The statute is unconstitutional for the reason that it makes the stipulation not to remove cases to the federal courts a condition for obtaining the permit to do business. Barron v. Burnside, 121 U. S., 186.

1644. Penalty. 21 G. A., ch. 76, § 4. Any foreign corporation that shall carry on its business and transact the same on and after September first, 1886, in the state of Iowa by its officers, agents, or otherwise, without having complied with this statute and taken out, and having a valid permit shall forfeit and pay to the state for each and every day in which said business is transacted and carried on the sum of one hundred dollars to be recovered by suit in any court having jurisdiction. And any agent, officer or employe who shall knowingly act or transact such business for such corporation when it has no valid permit as provided herein shall be guilty of a misdemeanor and for each offense shall be fined not to exceed one hundred dollars or imprisoned in the county jail not to exceed thirty days and pay all costs of prosecution.

1645. 21 G. A., ch. 76, § 5. All acts and parts of acts inconsistent with the provisions hereof are hereby repealed; provided, that nothing contained in this act shall relieve any company, corporation, association or partnership from the performance of any duty or obligation now enjoined upon them or required of them or either of them by the laws now in force.

RIGHT OF WAY ON LEVEES.

1864. May be granted by supervisors. 20 G. A., ch. 186, § 1. Ditches or drains may be located and constructed within the limits of any public highway and on either or both sides thereof, and levees or embankments upon and along the same; provided, they are so constructed as not to prevent public travel thereon. The engineer or commissioner appointed to locate ditches, drains, levees or embankments, may recommend the establishment of a public highway upon and along the route of the same, and the board of supervisors may establish the same on such recommendation in the same manner as on the report of a highway commissioner. All levees built by taxation under the drainage laws shall be under the control of the board of supervisors of the county in which they are situated, and the board shall have the power to grant the right of way thereon to any railway company that will maintain the same while used for railway purposes; provided, the steps for condemnation and payment therefor, contained in chapter four, ́title ten, of the code, shall first be taken by said company; provided further, that nothing in this section shall be construed so as to require such ditches or levees to be kept up at the expense of the county.

TILE DRAINS ACROSS RIGHT OF WAY.

1883. Construction; costs. 20 G. A., ch. 188, § 6; 22 G. A., ch. 96, § 6. Whenever any railroad crosses the land of any person or persons who desire to drain their land for any of the purposes set forth in section one of this act [§ 1878], the party or parties desiring such drain or drains shall notify the railroad company by leaving a written notice with the nearest station agent, stating in such notice the starting point, route or termination of such drain or drains, and if the railroad company refuse or neglect for the space of thirty days to dig across their right of way a drain of equal depth and size of the one dug by the party who sishes [wishes] to drain his land, then

the party who desires to drain the land may proceed to dig such drain and the railroad company shall be liable for the cost of the construction of such drain, to be collected in any court having jurisdiction.

TAKING PRIVATE PROPERTY.

1904. For what uses; width. 1241; 17 G. A., ch. 126. Any railway corporation organized in this state, or chartered by or organized under the laws of the United States or any state or territory, may take and hold, under the provisions of this chapter, so much real estate as may be necessary for the location, construction, and convenient use of its railway, and may also take, remove, and use for the construction and repair of said railway and its appurtenances, any earth, gravel, stone, timber, or other materials, on or from the land so taken; the land so taken otherwise than by the consent of the owners, shall not exceed one hundred feet in width, except for wood and water stations, unless where greater width is necessary for excavation, embankment, or depositing waste earth. [R., § 1314.]

Provisions constitutional. The use for which land appropriated for a right of way is taken is a public one although it is for private profit, and the provisions authorizing the taking of private property for such purpose upon compensation being made are therefore constitutional. Stewart v. Board of Supervisors, 30-9.

Nature and extent of right. The railway company procuring the right of way is the owner of its right of way so long as it is used for railway purposes, and the owner of the land taken has no right to go thereon for the construction of fences or other purposes. Heskett v. Wabash, St. L. & P. R. Co., 41-467.

The company may take, remove and use for the construction and repair of its railway and appurtenances any earth, gravel, stone, timber or other material on or from the land condemned, and is not limited as to the quantity of such materials to be used in the construction and repair of its road. The limitation to so much as is necessary implied under this section relates to the quantity of land to be taken. Winklemans v. Des Moines N. W. R. Co., 62-11.

It would seem that the company may sink wells on its right of way, for the purpose of supplying its engines with water, and would not be liable in damages for thus diverting percolating water from a spring upon the adjoining land of the person granting the right of way. Hougan v. Milwaukee & St. P. R. Co., 35-558.

Timber standing upon the property taken for right of way, other than that necessary for the construction of the railway, remains the property of the owner of the land. Preston v. Dubuque & P. R. Co., 11-15.

The statute by express language authorizes the taking of material for the construction and use of the railway, but under a right of way deed granting an easement “ 'for all purposes connected with the construction, use and occupation of the railway," held, that the railway company was not authorized to take sand for use in constructing a roundhouse, but the owner might take such sand so far as not interfering with the use of the land for railroad purposes. Vermilya v. Chicago, M. & St. P. R. Co., 66-606.

By the condemnation proceedings a corporation requires the right to the exclusive use of the surface of the land, and the condemnation is made on the theory that this use of the surface will be perpetual. Hollingsworth v. Des Moines & St. L. R. Co., 63-443; Cummings v. Des Moines & St. L. R. Co., 63-397; Clayton v. Chicago, I. & D. R Co., 67-238.

The conveyance to a railway of a right of way conveys only an easeBrown v. Young, 69-625.

ment.

Constitutes an incumbrance. The right of way over land for a railway is an incumbrance for which a grantee of land may recover on a covenant against incumbrances, although he knew of the existence of such right

of way at the time of purchasing. Barlow v. McKinley, 24-69; Jerald v. Elly, 51-321; Flynn v. Whitebreast Coal, etc, Co., 72-738.

For the mere use and exercise of a right of way over the property is not sufficient to establish such right or raise a presumption of its existence. Jerald v. Elly, 51-321.

Subject to foreclosure proceedings. Where a railway company takes a deed for a right of way, and enters into possession pending foreclosure proceedings against the property, it is bound by decree and sale thereunder, though not made a party. Jackson v. Centerville, M. & A. R. Co., 64-292.

Width which may be taken. Under the statutory provision allowing the condemnation of a strip of land one hundred feet in width, the company is not limited to fifty feet on each side of its track, but the track may be located anywhere on the tract taken. Stark v. Sioux City & P. R. Co., 43-501.

Additional width. Where a company has the power to build an additional lateral road auxiliary to the original road, the construction and maintenance of which is possible only upon an independent right of way, the right of way statute, limiting the width of right of way to one hundred feet, does not prevent the condemnation of land for such additional road; and the same power may be exercised by another corporation, even though it derives all its means from the first, and builds the road with the express design of leasing it. Lower v. Chicago, B. & Q. R. Co., 59-563.

Where a company entered into possession of and constructed its road over a right of way thirty feet in width acquired by deed, and subsequent proceedings to condemn a right of way seventy feet wide were instituted, held, that the subsequent proceedings must be considered as intended to secure a right of way in addition to that acquired by deed. Gray v. Burlington & M. R. R. Co., 37-119.

When a railway company applies for a hundred feet or less in width for a right of way, it must be conclusively presumed that the amount applied for is necessary, and the fact that the company owns land on one side of such right of way will not limit the amount which it may condemn. Stark v. Sioux City & P. R. Co., 43–501.

As to additional width for depot purposes, see § 1907.

Use by another road. Where right of way over land has been acquired by one railroad the owner cannot have an injunction against another road for using such right of way under agreement with the road to which it belongs. Holbert v. St. Louis, K. C. & N. R. Co., 38–315.

Appropriation of right of way by another company. The easement acquired by a railroad company is acquired to public use, and is in the nature of a grant from the state for the uses and purposes provided by law, and when the company fails to carry out the purposes of the grant, the legislature may transfer the easement to another company upon making compensation to the former company. Noll v. Dubuque, B. & M. R. Co., 32-66; Central Iowa R. Co. v. Moulton & A. R. Co., 57-249.

Transfer to another road. Where a right of way has been deeded to one railway company in consideration of the benefit to be derived from the construction of its line, such right of way cannot be transferred by that company to another proposing to construct a different line not running in the same direction. Crosbie v. Chicago, I. & D. R. Co., 62–189.

Who entitled to Condemn. It is sufficient under the statute to allege that the party seeking to obtain a right of way is a corporation duly organized, and engaged in building a railroad. Chicago N. & S. W. R. Co. v. Mayor of Newton, 36-299.

A foreign corporation could not, before the amendment of this section, procure right of way condemnation proceedings, and might be restrained by injunction from using property for right of way until the right was in some other manner procured. Holbert v. St. Louis, K. C. & N. R. Co., 45-23.

Before the change in the statute allowing foreign corporations to condemn land for right of way, held, that where nothing appeared to the contrary it would be presumed that the condemnation was properly made on behalf of a corporation duly authorized to institute the proceedings. Kostendader v. Pierce, 37-645.

Horse Railways. The provisions for condemning right of way for the use of railway companies are applicable to railways operated by animal power as well as those operated by steam. Clinton v. Clinton & L. H. R. Co., 37-61.

Railways in cities. By § 623 the method of assessing damages for right of way is made applicable to damages caused to abutting owners from the construction of a railway upon the streets of a city, and such proceedings can be instituted only by the company and not by the property owner, who may have an action for damages without regard to the method of assessment thus provided. Mulholland v. Des Moines, A. & W. R. Co., 60–740.

Further as to the rights of railway companies to construct their tracks over the streets of cities and towns, see notes to § 623.

Parol license. Where the company by parol license enters upon ground to construct its railway the subsequent payment of the damage assessed gives it easement by contract, which, though arising upon parol, cannot be revoked. Slocum v. Chicago, B. & Q. R. Co., 57-675.

In such case a subsequent purchaser takes subject to the right of way, whatever it is, if it does not exceed the statutory width, and cannot set up non-user by the company of a portion, and adverse possession thereof, to defeat its rights. Ibid.

Presumption. Where a railway company is conceded to be in rightful possession of a right of way it will be presumed that it has an easement acquired either by condemnation or purchase. Drake v. Chicago, R. I. & P. R. Co., 63-302.

Subsequent condemnation. Where the compensation for the right of way has not only been agreed upon, but also paid to the land owner by the corporation, and he has conveyed the right of way, proceedings to condemn such right of way cannot be instituted, and would be entirely void for want of jurisdiction. Council Bluffs & st. L. R. Co. v. Bentley, 62–446.

In an action against a railroad by an adjacent owner for damages for the occupation of a street in which such adjacent owner holds the fee, it is error to reject a deed from such owner to the company for right of way over his premises. Frith v. Dubuque, 45–406.

The occupation of premises taken for right of way cannot be enjoined for failure to pay therefor under proceedings which have been declared void where the company has a deed granting it a right of way substantially the same as that occupied. Bentley v. Wabash, St. L. & P. R. Co., 61-229.

Where a railway company having a right of way thirty feet in width instituted proceedings to condemn a right of way seventy feet in width, held, that such proceedings must be considered as intended to secure an additional right of way, and that payment of the damages assessed in such proceedings did not cancel the obligation entered into by the company in accepting the deed. Gray v. Burlington & M. R. R. Co., 37-119.

1905. For reservoirs. 1242. It may, also, take and hold additional real estate as its water-stations, for the purpose of constructing dams and forming reservoirs of water to supply its engines. Such real estate shall, if the owner requests it, be set apart in a square or rectangle shape, including all the overflowed land, by the commissioners as hereafter provided; but the owner of the land shall not be deprived of access to the water or the use thereof in common with the company on his own land. And the dwellinghouse, out-house, orchards, and gardens of any person shall not be overflowed or otherwise injuriously affected by any proceeding under this section. [12 G. A., ch. 117, § 1.].

1906. For pipes. 1243. Any such railway corporation may lay down pipes through any land adjoining the track of the railway, not to a greater distance than three-fourths of a mile therefrom, unless by consent of the owners of the land through which the pipes may pass beyond that distance, and maintain and repair such pipes, and thereby conduct water for the supply of its

engines from any running stream; and shall, without unneccessary delay, after laying down or repairing such pipes, cover the same so as to restore the surface of the land through which they may pass to its natural grade; and shall, as soon as practicable, replace any fence that it may be necessary to open in laying down or repairing such pipes; and the owner of the land through which the same may be laid, shall have a right to use the land through which such pipes pass in any manner so as not to interfere therewith; said pipes shall not be laid to any spring, nor be used so as to injuriously withdraw the water from any farm; provided, that such corporation shall be liable to the owner of any such lands for any damages occasioned by laying down, regulating, keeping open, or repairing such pipes, such damages to be recoverable from time to time as they may accrue in any ordinary action in any court of competent jurisdiction. [Same § 2.]

1907. For additional depot grounds. 20 G. A., ch. 190, § 1. Any railway corporation owning or operating a completed railway in the state of Iowa, shall have power to condemn lands for necessary additional depot grounds in the same manner as is provided by law for the condemnation of the right of way: Provided, that before any proceedings shall be instituted to condemn such additional grounds, the railway company shall apply to the railway commissioners, who shall give notice to the land owner and examine into the matter and report by certificate to the clerk of the circuit [district] court in the city in which the land is situated, the amount and description of the additional lands necessary for the reasonable transaction of the business, present and prospective, of such railway company. Whereupon said railway company shall have power to condemn the lands so certified by the commissioners.

Under this act the railroad commissioners have jurisdiction or power to determine in a proper case what quantity of land may be condemned for additional depot grounds, and it is for them to determine how much land is necessary for the proper use of the company, the necessity for a station at that point, and all other questions pertaining thereto. Jager v. Dey, 80-23. The expression "necessary depot grounds" means such land in addition to, that already acquired, as may be necessary for depot purposes, and this may be in addition to the regular right of way, as well as in addition to other land already taken for depot purposes. Thid.

Under a previous statute, held, that a company had no right to condemn additional land for depot grounds, and that therefore any proceeding for that purpose might be enjoined. Forbes v. Delashmutt, 68-164.

MANNER OF CONDEMNATION.

1908. Sheriff's Jury; damages assessed. 1244. If the owner of any real estate, necessary to be taken for either of the purposes mentioned in the three preceding sections | 1904-1906], refuse to grant the right of way, or other necessary interest in said real estate required for such purposes, or, if the owner and the corporation cannot agree upon the compensation to be paid for the same, the sheriff of the county in which said real estate may be situated, shall, upon the application of either party, appoint six disinterested free-holders of said county, not interested in a like question, who shall inspect said real estate and assess the damages which said owner will sustain by the appropriation of his land for the use of said corporation, and make report in writing to the sheriff of said county, and if said corporation shall,