Adams, J.
I. fThe defendant asked the court to give an instruction, which is in these words:
i. railroads: ulsof^street’ “ Plaintiffs, by virtue of their ownership of said lot in question, are not' entitled to recover in this proceeding for any damages by them sustained in consequence of the location of defendant’s railroad upon any portion of the street opposite said lot.”
This instruction the court refused to give, and the refusal is assigned as error. ^
The precise question raised in this case has never been decided by this court. The case of Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246, cited by appellant, differs in two respects. First, the plaintiffs in that case did not own the fee in the street; second, they sought to perpetually enjoin the construction of the road. In The City of Clinton v. C., R. & M. R. R., 24 Iowa, 455, it was held that the company had a right to construct its road through the streets [368]*368of the plaintiff city, without the city’s consent, the fee being vested in the city in trust for the public. But in that case, Dillon, J., said: “As to a highway in the country, or a street in a city, where the fee is in the adjoining owner, I am not prepared to say that to lay a railroad down upon it is not an additional burden, for which such proprietor is entitled to additional compensation.”
In Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148, the plaintiff did not own the fee in the street. The same may be said of the case of Ingraham, Kenedy & Day v. C., D. & M. R. R. Co., 38 Iowa, 669.
It is held in those cases that a railroad company may construct its road along the street of a city, if authorized by the legislature or city. But it is not held that the company may do so without compensating the owners of abutting property if they own the fee in the street.
Whether compensation should be made in such case to the owners of abutting property, is a question upon which there is some conflict in the decisions. We are of the opinion, however, that upon a careful examination the conflict will be found less serious than it might at first be regarded.
The case of Porter v. Worth Mo. R. R. Co., 33 Mo., 128, is cited by appellant as holding the precise doctrine upon which it relies.
The plaintiff, as the owner of a lot abutting on a street along which the defendant’s railroad had been constructed, sought to recover of the defendant damages for the depreciation of the lots, caused by the occupancy of the street by the railroad.
The court said: “We think that the use of the street for purposes of a railroad, in its ordinary use as a means of travel and transportation, is not a perversion of the highway from its original purposes.” It was accordingly held that any damage to the property abutting on the street, resulting from such obstruction, is damnum absque injuria. The counsel for the defendant claimed that the plaintiff was not the owner of the street. To this claim the court made no reference.' We are left in doubt, therefore, as to how the fact was re[369]*369garded; but perhaps we ought to assume that it was deemed immaterial. The various decisions are not collated, and the case cannot be regarded as thoroughly considered. ^
The appellant cites Morris & Essex R. R. Co. v. The City of Newark, 2 Stockton (N. J.), 352. In that case the court said: “ The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner is interfered with.” This is an ingenious statement of the precise doctrine for which the appellant contends. But it must be observed that in that case the plaintiff had been authorized by the legislature to construct its road upon the street. After the road had been constructed and used for sixteen years, the city undertook to take up the track, and the plaintiff sought to enjoin it. The issue in that case was as to the validity of the act of the legislature. The rights of adjacent property-owners were not drawn directly in question. Besides, what the court said in regard to such rights was based upon Williams v. The New York Central R. R. Co., 18 Barb. Sup. Ct. R., 222, which case was reversed in 16 N. Y., 97, and has become a leading case in support of the contrary doctrine.
The appellant cites Moses v. P., Ft. W. & C. R. R. Co., 21 Ill., 516, but in that case the fee of the street was not in the adjacent owner. The rule in Illinois is that where the fee in the street is in the adjacent owner he must be compensated. Indianapolis & C. R. R. Co. v. Hartley, 67 Ill., 439.
It is claimed by the appellant that the rule for which it contends is held by the Supreme Court of Ohio, but our attention has been called to no case in which the precise question with which we are concerned has been drawn in issue.
In Pennsylvania the fee of the street is not in the adjacent owner. The decisions in that state are not in point.
The ruling of the court in Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289, was based upon the assumption that the fee was not in the adjacent owner. \
The appellants cite the case of Barney v. The City of Keokuk et al., decided by the Supreme Court of the United [370]*370States at the October term, 1876. The action was in ejectment, brought to test the right of certain railroad companies to maintain and operate their tracks upon a certain street in which the plaintiff owned the fee. The court held that such right could not be denied. Bradley, J., in delivering the opinion of the court, said, in speaking of the Eight of Way Act of this state: “By the construction given to this act by the Supreme Court of this state, railroads, especially when located and constructed under municipal regulation and control, are not regarded as obstructions to the highway in alegal sense, nor as creating, when laid thereon, any injury to the proprietors, of the adjacent lands for which they are entitled to compensation.” Several authorities are cited as sustaining that view. But the authorities do not go to the length that the court assumed. They may, as we have seen, be regarded as establishing the doctrine that a railroad constructed on the grade of a street or highway is not an obstruction in such sense as to constitute a nuisance, but in no case has it been decided that the owners of adjacent lots who own, also, the fee in the street, are not entitled to compensation. A railroad company, if authorized by the city or legislature, may have the right to maintain its track upon a street of the city, aud the adjacent proprietor may be entitled to compensation at the same time.
Our attention is called to certain language used in the opinion in the case of Barney v. Keokuk et al., above cited. It is said, in substance, that it makes no difference whether the fee is in the adjacent proprietor or not. In that case it was undoubtedly true, but where damages are sought under the Right of Way Act, it is not true, as we have endeavored to show. We see nothing, then, in the point decided in Barney v. Keokuk et al., inconsistent with the doctrine contended for by the appellees in this case.
What are the authorities which hold that the adjacent owner must be compensated where he owns the fee in the street?
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Adams, J.
I. fThe defendant asked the court to give an instruction, which is in these words:
i. railroads: ulsof^street’ “ Plaintiffs, by virtue of their ownership of said lot in question, are not' entitled to recover in this proceeding for any damages by them sustained in consequence of the location of defendant’s railroad upon any portion of the street opposite said lot.”
This instruction the court refused to give, and the refusal is assigned as error. ^
The precise question raised in this case has never been decided by this court. The case of Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246, cited by appellant, differs in two respects. First, the plaintiffs in that case did not own the fee in the street; second, they sought to perpetually enjoin the construction of the road. In The City of Clinton v. C., R. & M. R. R., 24 Iowa, 455, it was held that the company had a right to construct its road through the streets [368]*368of the plaintiff city, without the city’s consent, the fee being vested in the city in trust for the public. But in that case, Dillon, J., said: “As to a highway in the country, or a street in a city, where the fee is in the adjoining owner, I am not prepared to say that to lay a railroad down upon it is not an additional burden, for which such proprietor is entitled to additional compensation.”
In Slatten v. Des Moines Valley R. R. Co., 29 Iowa, 148, the plaintiff did not own the fee in the street. The same may be said of the case of Ingraham, Kenedy & Day v. C., D. & M. R. R. Co., 38 Iowa, 669.
It is held in those cases that a railroad company may construct its road along the street of a city, if authorized by the legislature or city. But it is not held that the company may do so without compensating the owners of abutting property if they own the fee in the street.
Whether compensation should be made in such case to the owners of abutting property, is a question upon which there is some conflict in the decisions. We are of the opinion, however, that upon a careful examination the conflict will be found less serious than it might at first be regarded.
The case of Porter v. Worth Mo. R. R. Co., 33 Mo., 128, is cited by appellant as holding the precise doctrine upon which it relies.
The plaintiff, as the owner of a lot abutting on a street along which the defendant’s railroad had been constructed, sought to recover of the defendant damages for the depreciation of the lots, caused by the occupancy of the street by the railroad.
The court said: “We think that the use of the street for purposes of a railroad, in its ordinary use as a means of travel and transportation, is not a perversion of the highway from its original purposes.” It was accordingly held that any damage to the property abutting on the street, resulting from such obstruction, is damnum absque injuria. The counsel for the defendant claimed that the plaintiff was not the owner of the street. To this claim the court made no reference.' We are left in doubt, therefore, as to how the fact was re[369]*369garded; but perhaps we ought to assume that it was deemed immaterial. The various decisions are not collated, and the case cannot be regarded as thoroughly considered. ^
The appellant cites Morris & Essex R. R. Co. v. The City of Newark, 2 Stockton (N. J.), 352. In that case the court said: “ The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner is interfered with.” This is an ingenious statement of the precise doctrine for which the appellant contends. But it must be observed that in that case the plaintiff had been authorized by the legislature to construct its road upon the street. After the road had been constructed and used for sixteen years, the city undertook to take up the track, and the plaintiff sought to enjoin it. The issue in that case was as to the validity of the act of the legislature. The rights of adjacent property-owners were not drawn directly in question. Besides, what the court said in regard to such rights was based upon Williams v. The New York Central R. R. Co., 18 Barb. Sup. Ct. R., 222, which case was reversed in 16 N. Y., 97, and has become a leading case in support of the contrary doctrine.
The appellant cites Moses v. P., Ft. W. & C. R. R. Co., 21 Ill., 516, but in that case the fee of the street was not in the adjacent owner. The rule in Illinois is that where the fee in the street is in the adjacent owner he must be compensated. Indianapolis & C. R. R. Co. v. Hartley, 67 Ill., 439.
It is claimed by the appellant that the rule for which it contends is held by the Supreme Court of Ohio, but our attention has been called to no case in which the precise question with which we are concerned has been drawn in issue.
In Pennsylvania the fee of the street is not in the adjacent owner. The decisions in that state are not in point.
The ruling of the court in Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289, was based upon the assumption that the fee was not in the adjacent owner. \
The appellants cite the case of Barney v. The City of Keokuk et al., decided by the Supreme Court of the United [370]*370States at the October term, 1876. The action was in ejectment, brought to test the right of certain railroad companies to maintain and operate their tracks upon a certain street in which the plaintiff owned the fee. The court held that such right could not be denied. Bradley, J., in delivering the opinion of the court, said, in speaking of the Eight of Way Act of this state: “By the construction given to this act by the Supreme Court of this state, railroads, especially when located and constructed under municipal regulation and control, are not regarded as obstructions to the highway in alegal sense, nor as creating, when laid thereon, any injury to the proprietors, of the adjacent lands for which they are entitled to compensation.” Several authorities are cited as sustaining that view. But the authorities do not go to the length that the court assumed. They may, as we have seen, be regarded as establishing the doctrine that a railroad constructed on the grade of a street or highway is not an obstruction in such sense as to constitute a nuisance, but in no case has it been decided that the owners of adjacent lots who own, also, the fee in the street, are not entitled to compensation. A railroad company, if authorized by the city or legislature, may have the right to maintain its track upon a street of the city, aud the adjacent proprietor may be entitled to compensation at the same time.
Our attention is called to certain language used in the opinion in the case of Barney v. Keokuk et al., above cited. It is said, in substance, that it makes no difference whether the fee is in the adjacent proprietor or not. In that case it was undoubtedly true, but where damages are sought under the Right of Way Act, it is not true, as we have endeavored to show. We see nothing, then, in the point decided in Barney v. Keokuk et al., inconsistent with the doctrine contended for by the appellees in this case.
What are the authorities which hold that the adjacent owner must be compensated where he owns the fee in the street?
We have already referred to Williams v. N. Y. Central R. R. Co., as a leading case. The reasoning of the learned judge who announced the opinion of the court in that'case is, [371]*371to our mind, unanswerable. He says: “The right of the public in a highway is an easement, and one that is vested in the whole public. Is not the right of a railroad company, if it has the right to construct its track upon the road, also an easement? This cannot be denied, nor that the latter easement is enjoyed, not by the public at large, but by a corporation; because it will not be pretended that every man would have a right to go and- lay down his timbers and His iron rails and make a railroad upon a highway. Here there are two easements: one vested in the public and the other in the railroad company. * * * Any one can see that to convert a common highway, running over a man’s land, into a railroad, is to impose an additional burden upon the land, and greatly impair its value. As no compensation has, in this case, been made to the owner, his consent must in some way be shown. The argument is, that as he has consented to the laying out of the highway upon his land, therefore, he has consented to the building of a railroad upon it, although one of these benefits his land, renders access to it easy, and enhances its price, while the other makes access to it-both difficult and dangerous, and renders it comparatively valueless. Were the transaction between two individuals, every one would seeat once thé injustice of the conclusion attempted to be drawn. It is the public interest supposed to. be involved which begets the difficulty, and it is just for this reason that the constitution interferes, and provides that private property shall not be taken for public use without compensation.”
In Imlay v. Union Branch R. R. Co., 26 Conn., 249, the court said: “ No one can fail to see that the terms ‘railway’ and ‘highway’ are not convertible, or that the two uses, practically considered, although analogous, are not identical. * * * They are by no means the same thing to the proprietor whose land is taken. On the contrary, they suggest widely different standards of compensation.”
In Ford v. Railroad Co., 14 Wis., 616, Dixon, Ch. J., speaking of the two uses, said: “The dedication to the public as a highway enhances the value of the lot, and renders it more, convenient and useful to the owner. The use by the [372]*372railroad company diminishes its , value, and renders it inconvenient and comparatively useless. It would be a most unjust and oppressive rule which would deny the owner compensation under such circumstances.”
Y The same doctrine is held in Pomeroy v. Chicago dé M. B. li. Co., 16 Wis., 640; Wager v. Troy Union B. B. Co., 25 N. Y., 532; Inhabitants of Springfield v. Conn. Iii/oer B. B. Co., 4 Cushing, 71; Craig v. Rochester City dé Brighton R. R. Co., 39 N. Y., 404; Trustees of Presbyterian Society v. Auburn R. R. Co., 3 Hill, 567; Schurmeier v. St. Paul R. R. Co., 10 Minn., 82; and Southern Pacific R. R. Co. v. Reed, 41 Cal., 256. ' ,
In Cooley on Constitutional Limitations, 549, the author, after collecting the various authorities, says: “The weight of judicial authority is against the power of the legislature to appropriate a common highway to the purposes of a railroad, unless at the same time provision is made for compensation to the'owner of the fee.” In Redfield on Railways, 1 Yol., 311, note, the author says, after stating the English rule (which is to give the owner of the fee in the street compensation): “The general current of American law upon this subject may now be regarded as the same as the English rule already stated.” Dillon, in his Municipal Corporations, says in Sec. 576: “The weight of judicial authority at present undoubtedly is that where the public have only an easement in the street, and the fee is retained by the adjacent owner, the legislature cannot, under the constitutional guaranty of private property, authorize a steam railroad to be constructed thereon, against the will of the adjoining owner, without compensation to him.”
To the weight of judicial authority in favor of such rule, as estimated by Judge Dillon, there have recently been added two cases above cited, Indianagpolis & C. R. R. Co. v. Hartley, and Southern Pacific R. R. Co. v. Reed.
But it is urged by the appellant that this court, while it has not decided the precise question in issue, has used language which, carried to its logical results, would support the doctrine contended for. In the Milburn case, Oh. J. [373]*373Lowe, after citing a number of authorities which held that the courts cannot interfere to prevent the construction of railways'upon the, streets of a city where the legal title to the same is in the corporation, says: “The leading idea or argument running through the authorities is, * * * * that the laying down and operating a railway track over a part of a street is not an unreasonable obstruction of its free use, nor incompatible with its original dedication, but, rather, a new and improved method of using the same germane to their principal object as a passage way.” This, however, was said for the purpose of showing that the railroad could not be declared a nuisance. That was the issue in that case. On no other ground could the injunction sought be maintained. To justify the court in declaring the railroad a nuisance, it was necessary that it should appear to be an unreasonable obstruction, and incompatible with its original dedication. If it was constructed upon an embankment, so as to exclude public travel, it would be so, and any person suffering special injury might maintain an action without owning the fee in the part of the street which is obstructed. Park v. C. & S. W. R. R. Co., 43 Iowa, 636. But the distinction between such an unreasonable obstruction as will constitute a nuisance, and give any person a right of action who is specially injured, and an additional servitude, growing out of a new but reasonable use, is manifest. We have seen no decision in conflict with the Milburn case, with the exception, perhaps, of Davis v. Mayor, &c., of N. Y, 4 Kernan, 506. On the other hand, the doctrine of it is supported by a long line of adjudications.
In Slatten v. Des Moines Valley Railroad Company, it was held that the embankment, constructed as an approach to the bridge, was authorized by implication by the city council, and as the council had power to change the grade of the street without liability to the plaintiff, she could not recover. It will be seen at once that, under the circumstances of the case, the embankment could riot be declared a nuisance. On the other hand as plaintiff did not own the fee in the street, she [374]*374could not recover on the ground that her land was taken for public usé.
In England it appears that a right of action is given by statute to any person who is injured by the construction and operation of a railroad, even though the person’s land is not appropriated. But it cannot be said that such right of action exists at common law, however great the injury, if the road is so constructed and operated that it cannot be declared a nuisance. Hatch v. Vt. Central Railroad Company, 25 Vt., 49.
In the case at bar the plaintiffs seek to recover under the right of way act. To enable them to do so it must appear that the defendant has taken, and holds, the plaintiff’s real estate. The defendant’s theory is that it has not done so. Its claim may be stated in the words of the court, in Morris & Essex R. R. Co. v. The City of Newark, above cited:
“It is the easement only which is appropriated, and no right or title of the owner interfered with.” It is true, of course, that it is an easement only which is appropriated, but whether it is the easement only to which the land was already subject, is the question in the case. We are of the opinion that it is an additional easement. Where land is taken for a street or highway, and damages are allowed, should they be estimated upon the supposition that the street or highway will be used for a railroad? Certainly not, for two reasons: Not one street in a hundred is or ever will be so used, and it would be improper to allow the land owner for damages which he probably will never sustain. Again, if it were certain that he would ■sustain such damages, the railroad company and no one else should pay them. Upon no principle of law can it be presumed that a person whose land has been taken for a street or highway, has been paid for the easement which a railroad company enjoys in a street or highway upon which it constructs and operates its track. Upon what ground then can the land owner’s right of recovery be denied? Can it be denied on the ground of necessity of reducing the cost of the railroad, because it is a great and desirable improvement? No one would claim that. Yet it is to be apprehended that the importance of railroads in the improvement of the country [375]*375has bee.u regarded as such that courts have sometimes been, unconsciously influenced to deny, what must appear to every mind as true as an abstract proposition, that the construction and operation of a railway track upon a street or highway is an additional servitude. A part of the difficulty no doubt has grown out of the doctrine in Hatch v. Vt. Central H. R. Co., above cited, and the other cases which hold that no recovery can be had however great the injury, if no part of the injured person’s premises have been taken, and the cause of the injury does not constitute a nuisance. The rule as held in those cases is undoubtedly the law, although its operation sometimes produces a great hardship. Of such hardship the case ot' Slatten v. Des Moines Valley R. R. Co., is a striking illustration. Eedfield, Ch. J., who delivered the opinion of the court in Hatch v. Vt. Central R. R. Co., seems to regret the operation of the rule in that case. lie says:
“ It is not always easy to impose upon these companies the obligation to do in all cases what simple justice requires, and those who suffer essential, and sometimes perhaps ruinous, injuries must be content to take the law as it is.” lie. further suggests that perhaps the law should be changed by statute. To such change there would doubtless be an objection, on account of the indefinite liability to which railroad companies would be exposed. But such objection does not apply, where, as in the case at bar, the injured party is the owner of the soil upon which the railroad company’s track rests.
£We are of the opinion that the Circuit Court did not err in refusing the instruction asked by defendant.
2. —: -: Suiiages.0 II. The court gave the following instruction, the giving of which is assigned as ei’ror: “In determining the depreciated value of said premises by reason of the location and construction of said railroad over and in front of said premises, it will be proper for you to consider the evidence relating to the value of the premises immediately before and after the construction of said railroad, the condition and use of said premises before the construction of the railroad, and the effect upon said premises and their use by reason of the construction of the railroad; and you may also consider [376]*376any and all other matters and circumstances as shown by .the evidence tending to show the effect upon the value of said property by the location and construction of the railroad.”
The evidence tended to show that damage resulted to the plaintiff’s building by jarring caused by the operation of the road, and also that plaintiff’s trade was diverted. It is claimed by the appellant that such damage is consequential and therefore not recoverable.''
Ey statute the land owner is entitled to recover for such damages as he may “ sustain by the appropriation of his land for the use of the railroad corporation.” We are of the opinion that the damages are not limited to the value of the land taken, but include such damages as result proximately from the use for which it is taken. In Henry v. Dubuque & Pacific R. R. Co.,.2 Iowa, 309, the coirrt say: “The true mode of applying this measure (of damages) is to determine the fair marketable value of the premises before the right is set apart, and then again after; and the difference will be the true measure of damages.” In the same case the court say in substance that the assessment is not to be made with reference to any probable abuse of the privilege granted to the company, for the company only bargains for the legitimate use, and if it goes beyond that it will render itself liable when the act is done. Here is at least a clear implication that the assessment is to be made for such damages as will proximately result from the legitimate use of the right of way.
In Imlay v. Union Branch R. R. Co., above cited, the court say: “ Under the general statute in regard to railroads which provides that railroad companies shall pay all damages caused by laying out and making their road, the incidental injury to land adjacent to that taken and belonging to the same proprietor is to be considered in assessing damages.” •In Evansville & Crawfordsville R. R. Co. v. Dick, 9 Ind., 433, the court say: “The legislatui’e cannot authorize either a direct or consequent injury to property without compensation to the owner.” See, also, First Church of Boston v. City of Boston, 14 Gray, 214.
In instructing the jury, therefore, that they might consider [377]*377any and all matters and circumstances as shown by the evidence tending to show the effect upon the value of said property by the location and construction of said railroad we do not think that the Circuit Court erred upon the ground that the evidence showed damages which were consequential.
3____ • We are of the opinion, however, that the instruction is objectionable upon other grounds. It contains this language: “In determining the depreciated value of said premises by reason of the location and construction of said railroad over and in front of said premises, etc.” The track is in the middle of the street. One rail rests upon that half of the street in which the plaintiffs do not own the fee. They can recover only for the appropriation and use of their land. The instruction allows a recovery for. the appropriation and use of land not theirs.
There is great difficulty in separating the damages for which a recovery is allowable from those for which it is not, yet such a separation must be made. If the whole damages sustained by plaintiffs are $1,200, as the jury found, the plaintiffs can recover only that part thereof which arises from the occupancy of their side.of the street. We can lay down no rule for its ascertainment which we think would be of any practical benefit. The damages recoverable are somewhat more than one-half of the whole damages suffered, because the plaintiffs suffer somewhat more from the occupancy of their side of the street than from the occupancy of the other. With this thought in mind the jury must allow such portion of the entire damages as to them seems right.