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through the limits of the city or town. [25 G. A., ch. 5; 22 G. A., ch. 16, § 1; C. '78, § 456; R., § 1057.]

An ordinance regulating the speed of trains must be reasonable in order to be valid, and the question of whether or not it is reasonable as applied to portions of the oity where the track does not run through land platted and used for residence or business purposes, is for the court: Myers v. Chicago, R. I. & P. R. Co., 57-555.

And this rule is applicable to an ordinance under the express authority of this section: Burg v. Chicago, R. I. & P. R. Co., 90-106.

In a particular case, held, that the ordinance limiting the speed of trains within the city limits to ten miles an hour would not be deemed unreasonable with reference to a crossing three-fourths of a mile from the depot, it not appearing but that the crossing was one in general use, and a dangerous one if a higher speed should be permitted: Larkin v. Burlington, C. R. & N. R. Co., 85


A railway company is liable for injuries to persons at crossings when such injury is due to the train being run at a greater speed than allowed by city ordi.nance: Ward v. Chicago, B. & Q. R. Co., 65 N. W., 999.

In an action to recover damages against a railway company for negligently causing the death of a person on its track, the fact that the engine of defendant was being operated within city limits at a higher rate of speed than allowed by the ordinance may be shown without proof that the accident was directly due to the train being operated at excessive speed: McMarshall v. Chicago, R. 1. & P. Co., 80-757.

In an action for injury received at a railway crossing from a train running at an unlawful speed, plaintiff may prove that he had knowledge of the ordinance: Moore v. St. Paul & K. C. R. Co., 71 N. W, 569.

SEC. 770. Viaducts-when required. Cities having a population of seven thousand or over shall have power to require any railroad company, owning or operating any railroad tracks upon or across any public streets of such city, to erect, construct, reconstruct, complete, and maintain, to the extent hereinafter provided, any viaduct upon or along such streets, and over or under such tracks, including the approaches thereto, as may be declared by ordinances of such city necessary for the safety and protection of the public. The approaches to any such viaduct shall not exceed a total distance of eight hundred feet, but no such viaduct shall be required on more than every fourth street running in the same direction, and no railroad company shall be required to build or contribute to the building of more than one such viaduct, with its approaches in any one year; nor shall any viaduct be required until the board of railroad comm'ssioners shall, after examination, determine the same to be necessary for the public safety and convenience, and the plans of said viaduct, prepared as hereinafter provided, shall have been approved by said board. [22 G. A., ch. 32, § 1.]

SEC. 771. Assessment of damages. When a viaduct shall be by ordinance declared necessary for the safety and protection of the public, the council shall provide for appraising, assessing and determining the damages which may be caused to any property by reason of the construction of the same and its approaches. The proceedings for such purpose shall be the same as are provided in case of taking private property for works of internal improvement, and the damages assessed shall be paid by the city out of the general bridge fund. [Same, § 2.]

SEC. 772. Specifications. The width, height and strength of any viaduct and the approaches thereto, and the material and manner of construction thereof, shall be such as may be required by the board of public works and approved by the mayor and council, but if there is no board of public works, then such as may be required by the council. [Same, § 3]

SEC. 773. Apportionment of cost-repairs. When two or more railroad companies own or operate separate lines of track to be crossed by a viaduct, the proportion thereof, and the approaches thereto to be constructed by each, or the cost to be borne by each, shall be determined by the council. After the completion thereof, any revenue derived therefrom by the crossing thereon of street railway lines shall constitute a special fund, and shall be applied in making repairs to such viaduct. One-half of all ordinary repairs to such viaduct or its approaches shall be paid out of such fund, or be borne by the city, and the remaining half by the railroad company; and if the track of more than one company is crossed, the costs of such repairs shall be borne by such companies in the same proportion as was the original cost of construction. [Same, § 4.]

SEC. 774. Refusal to comply. If any railroad company neglects or refuses, for more than thirty days after such notice as may be prescribed by ordinance, to comply with the requirements of any ordinance passed under the provisions of this chapter, the city may construct or repair the viaduct or approaches, or any portion thereof, which such railroad company was required to construct or maintain, and recover the cost thereof from such company. [Same, $ 6.]



SEC. 834. Assessments on railways and street railways. All railway and street railway companies shall be required to make, reconstruct, and repair all paving, graveling, or macadamizing between the rails of their tracks, and one foot outside thereof, at their own expense, unless by ordinance of the city, or by virtue of the provisions or conditions of any ordinance of the city under which said railway or street railway may have been constructed or may be maintained, it may be bound to pave, gravel, or macadamize other portions of said street, and in that case said railway or street railway shall make, reconstruct and repair the paving, graveling or macadamizing of that part of the street specified by such ordinance; and such improvement, or the reconstruction or repair thereof, shall be of the material and character ordered by said city, and shall be done at the same time that the remainder of said improvement is made, reconstructed or repaired. When the same is made or completed, said company shall lay, in the best approved manner, such rail as the council may require. They shall keep the paving, graveling or macadamizing between said rails, and one foot outside thereof, or such other part as they are liable to construct or maintain, up to grade and in good repair, using for such purpose the

same material as is used for the original paving, graveling or macadamizing, or such other material as the council may order. If the owner of said railway or street railway shall fail or refuse to comply with the order of the council to make, reconstruct or repair such paving, graveling or macadamizing, such work may be done by the city, and the cost and expense thereof shall be assessed upon the real estate and personal property of said railway or street railway company within the corporate limits of said city, and against such railway or street railway company, in the manner hereinbefore provided for the assessment of such cost against abutting property and the owners thereof. [25 G. A, ch. 7, § 10; 23 G. A., ch. 9, § 1; 22 G. A., ch. 16, § 1; 20 G. A., ch. 20, § 6.]

The provision requiring paving of portions of the street outside of the tracks is not unconstitutional as applied to street railways incorporated when the statute only required pavement within its tracks. Such a change is within the power of the legislature with reference to the regulation of corporate franchises: Sioux City St. R. Co. v. Sioux City, 78-367; affirmed, 138 U. S., 98.

The provisions of this section are not invalid as applicable to a street car company whose franchise was granted before the law took effect: Sioux City St. R. Co. v. Sioux City, 78-742.

Under prior provisions, held, that it was optional with the city to require of a street railway company that it should bear the expense of paving its tracks, and if the city did not make such requirements an abutting property owner could not on that account claim that the assessment for such paving as against his property is void: Lacey v Marshalltown, 68 N. W., 726.

Also, held, that the city could not charge upon a street railway which had acquired the right to occupy the street the proportionate expense of paving already done: Oskaloosa St. R. and Land Co. v. Oskaloosa, 68 N. W., 808. [See now the provisions of the next section]

SEC. 835. Cost of paving already laid. Before any street railway company shall lay its tracks upon any street that has been paved, and which at the time is not being paved, it shall pay into the city treasury the value of all paving between its tracks, and one foot outside thereof, which value shall be determined by the city council, but in no case shall exceed the original cost of the paving, and the money thus paid shall be refunded to the abutting property owners on said street in proportion to the amounts originally assessed against the property abutting thereon.

SEC. 840. Enforcing assessment against railways and street railways. All special assessments made under this chapter against any railway or street railway shall be a debt due personally from such railway. Such special assessments and each installment thereof, and certificates issued therefor when due, may be collected in the district or superior court by action at law, in the name of the city or town against such railway or street railway, or the lien thereof enforced against the property of such railway or street railway, on or against which the same has been levied, by action in equity, at the election of the plaintiff; and in any action at law where pleadings are required, it shall be sufficient to declare generally for work and labor done, or materials furnished, on the particular street, avenue, alley or highway, the levy of the tax and non-payment of the same; and in any action in equity, it shall be sufficient

to aver the same matters, together with a particular description of the property, or parts thereof, against which such lien is sought to be enforced. Such action may be maintained in the name of the city or town, for the use of any person entitled thereto or any part thereof, upon filing a bond conditioned to pay all costs adjudged against the plaintiff and protect it from all liability therefrom or damages growing out of the same; the amount of the bond to be fixed by the court, or a judge thereof in vacation, and the sureties thereon to be approved by the clerk of said court. [20 G. A., ch. 20, § 3; 20 G. A., ch. 25, § 9; 17 G. A., ch. 162, § 4; 15 G. A., ch. 51, § 4; C. '73, § 478; R., § 1068.]



SEC. 885. Donation of sites for depots. They, [cities and towns,] shall have power to acquire by purchase or condemnation for the purpose of donating and to donate to any railway company owning a line of railroad in operation or in process of construction in such city or town sufficient land for depot grounds, engine houses and machine shops for the construction and repair of engines, cars and other machinery necessary to the convenient use and operation said of railroad. [19 G. A., ch. 133, § 1.]

SEC. 886. Submission of question. Such donation or appropriation of funds to procure lands therefor can only be made upon a petition to the council, signed by a majority of the resident freehold taxpayers of the city or town, asking the same and fixing the sum which shall be thus appropriated. Upon the presentation of the petition, the council shall call a special election, at which the ques ion of the proposed donation shall be submitted to the voters. The clerk shall prepare the ballots and the election shall be held in the manner provided for in the chapter on elections. If there shall be a two thirds majority in favor of the donation, the council shall determine the lands to be donated by metes and bounds, the amount to be appropriated for procuring the same, not exceeding the sum named in the petition, and in the name of the city or town may acquire the same by purchase, or by the payment of the estimated damages in case the same or any part thereof shall be taken in the name of the railway corporation under condemnation proceedings as authorized by law; and the council may also vacate and convey all streets and alleys within boundaries of such site, and prescribe the terms and conditions upon which the grant is made, which shall be binding upon the company accepting it; but land set apart as a public park, square or levee shall not be thus donated, nor shall lands occupied with buildings used for business purposes or private residences be appropriated under the provisions. of this section, without the consent of the owner or owners first obtained. [Same, § 2.]



SEC. 955. Water and gas works-electric light and power plants-street railway and telephone franchises. Such cities shall have power to establish, erect, purchase, lease, maintain or operate, within or without the corporate limits, water works, gas works, electric light or electric power plants, with all the necessary reservoirs, mains, filters, streams, trenches, pipes, drains, poles, wires, burners, machinery, apparatus and other requisites of said works or plants; but no such works or plants shall be thus established, erected, purchased or leased unless a majority of the electors voting on such proposition shall vote in favor of the same, at a general or special election. They may also grant individuals or private corporations the authority to erect, maintain or purchase such works or plants, or railways, street railways or telephone systems, for the term of not more than twenty-five years, and may renew or extend the term of such grants for a period not exceeding twenty five years; but no exclusive franchise shall be thus granted, extended or renewed, and no franchise shall be grauted or authorized, until after notice of the application therefor has been published once each week for four consecutive weeks in some newspaper published in such city. [23 G. A., ch. 11, § 1; 22 G. A., ch. 11, §§ 1, 2; 22 G. A., ch. 26; 14 G. A., ch. 78, §§ 2-5; C. '73, § 471.]

SEC. 956. Question submitted. The council may order any of the questions, including the granting to individuals or corporations authority to erect, maintain or purchase water or gas works, electric light or power plants, or street railway or telephone systems, provided in the preceding section, submitted to a vote at a general election, or at one specially called for that purpose; or the mayor shall submit said question to such vote upon the petition of twenty-five property owners of each ward in the city. Notice of such election sha 1 be given in two newspapers published in said city, if there are two, if not, then in one, once each week for at least four consecutive weeks. The party asking for a renewal or extension of such franchise shall pay the cost incurred in holding such election. [22 G. A., ch. 11, §4.]

SEC. 964. Railways and street railways to maintain culverts and drains. Such cities shall have power to order any railway or street railway to construct and maintain, under the direction and subject to the approval of the city engineer, culverts and drains across its right of way on any street, alley, highway or other public place as such council may deem necessary, and if any railway or street railway company neglect or refuse, for more than thirty days after such notice as may be prescribed by resolution, to comply with the requirements of any such order, the city may construct such culvert or drain and recover the cost thereof from such company.

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