Stritesky v. City of Cedar Rapids

Kinne, J. -I. This case was determined in the court below upon the theory that the city was not liable for the acts of the street railway company which are complained of. While several questions are argued, the real question is as to the liability of the city. If we shall reach the conclusion that it is not .liable, it will not be necessary to consider the other questions discussed by counsel. It is to be remembered that the city never in fact changed the surface of the street in front of plaintiffs’ premises so as to make it conform to the ordinance of 1886; indeed it never took any steps to enforce the provisions of that' ordinance. As the city had made no attempt to change the physical surface of the street, and make it conform to the grade established in 1886, the plaintiff is in no situation to complain unless the acts of the railway company are to be treated as the acts of the city. Preston v. City of Cedar Rapids, 95 Iowa, 71 (63 N. W. Rep. 580). The real question is, does the ordinance granting the right to the street railway company to enter upon streets and lay its tracks require the company to lay its track in conformity to the 1886 grade ? We discover nothing in the ordinance 377 making any such, requirement. Counsel for appellants admit that the ordinance does not in terms so require. They insist, however, that such is its fair import. The claim is grounded upon the fact that in the ordinance the city reserved the right to change or alter the grade of streets, and the company was required to promptly conform to such changes as made. Now, while it is true that the grade of 1886 superseded that of 1875, still, as we have said, so long as the city took no steps to conform the then surface of the street to the 1886 grade, there was no damage for which plaintiff could recover. Had the ordinance granting the right to the street railway company, in terms, required it to construct its road in conformity to the established grade, the case would be ruled by Preston’s Case; but it did not do so. The railway company could not, in the absence of express authority from the city, determine for it when the surface of the street, as it then, existed, should be made to conform to the new grade. The city had not vested any such power in the street railway company, and until it did so, it could not be liable to a lot owner for an unauthorized act of the railway company which caused damages to him. Preston’s Case is much relied upon by appellant. In that case plaintiff petitioned the city to make certain improvements in front of his property, and it was held he must have contemplated that they would be made on the then established grade. In this case the city authorizes the railway company to occupy certain streets, and to lay its tracks thereon. Now, in the absence of express provision authorizing it, can it be said that the city thereby, impliedly authorized the company to do that which the city had not as yet itself' determined to do ? The case in its facts is quite different from the one relied upon. The city did not, either expressly or impliedly, undertake to make the street railway company its agent to raise the grade of 378 the street in front of plaintiff’s premises, to conform to the ordinance of 1886. If the company did so, it acted at its own instance, and is liable for any wrongful act which has produced damage. The case of McKillop v. Railway Co. (Minn.) (55 N. W. Rep. 739), is in support of our holding. — Affirmed.