Franz v. The Sioux City & Pembina R. , 55 Iowa 107 ( 1880 )

Rothrook, J.

1. atUNICIPAIi corporations: crossing oí ^ roals^ dam-1’ ages. — It will be'observed from the foregoing statement of facts that the railroad was constructed in the year 1872. The evidence shows that the change in ° • the grade of Third street was the occasion of the ° alleged damages. This was done in order to bring said street, at the point where the railroad crossed it, to a level with tbe railroad track, to make a safe and convenient crossing.

The theory of the plaintiffs is that the railroad company had no right to enter upon the street and remove the earth, and that the city could not give any such authority; in short, that the defendants were both tresspassers, and counsel insists that the right of action, which he designates as an action of trespass, can be maintained. He claims that the owners of lots in Sioux City own to the center of the adjacent streets, and for that reason the defendants were trespassers when they entered thereon and made excavations and embankments, and constructed a railroad. Whether they would have been liable as trespassers under such circumstances we need not determine, because the evidence shows that the title to the streets in the city is not in the adjoining lot owners, but that the streets and alleys were dedicated to the public by the filing of a map and plat and certificates, indorsed in accordance with the laws of this State. It clearly appears that the fee in the streets and alleys is in the public, the same as in nearly all the cities and towns in this State. In this state of the title to the streets it has again and again been determined, under the law in force when this road was built, that a railroad may lawfully be constructed upon such streets. We need not cite the cases, they are familiar to the profession.

The court correctly held that the plaintiffs could not recover, if for no other reason because no claim was made that the road was not carefully, skillfully and prudently constructed.

Affirmed.