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Abandonment

of road.

CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY.

Filed June 10, 1886.

SYNOPSIS OF THE CASE,

On the 10th of June, 1885, Realto E. Price and one hundred and forty citizens of Elkader and Clayton county, Iowa, filed in this office a complaint, with exhibits, maps and plats, showing subsidies, right of way, etc., that had been granted to the Iowa Eastern Railway Company, in compliance with an agreement made between the citizens and this company that said road be built into the city of Elkader. Complainants set forth in their petition that the Iowa Eastern Railroad Company abandoned that part of the road from Stulta to Elkader, and that their successor, the Chicago, Milwaukee & St. Paul Railway Company, refuse to put in condition and operate the line. They ask that investigation be made by the Commissioners in the matters set forth, and if the facts as stated are found to be true, that they make such order as they have power to do, that the rights of the citizens may be protected.

The matter having been referred to the General Manager of the respondent road, he replied that the position of the Chicago, Milwaukee & St. Paul Railway was that it is not competent for the Commissioners or the State to compel the company to reconstruct the road from Stulta to Elkader; that the powers of the State in a similar case, The Citizens of Northwood v. Central Iowa Ratlway Company, is now pending in the courts, and covers the question whether a railway company can abandon a railroad already constructed.

Pending the decision of the court in the Central Iowa case, this matter was suffered to rest until January, 1886, when the Commissioners notified the General Manager of the C., M & St. P. R’y that in view of the decision of the Northwood case, they deemed it their duty to proceed to an investigation of the questions involved, treating his reply as a plea to the jurisdiction of the Commissioners; they asked him to furnish any evidence, brief or argument for their consideration that he desired. In June, 1886, the Commissioners were notified by the complainants that the railway company was at work putting in this piece of road, and in November following that "the road was extended to Elkader in fine shape, the depot repaired, a large water-tank and wind-mill put up, good stock yards built and scales put in;

that the company was now daily operating its road to the satisfaction of all the business men.” This ends the case, the railway company acting upon the opinion of Judge Ruddick in the Northwood case.

The Commissioners expect that the Supreme Court will very soon decide finally the questions involved in this complaint.

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The respondent in constructing its road, in the year A. D. 1881, built a bridge across a small lake lying just north of Emmetsburg, and known as. Medium lake. It is a pile bridge, seven hundred and eighty-four feet in length, and is constructed without any draw. The bridge crosses the lake about one half a mile north of the foot of the lake at Emmetsburg, which is located along the southern bank or shore. The lake is about five miles long, and has an extreme width of about one half a mile. It has two outlets to the Des Moines river, one in section 18, the other in section 5. The portion of the lake south of the bridge and extending to Emmetsburg is only about one half a mile in length, and not specially valuable for navigation, the lakeabove the bridge being about five and a half miles long, and the best water. A map accompanying this shows the situation. (See next page.]

The complainant, Mr. Innis, represents that for many years before the road was located the lake had been used for sailing rowing, and launching boats for pleasure and other purposes; that the bridge cuts off the best and largest part of the lake from the town, and that it is impossible by reason thereof to run boats on said lake, and the public generally are inconvenienced thereby. That the company is a trespasser on the lake; that it never secured the right of way across it, and refuses to put in a draw-bridge; that he bas boats to hire for use on said lake, and will have more, and contem. plates running & steamer thereon for pleasure, for the use of the public, and and that by action of the respondent company he is greatly damaged and injured, and asks that, if necessary, the Commissioners cause said bridge to be declared a nuisance and an obstruction, and for such relief as the Com-missioners may feel empowered under the law to grant. About fifty citi-

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zens, claiming to be residents and property owners on the lake shore and in the city of Emmetsburg, ask the Commissioners to order a draw to be put in the bridge.

The respondent, in reply, says the bridge was built in the winter of 1881; that Medium lake is a meandered body of water, and the title is in the United States; that to build a draw as desired would cost ten thousand dollars, that there is sufficient room to pass row and sail boats under said bridge, if the mast is lowered while passing under; that no boat operated by steam could be navigated where the bridge is located.

The evidence submitted by the parties seem to establish the following facts: That the depth of water where the bridge crosses the lake, at the time the same was built, varied from one to six feet, and the depth at the present time varies from one to nine feet; that since the building of the bridge an embankment has been built in section five (5), near the north end of the lake, which has had the effect of stopping up the outlet, and raising the water in the lake, that the best, deepest and clearest water for the use of boats is north and above the bridge; that on the south side of the bridge from the foot of the lake the water is more muddy, shallow and marshy. As to the cost of the draw, the parties differ, the complainant claiming that it would cost but $3,000, and that there would be no need of an engine at the draw. The witnesses for respondent fix the cost of the draw at $10,000, and a standing expense of $50 per month for a man at the engine operating the same. The evidence also shows that the lake is meandered, and the title in the United States. It is also clearly shown that for at least thirteen years prior to the establishment of the bridge, sail and row boats were used on the lake, and one boat was in use which could carry about thirty passengers. The level of the water is now about three feet below the lower cap of the bridge, and a row boat can only be passed under by the rower lying down in the boat. A. sail boat can only be passed under by lowering the mast, and such passage is very incovenient and dangerous.

It is urged by the respondent that the title to the lake being in the United States, and the citizens having no title, leasehold or other interest in the water or the soil under it, they are strangers, and have no right to complain; and further, that the United States has, by act of Congress approved March 3, 1875, granted to any railroad company the right of way through governiment lands, and that the legal presumption is that respondent has fully complied with all the requirements of that act, and has full authority for the location of its railway over the lake. The act of Congress referred to, chapter 152, acts of the Forty-third Congress, approved March 3, 1875 (see U.S. Statutes, page 482), grants the right of way, but it only grants to those railway companies which comply with its conditions, and accepting the grant, they are subject to its limitations and restrictions. Before any railroad company can enjoy such a grant it must file with the Secretary of the Interior proof of its organization, with a copy of the articles of incorporation.

While we do not feel called upon to hold with counsel for respondent that there is a legal presumption that it is a grantee of the right of way under this act of Congress, we do however feel justified in holding that there is a

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