Chicago, Newton & Southwestern Railroad v. Mayor of Newton , 36 Iowa 299 ( 1873 )

Day, J.

i rauboab • ovra steeertfof 0lty- — Most of the assignments of demurrer are directed seParafe portions of the petition, and raise no question of the sufficiency of the entire petition to entitle the plaintiff to the relief prayed.

Without noticing in detail the various grounds of demurrer, we propose to consider the general question which they seem fairly to present. In the view which we take of the case we deem it unnecess ary to consider the power of the electors of the town by vote to grant to plaintiff the right of way over the streets of the town, or whether such vote conferred upon plaintiff any rights.

The principles settled in City of Clinton v. Cedar Rapids and Missouri River Railroad Co., 24 Iowa, 455, are, to our mind, decisive of the matter involved in this controversy. The city of Clinton had by ordinance declared that no railroad company should be permitted to construct its track across any alley, street or avenue in the city. Notwithstanding this inhibition, and without any authority from the city, the Cedar Rapids and Missouri River Railroad Company entered upon the streets of said city, and commenced the construction of its road over and along the same. From an order of the district court restraining the defendant from such use of the streets, the defendant appealed to this court, and the judgment of the court below was reversed. Three of the judges held that under the general right of way act, a railroad company, subject to equitable control to prevent the abuse of the power, has the right, so far as reasonably necessary, to use the streets in a city.

Upon this question Dillon, Ch. J., expressed no opinion, as he based his conclusion upon other legislation. Wright and Beok, JJ., were of opinion, upon the authority of the People v. Kerr, 27 N. Y. 188, that the company might exercise this right without making any compensation, whilst Mr. Justice Cole was of opinion that the city of Clinton had such an interest in the streets as to be entitled to compensation for any damages which such occupation might occasion. But as the court were unanimous in the opinion that the injunction should be dissolved, no member of it could have regarded the payment of damages as a condition precedent to the right of occupancy.

The views of a majority of the court in that case settle the following propositions: 1. That a railroad company has a right, under the provisions of section 1321 of the Revision, subject to proper equitable control and police regulations, to pass over a street in a city without the consent of the city authorities. 2. That this right does not depend upon the previous payment to the city of the damages occasioned by such occupation. These principles are decisive of the present case. Under them the occupation of defendant’s streets by plaintiff could in no sense be regarded as a nuisance, and the defendant had no right to arrest or in any manner interfere with plaintiff in the prosecution of the work thereon. In this view it becomes unnecessary now to pass any opinion upon the question which before divided the court, as to whether the defendant has such property in the soil of the streets, as to entitle it to damages for the occupation of the same for the right of way for a railroad.

It is sufficient for the present purposes that these damages are not of such character that their payment must precede the use of the street for such purpose.

The demurrer was properly sustained.

Affirmed.