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SEC. 767. Railway tracks-street railways. Cities and towns shall have the power to authorize or forbid the construction of street railways within their limits and may define the motive power by which the cars thereon shall be propelled; and to authorize or forbid the location and laying down of tracks for railways and street railways on all streets, alleys and public places; but no railway track can thus be located and laid down until after the injury to property abutting upon the street, alley or public place upon which such railway track is proposed to be located and laid down has been ascertained and compensated for in the manner provided with reference to taking private property for works of internal improvement. [23 G. A., ch. 11, § 1; 18 G. A., ch. 96, § 1; 15 G. A., ch. 6; C. '73, §461; R., § 1064.]

Right to locate railways upon streets: Since the change made in ? 1262 of code of '73, by 15 G. A., ch. 47 (see 2017), the power to authorize the laying down of tracks for street and other railways, and the use of steam motors thereon, does not exist except as here given, the earlier case of Milburn v. Cedar Rapids, 12-246, and many cases following it, being no longer applicable: Stanley v. Davenport, 54-463; Stange v. Hill & West Dubuque St. R. Co., 54-669.

The provisions of this section were not originally applicable to cities acting under special charter: Ibid; Simplot v Chicago, M. & St. P. R. Co., 5 McCrary, 158.

An ordinance authorizing the construction of railway tracks upon city streets, without making the right to occupy such streets conditional upon payment of damages as required by statute, does not confer any rights upon the railway company: Stange v. Dubuque, 62-303.

Where the fee of the street is in the city for the use and benefit of the public, the general assembly has the control thereof, and may prescribe the terms and

conditions under which the public may use such streets: Sears v. Marshalltown St. R. Co, 65-742.

Consent by city council: The statute does not prescribe the manner by which authority may be granted to a railroad company to construct its track upon the streets of the city, and such authority may be given by resolution duly passed, or by vote duly taken, appearing in the proper records of the city: Merchants' Union Barb Wire Co v. Chicago, R. I. & P. R Co., 70-105.

The city council may authorize the laying of a railway track over an alley, although the effect may be to prevent the use of the alley for other purposes. Whether the same rule would apply in case of a street, quære: Heath v. Des Moines & St. L. R Co., 61-11.

But the city council is not authorized to devote an alley to a railway track for the private benefit of some individual; and the fact that leave has been granted to lay the track over an alley for purely private benefit will not prevent a subsequent grant of a right to a railway company to lay a track through such alley for public use: Ibid.

The city having been given by this section the power to grant the right to lay down a railway track over its streets, all else in connection therewith is a matter of detail and within the discretion of the city, subject only to equitable control and proper police regulations: O'Neil v. Lamb, 53-725.

Compensation to property owners: A railway which has been located over the streets of a city, at a time when compensation to adjacent property owners for such use of the street was not required, cannot lay new switches and side tracks in connection with such railway, without making compensation: Drady v. Des Moines & Ft. D. R_Co., 57–393; Merchants' Union Barb Wire Co. v. Chicago, R. I. & P. R. Co., 70-105.

The statutory provisions requiring compensation apply to a railroad authorized by ordinance and partly constructed prior to the time that the change in the statute went into effect: Mulholland v Des Moines, A. & W. R. Co., 60–740; Hanson v. Chicago, M. & St. P. R. Co., 61-588.

Where a railway company had commenced the use of its track constructed under permission granted by the city council before the statutory change requir ing compensation held, that it could not afterward be made liable for damages to abutting lot owners: Merchants' Union Barb Wire Co. v. Chicago, R. I. & P. R. Co., 70-105.

When the road is located upon private property and not upon a street an abutting owner cannot recover damages resulting from the ordinary operation of the road: Rinard v. Burlington & N. R. Co., 66-440. Nor can damages be recovered from the city in such a case from injuries from an embankment: Callahan v. Des Moines, 63-705

The provisions as to making compensation for injury to property abutting on a street upon which a railway track is proposed to be located are only applicable to property owners whose property abuts upon the portion of the street occupied by the track, and not to owners of property abutting upon a street which is merely crossed by the track: Morgan v. Des Moines & St. L. R. Co., 64-589

Under the provisions of 2017 a railway company has the right to cross a street with its track without paying damages to abutting property owners, where it does not occupy the street in front of abutting property. But if it crosses the street at an angle, so that a portion of the track is in front of abutting property, the provisions of this sections as to consent of council and as to damages apply: Enos v. Chicago, St. P. & K. C. R. Co., 78-28; Gates v. Chicago, St. P. & K. C. R. Co, 82-5 8.

The damages to be allowed to an abutting property owner by reason of the construction of a track over a street are not limited to damages arising from a change of grade, but extend to all legitimate damages which are contemplated in other provisions for condemning right of way: Drady v. Des Moines & Ft D. R. Co., 57-393

In estimating the damages caused by the operation of a steam railway along a street where damages to property owner have not been previously assessed and paid, the fact that such operation has diverted travel from the street may be shown in evidence as sh wing the manner in which the rental value of the property has been diminished, and for the purpose of ascertaining the measure of damage: Stange v. Dubuque, 62-303.

In an action for such damages all the facts attending the use and operation of the railroad may properly be given in evidence as bearing upon the effect of the operation of the road on the rental value of the property; such, for instance, as annoyance to the occupants of the property by noise, escape of fire from engines, etc.: Wilson v. Des Moines, O. & S. R. Co., 67-509.

In a proceeding to assess damages to abutting property by reason of the location and operation of a railroad upon a street, the property owner is entitled to be compensated for injuries which he will sustain on account both of the laying down of the track in the street on which his property abuts, and of the appropriation of his land, if any, which is taken for right of way purposes: McClean v. Chicago, I. &. D. R. Co., 67-568.

The provisions of this section as to the manner of assessment of damages resulting from the location of a railway upon the streets of a city refer exclusively to the company and not to the abutting owner; such owner does not have any interest in the fee of the street, and he cannot take steps to have his damages assessed by a sheriff's jury according to the provisions applicable where property is taken for right of way; therefore, he may bring action for damages without such proceeding: Mulholland v. Des Moines, A. & W. R. Co., 60–740.

The provision with reference to assessing damages for laying a railroad track through the streets refers exclusively to the railroad company and not to the abutting owner. The latter cannot have his damages assessed in that manner: Stough v Chicago & N. W. R. Co., 71-641.

As the abutting property owner is not authorized to cause his damages to be assessed, and the corporation alone can institute the proceedings, an action by the property owner may be maintained for damages accruing to him before the assessment is made: Wilson v. Des Moines, O. & S. R. Co., 67-509.

The property owner cannot take advantage of the method of procedure pointed out by this section for the purpose of having his damages from the construction of a railway in the street determined, but can only resort to an action to recover judgment: Harbach v Des Moines & K. C. R. Co., 80-593.

After such an assessment has been made, if the damage is not paid the company may be enjoined from occupying the street on the ground that it is a trespasser and maintaining a nuisance: Ibid.

The fact that the land-owner has brought an action at law for damages and recovered judgment does not preclude him from having an injunction in a proper proceeding to restrain the use of the street by the company: Ibid.

The fact that the railroad company is occupying the streets as the successor of another company under purchase of its franchise at foreclosure sale does not relieve it from being enjoined at the suit of a property owner who recovered judgment against the former company, and the successor cannot plead that the former company occupied by the consent of the land-owner, that defense having been merged in the judgment against such former company: Ibid.

A right of action for injuries to an abutting property owner accrues at once and is entire, and must be brought in five years. Such a right of action does not pass to the grantee under conveyance made subsequently to the time when the right of action accrues, and without an assignment of such cause of action to him, grantee can maintain no action for such injuries: Pratt v. Des Moines N. W. R. Co., 72-249; Jolly v. Des Moines N. W. R. Co., 72-759.

Where a railway track is under ordinance of the city laid in a street or alley without compensation being made to the abutting owner, his right of action for damages accrues at once, and the railroad cannot be regarded as a continuing nuisance. An action to recover damages for such an injury must be brought within the statutory period from the time the street or alley is occupied: Fowler t. Des Moines & K C. R. Co., 91-533.

An approach on a street to a railroad crossing is part of the railroad and the property owner in front of whose premises such embankment is constructed is entitled to recover damages, although the track itself does not run in front of his premises: Hitchcock v. Chicago, St. P. & K C. R. Co., 88-242. In determining whether the street is occupied in front of abutting property, not only the track, strictly speaking, but also any embankment made for the purpose of constructing the track, is to be taken into account, and also any embankment in the street for the purpose of constructing the railroad crossing: Gates v. Chicago, St. P. &. K. C. R. Co., 82-518.

Enbankments forming the road-bed and approaches to highways or street crossings, rendered necessary by the construction of a railroad, are a part of the railway track, within the meaning of this section, and an owner, in front of whose property such an approach is constructed in the street, is entitled to damages: Nicks v. Chicago, St. P. & K. C. R. Co., 84-27.

The compensaton provided for in this section is not for property taken, but for damages to abutting property: Ibid.

Under this section the owner is entitled to recover for injury to the land as well as to his improvments: Ibid.

The rule of damage is the difference in the value of the property before and after the construction of the track, approaches, etc.: Ibid.

Where abutting lot owners join in an agreement that a railway track may be laid down in the street, and it is laid down and operated in accordance with that agreement, any such lot owner or grantee is estopped from questioning the right of the railroad to maintain such track: Merchants' Union Barb Wire Co. v. Chicago, R. 1. & P. R. Co., 79-613.

Damages: A railway company which so negligently builds its track over the streets of a city, or so occupies such streets, as to create a nuisance, is liable in damages to any one suffering therefrom special injuries not common to the whole public: Park v. Chicago & S. W. R. Co., 43-636; Frith v. Dubuque, 45-406.

It is immaterial in such case whether the party injured owns the fee in the street or not: Cadle v. Muscatine Western R Co., 44-11; Frith v. Dubuque, 45 406; Cain v. Chicago, R. I. & P. R. Co., 54-255.

One who is not the owner of the fee in the street can recover only on proof of actual damages: Cook v. Chicago, M. & St. P. R Co., 83–278.

If a railway, therefore, be constructed in a careless, improper and negligent manner, to the injury of an abutting property owner, he may recover damages, provided his injury be special: Cain v. Chicago, R. I. & P. R. Co., 54-255.

So the city may, by ordinance, make and enforce reasonable restrictions, and the use of the street in violation of such restrictions will be a nuisance for which a person sustaining special damage may recover: Ibid.

The benefits to the property may be taken into account but will not entirely preclude recovery: Enos v Chicago, St. P. & K. C. R. Co., 78-28.

In an action by a lot-owner for damages caused by a railway company constructing its road so that the rails were above the established grade, being so constructed on the theory that under the ordinances of the city the company was entitled to lay its tracks on the grade, held, that the company could not object that damages were assessed on the theory that such obstruction was permanent: Eslich v. Mason City & Ft. D. R. Co., 75-443.

A witness may be asked whether the annual premium for insurance would be higher: Ibid.

The city is not liable for damages resulting from the laying down of tracks, etc., under permission granted by it: Frith v. Dubuque, 45-406.

Although a railway company is liable for negligence in failing to keep its crossings where the track intersects the street in proper condition, such liability does not relieve the city from liability for injuries arising from such defects in its streets: Fowler v. Strawberry Hill, 74–644.

As to the measure of damages in such cases, see Cadle v. Muscatine W. R. Co., 44-11; Frith v Dubuque, 45-406; O'Connor v. St. Louis, K. C. & N. R. Co., 56–735; Kucheman v. Chicago, C. &. D. R. Co, 46-356.

Equitable control: The doctrine of equitable control over the use of the streets by railway companies, which was recognized when such companies had the right to use the streets of cities for railway purposes without compensation to property owners or consent of the city, has now no application: Heath v. Des Moines & St. L. R. Co., 61-11.

Street railways: Aside from any special provision in the city charter, it may be regarded as the doctrine of this state that the city may authorize the construction of a street railway in its streets: Damour v. Lyons, 44–276.

An elevated railway is not to be deemed a street railway within the provisions of this section, even though it receives and discharges passengers at street corners, and therefore damages for the construction of such railway must be paid to abutting property owners: Freiday v. Sioux City Rapid Transit Čo., 92–191.

The term street railway as used in the statute must be construed in accordance with the understanding of the use of such terms when the statute was enacted: Ibid.

The provision that a railway track can be located and laid down only upon damages to abutting owners being paid does not apply to street railways, and the city council may authorize the location of such tracks upon the streets without payment of damages caused thereby: Sears v. Marshalltown St. R. Co., 65–742.

In the absence of special authority conferred by the legislature, the city has no power to authorize the use of a steam motor on a street railway, and it will be liable in damages for injuries resulting from the use of such motor on the streets under its permission: Stanley v. Davenport, 54-463.

As to right to permit use of streets by horse railway, see O'Niel v. Lamb, 53– 725.

Under this section a city has the right to grant the exclusive privilege for a reasonable length of time to construct and operate a street railway over any and all streets of the city, but it could not make such exclusive grant in perpetuity. Such a grant to a company to operate a street railway by horse power will not, however, preclude the grant to another company of the right to operate a street railway by other power: Des Moines St. R. Co. v. Des Moines Broad-Gauge St. R. Co., 73-513.

The right to grant an exclusive privilege to operate a street railway did not exist prior to the enactment of 464 of the code of '73, but held, that an ordinance granting such exclusive privilege prior to that time was ratified by action of the city after this section was enacted: Ibid.

Under the decision as to the right of a street railway company under an exclusive charter to lay its track over the streets of a city, held, that acts of the officers of the city in attempting to prevent the company from doing so were a violation of the injunction in that case: Des Moines St. R. Co. v. Des Moines Broad-Gauge St. R. Co., 74-585.

A grant to a street railway company of the exclusive right to operate a street railway over streets of the city by animal power does not prevent the grant to another company of the right to operate street cars by other power: Teachout v. Des Moines Broad-Gauge St. R. Co., 75-722.

Where a street railway was, under its franchise, operating in the middle of the street with a single track, and the construction of a sewer in the same street was subsequently ordered, held, that a provision of the ordinance that such sewer should be constructed in the middle of the street was unreasonable in view of the fact that it might without serious inconvenience or injury to the abutting property be constructed at the side of the street, and thus avoid interference with the plaintiff's track: Des Moines St. R. Co. v. Des Moines, 90-770.

SEC. 768. Street car vestibules. On and after November 1, 1898, every person, partnership, company or corporation owning or operating a street railway in this state shall, from November first of each year to April first following, provide all cars, except trailers, used for the transportation of passengers, with vestibules inclosing the front platform on at least three sides, for the protection of employes operating such cars. Any violation of this section shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars for each day said cars are operated in violation hereof.

SEC. 769. Railway crossings-speed of trains. Cities having a population of five thousand or more shall have power to compel railroad companies to erect, construct, maintain and operate, under such regulations as may from time to time be provided by the council, suitable gates upon public streets at railroad crossings; and cities and towns shall have power to regulate the speed of trains and locomotives on railways running over the streets or

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