C. R. & St. P. R. v. Spafford

Miller, Ch. J. —

The question presented by the record amounts to this: whether a promise to pay a certain sum of money to a railroad company, which has surveyed several lines through the farm of the promisor, made in consideration that the line or a line nearer to a public highway than any other line proposed, shall be adopted by the company, when such line is so near the public road as to have the effect to frighten teams passing thereon, is so contrary to public policy as to render such promise void?

*296 It is well settled that all contracts which are distinctly prohibited by law, or morality, or public policy, are void. See cases cited in note u, page 716, 2 Parsons on Contracts, 5th edition. Section 1321 of the Revision authorizes railroad companies to construct their roads over and ujion the public highways. Milburn v. The City of Cedar Rapids, et al., 12 Iowa, 216; City of Clinton v. C. R. & M. R. R. Co., 21 Iowa, 155; Chicago, N. & S. R. Co. v. The Mayor of Newton, 36 Id., 299. So that it is a part of the public policy of the state to authorize railroads to be laid down upon the public highways. The statute (§ § 1311, 1315, 1316, 1317, 1318, 1319, and 1320, of the Revision) at the time when the plaintiff’s line was established, authorized railroad companies to take and hold so much land for their right of way, not exceeding one hundred feet in width, as should be necessary for the location, construction and convenient use of their roads respectively, irrespective of whether it was located near a public highway or not, by paying the damages when private property should be taken. The law authorized the railroad company to locate its road just as it did. The agreement to do so was therefore an agreement to do that which was expressly authorized by the law; and being thus authorized it cannot be held to be against public policy, nor a nuisance, although it may render the use of the public highway less safe for public travel. The judgment of the court below will be

Affirmed.