in law its right of way.
Provision Of Deeds.
| Cali of the deeds made to the rail-
road company for the right of way
contain this provision: If after con-
structing it's railroad it shall perman.
emily abandon its line of railway across
such premises, then said tract or strip
of land above described shall at once
revert to the grantor.'
"Now, if the time has come when
this company can be said to have per-
manently abandoned its right Of way
as in said deeds provided, then the
strip of ground no longer belongs to 1t
but to the adjacent owner from whom
it was so purchased. This as you may
see Is question of fact and not of
law
Section 2O15 of the Code of Iowa
governs this question of abandonment,
notwithstanding the provision made In
the deeds aforesaid. That section pro
vides: That where a railroad con-
structed in whole or in part has ceased
to be operated for more than five 81
years. = If the railroad or any part
thereof shall not be used or operated
for a period of eight (8) years, OF II
it's construction having been COM
menced, work on the same has ceased
and has not been in good faith resum-
ed for eight (S) years, then the right
| of way, including the road-bed. shall
revert to the owner of the land from
whom said right of way was taken
This section defines what shall be re-
garded as an abandonment of a right
of way and nothing less than non-user
for eight (S) years will authorize the
owner of the land from whom the right
of way was taken to retake possession.
, Frenow VS.. C. M. & ST. Railway COM
pany, rs Iowa, 256; McClain vs.. @. R.
: /. & P. Railway company, 80 Iowa
l 646; Smith VS.. Hall. 103 Iowa. 05. The
. case of Gill VS.. Chicago & N. w. Rail-
! way Company, 80 N. w. 606, is a case
r very much in point.
d Reverts to Land Owners.
at is there said: That where the
. only use made of railroad right OF
: way over plaintiffs land Is to occas'
! sionally shove an old worn out car
: thereon and allow it to stand there for
{ months. but no other portions Of the
9 right of way are used, the right OF way
. reyerts to the land owner under a deed
> to the railroad company, which pro
!. vides that the right of way shall re-
. vert. to the graritor if the railroad com
- ipany or its assignees cease permanent
- " to use the road or abandon the same
>. or it reverts after eight (S) years o.
such non-user. without regard to the
deed by reason of Code, Section 2O15
!, providing that the railroad right OF way
- shall revert to the land owner after
i period of eight 80 years.
n "Under this last case, 1t would seem
" that if it is fact that the Wabash
i Railway company have not used this
IN right Of way for the last eight years
"a at the place in question, then the sans
:. has reverted to the adjoining owners
Ia and the city would not have to conside
is the Wabash Railroad company in con
IS demning such property at the poin
le named as 1t might need to make III
III improvement. rip-rap, leyee, etc
IN should it be determined to improve IN
in Des MONIES river SO as to protect Soutl
RI ottumwa from food at the place nam
ty ed.
~ every respectfully,
h, "W H. G. Jaques,
l I