Scheckner v. Milwaukee & Prairie du Chien Railroad , 21 Iowa 515 ( 1866 )

Wright. J.

i.railroads: presumption. The third point made by the demurrer indicates very clearly the defendants’ version and understanding of plaintiff’s claim, and the cause of ac^on e011tained in the petition. And herein, as the case now stands, is the. error of the pleader. For it is evidently based upon-the idea that defendants committed the alleged grievances under á license from the town, or under some authority conferred by law or by order of court or inquest of commissioners as contemplated by the statute, in “ granting to railway companies the right of way.” No such case is before us, however, for the petition does not allege that they were acting by authority of any law. On the contrary, it is expressly alleged that defendants were acting wrongfully, illegally and injuriously. If defendants claim that they W'ere acting under a license, inasmuch as the petition itself does not show it, this should be set up by answer; and then its effect and how far it will afford a protection against the alleged injuries can be determined. But against the aliegations of tlie petition — taken to be true — it will not do to assume that defendants were engaged in a lawful undertaking, and, therefore, plaintiff has no right to recover, because his injury is not special, or because, he does not allege that defendants failed to seasonably put said street in good repair or condition. These inquiries cannot legitimately arise if defendants were acting without authority or illegally and wrongfully (Freeland v. City of Muscatine, 9 Iowa, 461); and, under such circumstances, though many other persons might suffer in common with plaintiff, this would not defeat his recovery. Wetmore v. Story, 22 Barb., 414; Milhard v. Sharp, 17 Id., 445.

This is especially so, when it is remembered that the petition alleges that the damages are special to him and not common to the public. City of Georgetown v. Alexandria Canal, 12 Pet., 98.

Several questions are discussed by appellees, but they all assume that they were rightfully engaged in making this embankment and laying down the railroad track. The determination of this question depends upon so many matters not now legitimately before us, that we do not deem it proper to enter upon its investigation. Thus, we do not know whether this embankment was in the limits of a municipal corporation; when the town was laid out; under w'hat law; what authority, if any, was obtained from the proper authorities; the nature and extent of defendants’ charter, if any; whether this embankment conformed to the grade of the street; whether plaintiff built his house conformably to such grade. All these and many other matters of fact are entirely wanting to an intelligible and safe disposition of the other questions made.

We therefore deem it the better course, as plaintiff has made out a prima facie case, to remand the cause, with leave to defendants to answer and thus raise the questions which they have attempted to present on this record.

Reversed.

The case of Magdalena Sehechner against the same defendants, arises upon the same facts and presents the same questions determined in the foregoing opinion, and for the same reasons is

Reversed.