(177 N.W.) The evidence shows that this Wheeler | which it passed. The record shows that lane furnished a fairly good and sufficient Wheeler, not only consented to its use, but road to, and a fair and reasonable exit from, his land on the north to his land on the south. The defendant Ball testified: "I drove a gang plow over that lane on the west end of the Wheeler 80 this spring for the purpose of plowing, and nearly mired my team as I came out right at the outlet. I could possibly mire a team on that road before I get on my wife's land, right at the outlet. There is just a little piece washed out at the outlet, that has been worn down by the cattle walking down there and permitting this to wash out, and it has never been fixed. I didn't try to fix it. It wouldn't take much trouble to fix it. I didn't want to fix it." [2] It will be noted that the statute does not fix the character or the width of the way, the existence of which must be negatived in order to justify this proceeding, but simply fixes the maximum width in the event condemnation proceedings are carried out. The statute provides that one owning land, and not having a public or private way out from the land, may avail himself of the provisions of this statute. The statute must be construed to mean that one who has reasonable ingress and egress to his land, over a private or public way, cannot avail himself of the statute and condemn a public way over the land of another. [3] It may be argued, however, that the lane on the west of the Wheeler land, even though conceded to be a private way, within the provisions of the statute negativing the right to maintain the proceedings to condemn, did not lead to a public highway. It led, however, to defendants' land on the south. This north land was farmed in connection with the land on the south. The defendants' home and all their buildings are on the land on the south. There is a public highway immediately adjoining defendants' land on the south. This lane gave access to the land on the south, and enabled plaintiff, by proceeding over his own land, to reach the public highway to which he was entitled to access, and this without let or hindrance. Where one owns land from which there is a private way to other land owned by him, and it is made to appear that the other lands are on a public highway, it would seem to be not within the spirit of the statute to permit him to relieve his own land of the burden of a public highway and place that burden upon his neighbor. For 11 years this lane along the west side of Wheeler's land had been open to the use of the defendants, and had been used by them for ingress and egress. It had been used without objection from the owner of the soil. No instructions were placed in the way of its use. Wheeler made no objections, and Wheeler was the owner of the soil over fenced it so that it might be used exclusively as a lane and for ingress and egress, and that the fence was kept up, some repairs made by Wheeler, and some by the defendThe preponderant after it was erected. ance of the evidence shows that this way was in good condition for travel, and that plaintiff could reach the public highway, on the east of his south 80, over this lane, by crossing his own land. Before [4] It may be argued, however, that the right to use this lane was a permissive right only, and was not a vested right. this action was commenced, however, Wheeler, at the instance of the plaintiff, tendered to defendants-in fact, delivered into their possession-a good and sufficient warranty deed, conveying to them an absolute title to the land covered by this lane. The defendants, though seeming to desire a permanent outlet from their north land, contumaciously would accept no other way, except that refused to accept it, and insisted that they which was obtained through the condemnation proceedings, and which was proposed by them to be opened under such proceedings. When condemnation proceedings, under the statute, are contemplated by a party who claims to have neither a public nor a private way to his land, it would seem, from a reading of the statute, that the thought is implied there that there must first be some attempt to procure a right of way of ingress and egress, which will be fair and just to both parties, and a refusal. The Wheelers had given the use of this strip, its use had been accepted, and it had been continuously used for the purpose of ingress and egress for more than 11 years. It was a reasonably sufficient way for ingress and egress. The only objection that could reasonably be urged to it is that it was permissive only. However, before the proceedings were commenced, its permissive character was destroyed, and an absolute right tendered. The fact that a right of way sufficient for ingress and egress was tendered absolutely and unequivocally, to the use of the party desiring ingress and egress, when it affords him a reasonably sufficient way for ingress and egress, negatives the idea that he may proceed under the statute to condemn a public way. The thought herein expressed is suggested in what was said by Justice Sherwin in the opinion filed in Carter v. Barkley, 137 Iowa, 515, 115 N. W. 23. What was said by Justice Sherwin there was upon the point urged-that the plaintiff had a right of way. The evidence disclosed that they did not have an absolute right to use the right of way against the objection of the owner of the land over which the right of way passed. The court said: "Unless a party has a way, either public or private, which is unobstructed and unquestioned, he may institute proceedings under the statute. If the defendants herein had said to the plaintiffs, 'You have a way from your land north, and we do not question your right to use it without the obstruction of gates,' a different question would be presented." The defendant is not entitled to more than one way of ingress and egress. In Fisher v. Maple B. Coal Co., 171 Iowa, 491, 151 N. W. 824, this court said: "It is true that, when the condemnor comes within the statutory conditions, he may take his choice as between a highway and a railway con nection. But he can have only the one way.' CITY OF DUBUQUE V. DUBUQUE ELEC No limitation is put upon his use of such way as he acquires. He may use it as a wagonway or railway, and probably both. But, having acquired the one or the other, he may not again condemn for outlet purposes; and it matters not, under the statute, whether he has acquired his previous outlet by condemnation or by private contract." It is the general holding of the courts that statutes conferring the power of eminent domain are to be strictly construed in favor of the private owner. Rensselaer & S. R. Co. v. Davis, 43 N. Y. 137; Bishop v. N. Adams Fire Dist., 167 Mass. 394, 45 N. E. 925; City of E. St. Louis v. St. John, 47 Ill. 463; Chicago & I. Ry. Co. v. Wiltse, 116 Ill. 449, 6 N. E. 49; Ligare v. Chicago, 139 Ill. 46, 28 N. E. 934, 22 Am. St. Rep. 179; Elroy v. Kansas City (C. C.) 21 Fed. 257. TRIC CO. (No. 33154.) (Supreme Court of Iowa. May 4, 1920.) I. Street railroads 28 (4)-Franchise held not to authorize construction of loop. A street railroad franchise, authorizing the construction of necessary side tracks, turnouts, and switches, when construed, as it must be, strictly against the grantee, does not authorize the construction of a loop. 2. Evidence 20 (2)-Court knows that side tracks, switches, etc., occupy less space than a loop. The court knows without evidence what side tracks, turnouts, and switches of a street railroad are, and knows that they occupy less space in a street and would constitute less obMc-jection than a loop. We might stop the consideration of the case here, but a further fact appears in the record; that is, that the plaintiff, on the trial of the case, tendered to the defendants an absolute right of way from his north land to the public highway, which he seeks to reach by condemnation, to and over one of the public streets of the town of Strawberry Point. This road so tendered affords a fair and reasonable ingress and egress from the north line of defendant's 40 to the highway leading into Commercial street on the east of plaintiff's fairgrounds. It appears further in this record-though not a controlling thought -that to permit defendants to open this road, where they propose to open it through condemnation proceedings, would cause irreparable injury to the plaintiff's premises and the business carried on there. The law and equity are both with plaintiff upon the basic right in controversy. It is contended, however, that the court erred in permitting plaintiff to file an amendment tendering a deed over land leading to the public streets of Strawberry Point, but this we need not consider. It in no way prejudiced any of the rights of the defendants determinative of this controversy. 3. Street railroads 28 (1) Franchise to construct track "from" street gives no right to occupy street. A street railroad franchise, authorizing the occupation of certain streets and no other, among them a street from Grandview avenue to a destination, does not give any right to occupy the named avenue; "from," as a general rule, excluding the terminus referred to. and Phrases, First and Second Series, From.] 4. Street railroads 28(1)-Franchise meaning to be determined from whole instrument. [Ed. Note. For other definitions, see Words The meaning of a street railroad franchise is to be determined by a fair and reasonable construction of the whole instrument with regard to true intent of parties as expressed therein. Appeal from District Court, Dubuque County; J. W. Kintzinger, Judge. Action in equity asking an injunction against defendant. There was a decree entered in October, 1918, for the plaintiff, restraining defendant from operating its street cars over and upon the loop, as laid and constructed, upon Grandview avenue, and enjoining defendant from using said loop as a part of its street car lines. There was a Upon the whole record we find the defend- | judgment against defendant for costs. The ants are not within the protection of the stat- defendant appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (177 N.W.) Nelson, Duffy & Nelson, of Dubuque, for (in and to the free and unobstructed use of appellant. Grandview avenue. That soon after defendM. H. Czizek and M. D. Cooney, both of ant began to construct said loop, and before Dubuque, for appellee. PRESTON, J. The petition was filed August 18, 1915, and against the Union Electric Company, a corporation, organized under the laws of Iowa. Defendant Dubuque Electric Company, a Delaware corporation, in July, 1916, purchased and took over the street car system of the Union Electric Company. it was completed, plaintiff served notice upon the defendant to discontinue the construction, and remove its rails, etc., which defendant refused to do, and has ever since continued to operate its line of railway upon said street. Plaintiff has no speedy or adequate remedy at law. Defendant makes the following admissions: It is the successor to the Union Electric Company, and acquired all the rights of said It is alleged substantially: That plaintiff company, and assumed the obligations of said is a special charter municipal corporation. company, and its predecessor was granted a In 1902 the Union Electric Company was franchise as alleged. Grandview avenue is granted a franchise to operate its various a public street. Permission was requested lines of street railway upon certain designat- to construct a loop, and that this was refered streets for street railway purposes, and red to the committee, and granted by the according to the terms of said franchise, said council, and avers that, before the report of company is limited to the streets therein the committee of the whole to the council, the named. A copy of the ordinance or franchise members of the council, in a body, went to is attached to the petition. Grandview ave- the proposed site of the loop, had the radius nue is a public street, open for traffic, and and the space pointed out to them, and that is not one of the streets upon which said said loop is constructed partly on Grandview company was granted any right or franchise avenue, and partly on South Dodge street, at to use. November 15, 1914, defendant's pred- the junction of said avenue and street, of a ecessor, through its general manager, peti-radius of about 40 feet. It constructed the tioned the mayor for the right to construct a loop under the proceedings referred to, and loop at the terminus of its South Dodge and alleged that, after laying its rails, it paved Linwood line, as an extension to said line of the space between the rails and a foot on railway, to be constructed from the end or either side with brick, and set one pole for terminus of said line on South Dodge street, its wires used on the loop; admits no notice upon Grandview avenue, and to occupy the of the application of defendant to receive a street between the curbs on said avenue with franchise, or grant to it the privilege to conthe necessary ties, rails, wire, and poles. Said struct and extend its line of railway in the petition was, by motion, referred to the city form of a loop on Grandview avenue, was council's committee of the whole, which comever published the required number of times mittee reported in favor of granting said as by law provided; admits no ordinance petition, and which report was approved by was passed by the council granting the right the city council. That the Union Electric to occupy Grandview avenue with the loop, Company, acting upon such proceedings, tore as an extension of its system, and the only up the surface of the street, laid its track, formal action taken by the council was the and constructed said loop as an extension of passage of the motion referred to. The its street car line. Said loop is now being mayor did not issue a written permit to ocused by defendant as a part of its Southcupy the street, and avers the installation of Dodge Street and Linwood line. No ordi- the loop is not an extension of its railway nance was ever passed by the city council, system, and that no part of said railway is granting defendant the right to occupy laid upon Grandview avenue as a street railGrandview avenue with said loop, but the only way system, and that the loop is but an enaction taken by the council was the passage of largement of the facilities which the franthe motion referred to, nor did the mayor is- chise holder employs in exercising the power sue a written permit to occupy said street. originally granted; avers that the applicaNo notice of the application to construct and tion to the mayor was not an application for extend its line in the form of a loop on said a franchise to operate upon Grandview aveavenue was ever published officially in any nue, but the privilege asked for and grantnewspaper. That the construction and oper- ed by the council, was in the nature of a ation of said loop and its appurtenances, and switch or turnout, to enable the company the extension of defendant's system over greater facilities to operate its cars under and along Grandview avenue, is unlawful, its franchise; denies that the construction and wholly without right or authority, and and operation of the loop is unlawful; deby reason of its location, construction, and nies that it was served with notice shortoperation constitutes a nuisance, is a tres-ly after beginning the construction of the pass, is a menace to the public, and is an loop, but avers that, shortly before the unlawful interference with plaintiff's rights loop was completed, it was notified to cease its operation, which notice was not heeded. [ ed under the adoption of the said report of the It will continue to operate the loop unless committee of the whole, went upon the premises denied the right to do so; denies that plain- pointed out to the members of the city council, tiff has not a speedy remedy at law; avers and constructed said loop in conformity with that defendant relied in good faith upon the the draft shown upon the blueprint map, marked Exhibit D, hereinbefore referred to, and permission granted, and expended money for paved the space occupied between its rails, and labor and material, which has not been re- one foot on either side thereof, with brick, renpaid; denies all allegations not admitted. dering the whole surface, including the rails, even with the surface of the street, and that it set but one pole to accommodate its wires for the conduct of its cars about said loop. The case was tried upon an agreed state. ment of facts, and an amendment thereto, which follows: "1. It is agreed that the defendant Dubuque Electric Company is the successor of the defendant Union Electric Company, has acquired all the property, rights, privileges, franchises, etc., of the said Union Electric Company in the city of Dubuque, Iowa, and has assumed the duties, obligations, and responsibilities of the defendant Union Electric Company, and is engaged in the management, operation, and control of the properties described in plaintiff's petition, with the same rights and obligations as the defendant Union Electric Company. "2. It is admitted that the defendant Dubuque Electric Company is limited in the operation of its railway system to the streets named in its franchises, excepting as to rights acquired by necessary implication, including such rights, if any, as were granted by the adoption of the report of the committee of the whole on March 4, 1915, referred to in the pleadings. "3. It is admitted that the defendant Dubuque Electric Company has no franchise to lay its tracks or ties or rails on Grandview avenue as a part of its street railway system, excepting such rights as may be conveyed in the general grant to install switches, turnouts, etc., and as contained, if any, in the grant of March 4, 1915, by the adoption of the report of the committee of the whole referred to in the pleadings, and such as were acquired by necessary impli cation. "4. It is admitted that on or about November 15, 1914, the defendant Union Electric Company petitioned the city council of the plaintiff city for the privilege to construct, among other things, a loop at the terminus of its South Dodge Street line of the character and dimensions as shown on blueprint map prepared by Eugene Anderson, civil engineer, on file in this case, and which is marked Exhibit D. "5. It is admitted that, before the report of the committee of the whole referred to in the pleadings in this case was made to the city council of the city of Dubuque, all of the members of the city council of the city of Dubuque, while acting as a committee of the whole and in a body, accompanied a representative of the said Union Electric Company, to the proposed site of the loop, and made a personal examination on the ground of the location of said loop, had the radius of the same pointed out to them, and that said loop is constructed partly on Grandview avenue and partly on South Dodge street, at the junction of Grandview and South Dodge street of a radius of about forty (40) feet. "6. It is admitted that the defendant Union Electric Company, acting under the authority of the city council of the city of Dubuque, grant "7. It is admitted that the only extension granted to and accepted by the defendant Union Electric Company is as is shown on the said blueprint map marked Exhibit D. "8. It is admitted that the rails used in the construction of said loop were manufactured under a special order, and were on the ground before the work was commenced; that the work of the installation of the loop was begun on July 15, 1915, and completed on August 25, 1915; that the city of Dubuque notified the said defendant Union Electric Company on August 16, 1915, to discontinue the installation of said loop; that at the time of the service of this notice all the work on said loop had been completed, except the laying and placing of the rails, and the filling and paving of the street, at an outlay for labor and materials of approximately the sum of eighteen hundred ($1,800) dollars. "In compliance with the suggestion of the trial court, the agreed statements of facts hereinbefore filed is herein enlarged or made more definite and specific: "1. It is agreed that the ordinance, which is attached to the petition and referred to in paragraph 2 of the original stipulation, is substantially the franchise of the company. "Paragraph 5 of the stipulation is made more specific in the following particular, to wit: "The report of the committee of the whole of the city council of the city of Dubuque, referred to in said paragraph 5, is as follows: 'Your committee of the whole, to whom was referred the petition of the Union Electric Company, asking permission to construct a Y at the end of the Linwood line on Davis avenue and a loop at the end of the Dodge street line, would respectfully recommend that the prayer of the petition be granted and that the space occupied by the track and one foot outside the rails be paved with brick. "William Singrin, Chairman.' "On motion of Alderman Singrin the various reports of the committee of the whole were adopted. "The extension referred to in paragraph 7 of the stipulation, if there be any extension, was created by the adoption, upon motion of Alderman Singrin as above shown by the city council of the city of Dubuque, of the report of the committee of the whole of said city herein above set out. The plat referred to in the stipulation of faets, as now amended, shows the distance between the rails and the curbs on the east and west side of Grandview avenue." It would be difficult to give a good idea of the situation by any description; hence the blueprint plat, Exhibit D, is here set out: The request for permission to construct | brakes, and it will facilitate the movement of the loop is as follows: "To the Honorable the Mayor, Dubuque, Iowa: "Dear Sir: Permission is hereby requested to construct a loop at the end of the Dodge Street line and a Y at the end of the Linwood line on Davis avenue. This is to permit the operation of single end cars, that we can equip with air cars on this division, and we hope enable us to "Union Electric Co., |