Sterlane v. Fleming , 236 Iowa 480 ( 1945 )

I desire to dissent from Division I of the majority opinion. That division approves an instruction relating to the character of a crossing over the railway right of way of appellants about one-half mile west of the town of Homestead, Iowa County, Iowa. It was at this crossing the injuries claimed took place.

Appellees claimed that the crossing in question was a public crossing over the railroad right of way and that appellants were negligent in that the train which struck and injured appellees failed to give the statutory signals required: ringing a bell and sounding a whistle.

Appellants claimed that the crossing was a private one; that by reason of a change in the highway about twenty years before said crossing, insofar as it was public, had been abandoned. The case was tried on that theory. Appellants requested an instruction that the crossing was a private farm crossing and not a public highway crossing. The court refused this request and instructed the jury that:

"* * * the railroad crossing involved in this case is a public crossing and that the road leading to and across it is a road that is and can be used by the public. You are to so regard it in arriving at a verdict in this case."

Appellants excepted to the action of the trial court in refusing the requested instruction, and also to the one given by the court.

Thus the court told the jury as a matter of law that the crossing was a public one, thus making it mandatory that a locomotive approaching such crossing give the statutory signals.

The majority opinion holds that the trial court did not err in giving such instruction. I think that under the record it appears that the crossing was a private one and at the very least appellants were entitled to have the jury pass upon the question. It seems to me that there was abundant evidence to require the submission of that question to the jury.

Before dealing with some legal principles which I think have present application, I desire to set forth from the record some facts in addition to those set forth in the majority opinion with reference to the claim made by appellants.

As stated in the majority opinion, the accident happened at a railroad crossing about one-half mile west of Homestead, Iowa. At that point and for some distance to the east and west Highway No. 6 parallels the railroad right of way, being on the south side thereof. To the east of such crossing about 120 rods and between the railroad and the paved highway there is a cemetery, which, however, cannot be seen from the crossing. At this crossing the south railroad line and the north highway line coincide; there is no private land between. Prior to about 1921, the highway was generally known as the "River to River" road, and went west of Homestead on the south side of the railroad and at the point involved crossed the right of way to the north side thereof and proceeded west approximately a mile, where it again crossed the railroad right of way to its south side and proceeded westward. About 1921, in order to avoid the two grade crossings, the entire road was shifted to the south side of the railroad and the part formerly used on the north side was vacated and was acquired by the Amana Society. Later Highway No. 6 (the old River to River road) was paved and became one of the principal roads of the highway system. The highway records show the elimination of the road to the north of the railroad track on August 29, 1921, and its vacation to the Amana Society. Since that time no work has been done by the public on that crossing. The railroad did not maintain the usual and customary crossing signs. Following the disuse of Highway No. 6 north of the railroad track the old crossing was used as ingress to and egress from the private lands on the north side of the railroad. To the north were open fields, cropped or pastured, some timber, and a small pond or lake. Jack Sterlane, who was the owner and driver of the auto figuring in the collision, lived on the lands of the Amana Society to the north of the highway and had the status of a ground keeper. The gate on the north end of the crossing was erected by the Amana Society after they acquired the land to the north formerly used as a highway. It was kept padlocked much of the time and persons crossing to the private land had to obtain the key to this lock in order to go through the gate. The distance south from the center of the railroad to the center of the paved highway was about two hundred and twenty-five feet. The road or lane which leads from the paved highway across the track to the Amana Society gate runs entirely on the highway and the railroad grounds. It does not go directly north from the paved road to the railroad right of way but leaves the paved slab about five hundred and seventy feet east from the crossing and runs north and northwest in a diagonal direction. Some of the witnesses referred to this road from the highway to the crossing as a lane: narrow, irregular, rutted, and unworked. Jack Sterlane, driver of the car, said that the road had deep ruts and high centers. He further stated that he had no knowledge of any work being done on the lane by way of repairing it and keeping it in shape. The appellee Mae Sterlane, as a witness, said: "We turned north off Highway No. 6 onto the lane and after turning the roadway just meanders over to the railroad."

W.K. Chantry, county engineer for Iowa county since 1929, testified without contradiction that to his knowledge there had been no county maintenance on this lane. He further stated that to his knowledge no official or agent of Iowa county ever claimed that the lane leading off north of Highway No. 6 was a county road. The Amana Society owned the land north of the crossing; they erected and maintained a fence along the north side of the railroad ground; erected and maintained a gate at the north end of the crossing and kept it padlocked during a large part of the year; they allowed people to enter their land through the gate to haul out wood and ice; they issued permits to hunters and fishermen to go upon their land through this gate entrance; without such permission no one had a right to enter. Jack Sterlane, game warden for the Amana Society, lived on their lands to the north of the railroad and used this gate to go to and from his place and carried a key to the gate lock. He testified that he had no knowledge of any work being done on the lane. Louis C. Selzer, aged fifty-three, farm manager for the Amana colonies, said that he had known the crossing since he was a boy; that right after the new road was established the gates were put up at the north end of the crossing. He was asked the following question:

"And since the time the gate was put up there at this crossing and at the crossing to the west, that stretch of road in there has not been maintained or worked by the State Highway Commission or by the County or by any other governmental body, has it? A. No, it has only been used as it was left."

He further stated that the lane was narrow, was rough and rutted: "Nobody takes care of it." There were no planks at the crossing. On a few occasions the railroad put some gravel at the crossing. It was very rough with the rails much higher than the surrounding ground. He stated that it was a part of Sterlane's job to keep "unauthorized persons" out of the land belonging to the Amana Society.

The evidence stands uncontradicted that following the change of Highway No. 6 to the south side of the railroad there was no work of any kind done on the crossing or the approaches thereof; that it ran in an irregular manner to the north and northwest, with turns and angles; that it became a narrow lane full of ruts and cuts. In some places there was not room for cars to meet or pass. No governmental agency claimed it, or exercised dominion or control over it. For a period of about twenty years it was neglected and unused save as permitted by the Amana Society, owners of the land to the north. They barred the way to the public by fence and gate and those seeking to enter had to get permission.

Our statute recognizes two kinds of crossings over railroads: public and private. Section 8018 refers to the public crossings and section 8011 refers to private crossings.

Section 8018 requires that warning signals be given at any "road crossing." The authorities hold that this means a public crossing. Nichols v. Chicago, M. St. P. Ry. Co., 125 Iowa 236,100 N.W. 1115; Weaver v. Chicago N.W. Ry. Co., 146 Iowa 149,124 N.W. 1088; Ressler v. Wabash R. Co., 152 Iowa 449,132 N.W. 827.

As before stated, the trial court held as a matter of law the crossing was a public crossing. The majority opinion affirms that instruction. In considering the authorities cited it is to be kept in mind that the highway is immediately south of the one-hundred-foot railroad right of way. The lane which leaves the pavement is over five hundred feet long and is irregular, winding, rough, rutted, narrow, and crosses the two rails and finds itself confronted by a fence and locked gate on the north side of the right of way. To enter No. 6 from the north there was no primary-road stop sign. This fence and gate have been there close to twenty years. The majority opinion holds that the one hundred feet was a public highway. It had to the north an obstructed dead end.

I will call attention to some authorities dealing with the public and public rights as related to roads and highways, and following this, authorities as to what is an abandonment, how it may arise, and how determined.

The term "public" means: "Pertaining to a state, nation, or whole community * * * Open to all * * * Common to all or many; general; open to common use." Black's Law Dictionary, Third Ed., 1460.

"Public," as applied to highways, means: "A free and public road, way, or street; one which every person has the right to use." Black's Law Dictionary, Third Ed., 893. See, also, Town of Kenwood Park v. Leonard, 177 Iowa 337, 158 N.W. 655; Palatka I. Ry. Co. v. State, 23 Fla. 546, 3 So. 158, 11 Am. St. Rep. 395; State v. Gross, 119 N.C. 868, 26 S.E. 91.

In Allen v. Jones, 47 S.D. 603, 605, 201 N.W. 353, 354, the court said:

"The word `highway' * * * means a roadway or driveway that can be used for public travel. It does not mean a mere right of way upon which a road can be or is being constructed."

"To be a public highway, it must have a terminus, a quo the public can enter it, and a terminus ad quem they can leave it." Manigault v. S.M. Ward Co., 4 Cir., S.C., 123 F. 707, 713, affirmed 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274. See, also, Coulter v. Great N. Ry. Co., 5 N.D. 568, 67 N.W. 1046.

That the crossing was one which was used by certain individuals is not in dispute. As to appellants' claim that there were in the record facts and circumstances which raised a fact question as to whether there had been an abandonment of the place as a publiccrossing, I will cite authorities from this and other jurisdictions.

Abandonment involves an intent and purpose to surrender the right acquired, accompanied by acts indicating that purpose and intent; it is a question of fact and not of law. 1 Am. Jur. 12, section 18; Ray Coal Mining Co. v. Ross, 169 Iowa 210,151 N.W. 63.

It is a relinquishment, renunciation, or surrender to right. Kladivo v. Melberg, 210 Iowa 306, 227 N.W. 833; Pitzenberger v. Schnack, 215 Iowa 466, 245 N.W. 713.

Whether there has been an abandonment in fact is to be determined from the evidence. Wilson v. Daniels, 79 Iowa 132,44 N.W. 246.

"[The statute] contemplates the abandonment of the highway in place of which the new one is established." Stahr v. Carter,116 Iowa 380, 382, 90 N.W. 64, 65.

Abandonment is a fact question. Bradley v. Appanoose County,106 Iowa 105, 76 N.W. 519. See, also, Robinson v. Board of Supvrs., 222 Iowa 663, 269 N.W. 921.

When part of a road is cut off by straightening, or changed by relocation, the easement of the public therein is terminated. Clark v. State, 95 Ind. App. 667, 173 N.E. 233; Ayer v. Kirkwood,9 La. App. 306, 119 So. 475; 39 C.J.S. 1070, section 134; Robinson v. Board of Supvrs., supra, 222 Iowa 663, 269 N.W. 921.

"That a highway which has been duly and legally established may be abandoned by the public and its rights therein lost is settled * * *." Lucas v. Payne, 141 Iowa 592, 596, 120 N.W. 59, 61.

The Robinson case on this question (abandonment) quotes from McCarl v. Clarke County, 167 Iowa 14, 148 N.W. 1015.

In Lucas v. Payne, supra, on the question of abandonment of a highway the court said:

"That a highway which has been duly and legally established may be abandoned by the public and its rights therein lost is settled beyond any controversy by our own cases * * *." Citing Larson v. Fitzgerald, 87 Iowa 402, 54 N.W. 441; Weber v. Iowa City,119 Iowa 633, 93 N.W. 637; Carter v. Barkley, 137 Iowa 510,115 N.W. 21.

"Nonuser is not enough to constitute an abandonment unless coupled with affirmative evidence of an intention to abandon." Schultz v. Stringer, 168 Iowa 668, 677, 150 N.W. 1063, 1065. Citing McCarl v. Clarke County, supra. See, also, Clare v. Wogan,204 Iowa 1021, 216 N.W. 739; Beim v. Carlson, 209 Iowa 1001,227 N.W. 421.

"An `abandonment' is defined as a relinquishment or surrender of rights or property by one person to another * * * It includes both the intention to abandon and the external act by which the intention is carried into effect." Words and Phrases, Perm. Ed., 55.

"In a technical sense the word means the relinquishment of a right; the giving up of something to which one is entitled; the giving up of a thing absolutely without reference to any particular person or purpose." Ballentine Law Dictionary, 1.

"Many cases have defined the term `abandonment' as used in law, but in all of them will be found that intention is an element of abandonment." Albert, J., in Pitzenberger v. Schnack, 215 Iowa 466,470, 245 N.W. 713, 715.

The case of Ferguson v. Ray, 44 Or. 557, 77 P. 600, 1 L.R.A., N.S., 477, 102 Am. St. Rep. 648, 1 Ann. Cas. 1, is authority that whether something has been abandoned is a fact question.

"It is true that abandonment, generally speaking, is a matter of fact and intention, but it may be altogether a matter of fact and law." Gray v. Spring, 129 La. 345, 363, 56 So. 305, 312, Ann. Cas. 1913B, 372.

"Whether a party has abandoned his right to an easement is a question of fact and intention proper for the decision of a jury." Southern Ry. v. Howell, 89 S.C. 391, 395, 71 S.E. 972,973, Ann. Cas. 1913A, 1070, citing Lorick Lowrance v. Southern Ry. Co., 87 S.C. 71, 68 S.E. 931.

Last cited was a law action and submitted to a jury. This case is cited as authority in Orr v. O'Brien, 77 Iowa 253,42 N.W. 183, 14 Am. St. Rep. 277. Cited in Southern Ry. v. Howell,89 S.C. 391, 71 S.E. 973; Parkins v. Dunham, 3 Strob. L. (S.C.) 224.

In Parkins v. Dunham, 3 Strob. L. (S.C.) 224, 228, the question was as to an abandonment of a certain easement. There was involved the question of nonuser. Also there was raised the question of a presumption of abandonment due to lapse of time. In discussing the issues, the court said:

"I would not venture therefore to fix any time for proving, by a non-user, the abandonment of such an easement. But it would appear to be always for the consideration of the jury, as a question of fact and intention."

In that case the court instructed the jury as a matter of law as to an abandonment. Held error, the court saying that it was a proper jury question, "And on this ground alone, a new trial is ordered."

In view of the undisputed facts in this case showing close to twenty years nonuse of this crossing by the general public, no claim thereto by any public official of Iowa county, no work of any kind whatsoever done thereon, a five-hundred-foot strip, narrow, winding, irregular, rough, and rutted, I think that there was at least a jury question, and that for the court to instruct the jury that under the record it was a public crossing was an error calling for a reversal of the case. I would reverse.

HALE, C.J., and MILLER, J., join in this dissent.