Davis v. C. & N. W. R.

Cole, J. [394] 1. pleading: matter:muni.cipaieoipoia [393] I. Our statute (Revision 1860, Sec. 2946), provides- that the conrt may, - on motion, cause irrelevant or [394] redundant matter to be stricken from the pleading. The allegations in the paragraphs of the original petition, from 5 to 17 inclusive, bear no relation whatever to tjie wr0I1g alleged against the defendant. If the occupancy by the defendant, the C. & N. W. R’y Co., of Durant street is illegal, it is no more so because other streets may be occupied by other railroad companies, and if its occupancy is lawful, the occupancy by the others would not make it unlawful. And hte same doctrine would applj to the paragraphs stricken from the amendment to the petition. No evidence could properly be admitted to establish the allegation's of the rejected paragraphs, even if issue had been taken thereon. Still it may not have been improper to aver, as an ultimate fact and to show all the surroundings, that other streets were also occupied by other railroads. The facts in detail as alleged were redundant and are unnecessary, incumbering the record. It was, therefore, no error to strike the same. 2. railroads: street: munition. c°ipou II. As to the demurrers. It was held by the court in Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246, that the legislature of this State, by its right oi way act, has conferred upon railroad companies the right to construct their tracks over and along the streets of towns and cities, the consent of the council being first obtained, and that railroads so constructed cannot be considered as public nuisances. In The City of Clinton v. The C. R. & M. R. R. Co., 24 Iowa, 455, it was held that the same statute gave the right to railroad companies to .so occupy the streets of a city without the consent of the city and without compensation. It may not be out of place for the writer hereof to state that his assent to that conclusion, so far as respects the right to occupy, was based upon the case of Milburn v. The City of Cedar Rapids, supra, and he did not concur in the view that the same could be taken without compensation, and that the same difference of opinion between the majority and the writer is further illustrated in the case of The City of Des Moines v. Hall, wherein the writer hereof dissented, holding that the fee which is vested in the [395] city by platting and recording was limited to the uses for which the streets were dedicated. It was also held by this court in the case of The Newton & Southwestern R Co. v. Mayor etc., 36 Iowa, 299, that, a railroad company has the legal right, under the right of way act, subject to proper equitable control and police regulations, to pass over the streets of a city without the consent of the city authorities, and that such right does not depend upon a previous payment to the city of the damages occasioned by such use of its streets. The same ruling, in substance, was followed in Cook v. The City of Burlington, 30 Iowa, 105, and in the same case subsequently before the court. 36 Id., 357. Such right to occupy a street was also affirmed by this court in Slatten v. D. V. R. R. Co., 29 Iowa, 148; The City of Clinton v. The C. & L. R’y Co., 37 Id., 61, and in Ingraham, Kenedy & Day v. The C. C. & D. N. Co., 34 Id., 249. The meaning of the phrase “subject to proper equitable control,” as used in the cases cited supra, refers to the right of a court of equity to control the railroad companies to the occupation of such streets as shall equally accommodate them and occasion the least practical injury to the city. It does not extend to the power to prohibit or declare such occupation a public nuisance, for that would be to override the statute and to deny the legal right which has been repeatedly adjudged was given to the railroad companies by the legislature in the right of way act. This doctrine has been so frequently affirmed in this State for the last flfteeen years, during which time the same statute has been twice re-enacted, that it is now too late for this court to change its ruling, especially in view of such apparent general and legislative approval. It may not, perhaps, be too much to say that the experience resulting to the public during this time has demonstrated at least the measurable impracticability of a joint and convenient occupancy and use of a street by a railroad company, with its engines and cars, and the general public with their teams and vehicles; but any change of laws which may be rendered [396] necessary by the knowledge coming from this experience can only properly be made by the legislative authority. Since, therefore, the defendant, the C. & N, W. R’y Co., has a legal right to occupy the streets for its tracks without the consent of the city, or compensation to it, the laying of more tracks in any street than was authorized by the ordinance or consent of the city would not of necessity make them a public nuisance. If the railroad company has failed to do its duty in the manner in which it has laid its track upon the public highway, the statute, Rev. Sec. 1321-2-3, provides a remedy. If the manner of laying their track or constructing their road requires alteration or amendment, so as to render the obstruction caused by them as diminutive as is practicable, the plaintiff can secure such amendment under these sections; but such facts would not constitute them a nuisance. . Affirmed.