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absence of evidence which shows that the respondent is a trespasser. We do not think a stranger could make complaint, and seek to oust the respondent on account of defects in its tenure, but we cannot concede the other proposition of respondent's counsel, that if it has a licence to cross the lake, one injured by a negligent or improper structure used in crossing might not complain and have relief against the wrong done him, for the reason alone that he does not occupy to the licensee the relation of landlord or grantor. We think the proposition that the United States alone can complain of any wrong done in the construction entirely untenable.
Respondent, while denying the navigability of the lake, contends that even if navigable, this Board has no jurisdiction concernirg the controversy; that it then becomes one of maritime cognizance, and can be determined only by the federal courts. In support of this view, counsel cite Walters v. Steamboat Mollie Dozier, 24 Iowa, 192. In that case, a proceeding in rem against a steamboat for a tortious sinking of a raft, brought under a State law in a State court, was held invalid, for the reason that the laws of the United States, properly enacted, gave to the United States exclusive jurisdiction of proceedings in rem for injuries of the character complained of in that action.
No proceeding in rem is here sought to be maintained; no judgment or decree of any kind is asked for. The parties are not before a court, but before a statutory board, created under a law which gives to it general supervision of railroads in the State, so far as the security, convenience and accommodation of the public are concerned. Their duties and powers are such that they may themselves institute inquiries about any branch of the subject, and they are authorized to make orders in reference thereto, which will, by proper proceedings, be enforced by the courts, if found to be reasonsonable and just. The Commissioners believe they are fully authorized by law to inquire into the facts of this case and make such order as to them seems just. It may be that respondent could be indicted, as suggested by respondent's counsel, for obstructing navigation by means of the bridge in question, but it does not seem to us to follow from that proposition that there may not be other remedies to one aggrieved.
It remains to be determined whether the lake is navigable. Counsel for respondent contends that it is not; that it has been in fact used as a public water for row and sail boats for at least thirteen years prior to the building of the bridge seems certain. In McManus v. Carmichael, 3 Iowa, 1, it was held that if waters could be navigated and were public, they were navigable; the real test being their use, or some public act or declaration. In Rice v. Ruddiman, 10 Mich., 125, the Michigan court held Lake Muskegon, a body of water six miles long and two and a balf miles wide, subject to common right of navigation. In Gould on Waters, it is stated that “a stream is a public highway wherever it is suitable in its natural condition for general use in travel or in transportation of property."-Sec. 107.
We also find in the restrictions imposed upon those railroads to which right of way is granted through the public lands, it is provided that such roads must not prevent other roads from use and occupancy of its line of road
when passing through canons or narrow defiles. Another restriction is that such roads must not cause the disuse of any wagon or other public highway already located, nor prevent the location of new highways, if necessary for public accommodation. It seems quite evident from a consideration of this law that Congress contemplated only a simple grant of the right of way, and intended to protect the public from any annoyance or interference, and we think such a construction of the law would be the only one permissable.
From the facts elicited in this case, applying the rules and tests above indicated, we have no hesitation in holding that Medium lake is a public water and a public way, and that any unwarranted interference with its use by the public when ascertained would be the just occasion for an order from the Board seeking to remove the disturbing cause. But certain facts have been elicited in the evidence which seem to us to raise a doubt as to the propriety of issuing an order in this case. The evidence shows that the best, clearest and deepest part of the lake for the use of boats is north of and above the bridge; that on the south side of the bridge from the foot of the lake-that is, between the bridge and the town of Emmetsburg—the water is more muddy, shallow and marshy. It appears that the depth of the lake at the bridge crossing in 1881, when the bridge was built, was from one to six feet; that the depth at the present time is from one to nine feet, and that since tbe bridge was built the embankment has been made in section 5, thus stopping up the northern outlet of the lake, and resulting, as it would seem, in raising the waters. It seems that this embankment was built by the citizens, and it is supposed to have been voluntary work on their part. It is not apparent that the lower end of the lake prior to the building of the embankment was as valuable for navigation purposes as after the building thereof. Now, when it seems that strangers have changed the condition of things, rendering that an obstruction to navigation which before may not have been an obstruction, the Commissioners are not clearly convinced that an order requiring the respondent to change the structure to meet the changed condition of affairs would be just and reasonable. They are less loth to arrive at this conclusion when they see that the complainants, if their views of the situation are correct, have undoubted remedies at daw, and may obtain substantial relief in the courts.
Des Moines, Iowa, December 31, 1885.
CITIZENS OF WALNUT & VERNON TWPS. vs. B., C. R. & N. R’Y CO. 479
CITIZENS OF WALNUT AND VERNON TOWNSHIPS,
PALO ALTO COUNTY, IOWA,
BURLINGTON, CEDAR RAPIDS & NORTHERN R’Y Co.,
Filed October 24, 1885.
DECISION OF THE COMMISSIONERS.
On October 24, 1885, the Commissioners received a petition signed by sixty-five persons, asking the establishment of a station on section 26, Walnut township, Palo Alto county, and stating that this crossing is seven miles north of Emmetsburg, and that a station there would be a great convenience to the residents of that vicinity. Said petition was referred to the General Managers of the railways. Mr. Ives, President of the Burlington, Cedar Rapids & Northern Railway Co., says in reply, under date of October 26, that he bas investigated the situation, and concluded that the business would not justify a station, as there would be no transfer between the roads, and the other business would not pay for the outlay. Mr. Tucker, Assistant General Manager of the Chicago, Milwaukee & St. Paul Railway, replies in a letter dated October 30 that but two people have been taken from or left at that point since May 28, and says that his road runs only tri-weekly trains. Under the circumstances he asks whether they should be put to the expense of erecting a depot there.
In reply to a letter of the Commissioners reciting these replies, and stating that the only question was one of public convenience, and asking evidence of the public necessity of a station, an affidavit was filed December 11, 1885, sworn to by E. R. McEvoy and thirty-one others, stating that from one hundred to one hundred and fifty farmers and shippers residing in the vicinity would be accommodated at this place; that the nearest station to these people was Emmetsburg, seven miles away. They further state that the business would probably amount to $15,000 to $20,000 the first year, and would increase every year thereafter; also that the station would save the shippers $2,000 expense every year.
The Commissioners visited the crossing on the 28th of April, 1886, and from information obtained, in addition to that previously furnished, reached the conclusion that a station at this crossing would“ promote the convenience and accommodation of the public,” and recommend that it be put in within a reasonable time.
It appears that in addition to the fact that the C., M. & St. P. R'y only runs trains over this road tri-weekly, very little business is attempted to be done by this company between Emmetsburg and Estherville, and that their proportion of the cost and maintenance of this station should bear some redation to their proportion of the business. The Commissioners are at a loss to determine the proportion of the expense of constructing and operating this station that should be borne by the parties, and would recommend that
they make an effort to arrive at an equitable adjustment. In case this cannot be done, on due notice the Commissioners will determine, as near as. they can, what would be equity between them.
Des Moines, Iowa, May 4, 1886.
IN THE MATTER OF THE APPLICATION OF THE UNION DEPOT COMPANY
OF DUBUQUE FOR PERMISSION TO ACQUIRE CERTAIN REAL ESTATE
The petition of the Union Railway Depot Company of Dubuque asking permission to acquire real estate in the City of Dubuque now came to be heard, and being considered, it is by the Board ordered that said company may take and hold the real estate situate in the Dubuque Harbor Company's Addition in said city, thus described, viz.: the east half of blocks one (1) and fourteen (14), nineteen (19) and twenty-ive (25); and all of blocks twenty-six (26) and twenty-eight (28); also a strip of land one hundred feet wide on the easterly side of Iowa street and parallel with said street, from Camp street to First street inclusive, including only parts of blocks two (2), three (3), eight (8), nine (9), fifteen (15) and eighteen (18); and also to acquire and hold such rights in the streets and over, along and across the same in said addition, as in the judgment of said company may be necessary for the convenient use of the premises hereinbefore described, for union depot purposes, as contemplated by the articles of incorporation of said company, such real estate being deemed necessary by the Railroad Commissioners for the location, erection and construction of a union depot and approaches in the city of Dubuque, as provided for in chapter 139 of the laws of the Twentieth General Assembly.
By order of the Board.
PETER A. DEY,
JAMES W. McDILL,
LORENZO S. COFFIN, Dos Moines, Iowa, Jan. 18, 1886.
On the 1st day of November, 1885, A. Evans & Co. delivered at the freight house of the Kansas City, St. Joseph & Council Bluffs Railroad at McPaul, Iowa, two bundles of chairs, three boxes of household goods, one safe, one cook stove (broken), one washing machine, one can and contents, one half barrel and contents, two tubs and three pails' nested,' which were receipted for, owner's risk released.' The goods were marked " A. Evans & Co., Auburn, Nebraska.”
The agent of the railroad company notified the party delivering the goods that the charges would have to be prepaid or guaranteed to destination. On November 2d, the agent received by registered letter four dollars to prepay freight to Auburn, and he then wrote Evans & Co. to forward seven dollars and ten cents more, which would pay the freight to Auburn, and that on receipt of this amount he would immediately forward the goods.
On November 7th, the agent received the $7.10, with instructions to ship them to Onawa, Iowa, instead of Auburn, Nebraska. The goods were forwarded, and the agent noted on the bill of lading " $6.50 in my hands for guarantee." It appears to be a practice among the western railways to require a guarantee of payment on this class of goods. The freight charges. from McPaul to Council Bluffs were $4.60, leaving $6.50 of money in the agent's hands belonging to Evans & Co. . The goods reached Onawa November 10th, and on November 11th Evans & Co. called for them. The freight on the consignment from Council Bluffs to Onawa was 47 cents per hundred pounds, or $3.01, or a total from McPaul to Onawa of $12.60.
Instead of being credited $6.50, the amount left with the agent at McPaul, they were credited when they paid their bill, $4.80.
This discrepancy has not been explained by either of the parties and the Commissioners have been left to their own judgment to ascertain of what. this consisted. They conclude that it was à charge for transfer at Council Bluffs of ten cents per hundred pounds. This would make the entire freight charges $14.30.
The agent at McPaul retained the $6.50 until November 19th, when he forwarded on request of Charles Keith, agent at Council Bluffs. This money he says he held as a guarantee for the payment of the freight charges at destination, but Evans & Co. understood it to be a prepayment of the charges from Council Bluffs north, neither party knowing what the freight from council Bluffs to Onawa would be. Of this fact there can be no doubt;