The opinion of the court was delivered by
HORTON, C. J.:
This was an action commenced by Andrew Larson against the Ottawa, Osage City & Council Grove Railroad Company to recover $1,000 damages, on account of the location, construction and operation of its road upon a public street in an addition to Osage City, in front of lots owned and occupied by him. In its answer, for a third defense, the railroad company admitted that it was a corporation, engaged in the operation of a railroad through Osage county, and over and upon F street in the city of Osage City, but alleged that the city, by ordinance No. 166, entitled “An ordinance granting the right-of-way to the Ottawa, Osage City & Council Grove Railroad Company through the city of Osage,” (which was duly approved and published,) granted to the company the right to construct, operate and maintain its railroad and track, and such turnouts, switches and side-tracks as were essential and necessary to the transaction of the business of the [306]*306company upon E street, and the right to maintain drains along P street, and run cars, engines and trains upon its right-of-way ; that, under • the authority conferred by the ordinance, the company had in the proper and legal manner constructed its track on E street in the city, and run its cars, trains and engines upon said street, and made the necessary alterations of the surface of said street, but had not necessarily impaired the usefulness of the street for public travel and access to abutting lots; that the city of Osage City was an incorporated city of the state, and that the lots set forth in block 40 of the Osage Carbon Company’s second addition to the city of Osage City, and F street, which abutted said lots, and on which defendant’s railroad was constructed, were within the corporate limits of said city.
The district court sustained a demurrer to this part of the answer, upon the ground that it did not state facts sufficient to constitute any defense to the petition of Larson.
Subdivision 4 of § 47, ch. 23, Comp. Laws of 1885, reads:
“ Every railway corporation shall, in addition to the powers hereinbefore conferred, have power ... To construct its road across, along or upon any stream of water, water-course, street, highway, plank road, or turnpike, which the route of its road shall intersect or touch; but the company shall restore the stream, water-course, street, highway, plank road, or turnpike thus intersected or touched, to its former state, or to such state as to have not necessarily impaired its usefulness. Nothing herein contained shall be construed to authorize the construction of any railway not already located in, upon or across any street in any city incorporate, or town, without the assent of the corporate authorities of such city.”
See also, §65, ch. 19, Comp. Laws of 1885, giving cities of the second class the power to provide for the passage of railroads over or upon streets and public grounds. In A. & N. Rld. Co. v. Garside, 10 Kas. 552, it was decided that —
“A railway company having authority from the city may construct and operate its road over streets and public grounds without compensation to the abutting lot-owners for the use of the same, and without being liable to such lot-owners for consequential damages arising from noise, smoke, offensive [307]*307i Railroad Row ' to Re con’-structed and °ScesÍreet-Samases-6 ia 11 y' vaPors> sparks, fires, shaking of the ground and other inconveniences and annoyances, where the ^ -it 7 raiiroaci 1S operated m a legal and proper manner, and in fact it may so construct and operate its road without being liable to said lot-owners for any damage where the road is constructed and operated in a legal and proper manner.”
It was decided in Methodist Church v. City of Wyandotte, 31 Kas. 721, that in the absence of a statute creating a liability—
“An action will not lie against a city of the second class for damages for the injury to adjoining property caused by a change having been lawfully made by the city authorities in the grade of a public street.” (Dill. Mun. Corp., § 990; Hedrick v. City of Olathe, 30 Kas. 348.)
In Heller v. A. T. & S. F. Rld. Co., 28 Kas. 625, it was said:
“The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same.”
A railroad laid out over or on a public street or highway, so as to obstruct it, without express statutory authority or necessary implication, is a nuisance; and the company laying and operating such a road is liable by indictment, or otherwise, for creating and maintaining a nuisance; hence, the answer properly alleged the express authority of the railroad company to construct, operate and maintain its road upon the street described in the petition; and also that the road was “constructed and operated in a legal and proper manner,” so as not to unnecessarily impair the usefulness of the street for public travel and access to abutting lots. If all the facts stated in the third defense are true, then the plaintiff is not entitled to recover, as the facts alleged are a full and sufficient answer to the petition.
Counsel for Larson contend, however, that said subdivision 4 of § 47, ch. 23, is in contravention of § 4, art. 12 of the constitution of the state, and also of the filth amendment of the [308]*308Constitution of the United States, and therefore that the statute is void. Such is not the case. The constitutional right to compensation for private property taken for public use does „ , ^ , 2. Valid statute, m!ta-?S$iote damages. not extend to instances where the land is not actually taken, but only indirectly or consequentially injured; and an act or an ordinance authorizing the construction of a railroad, or other work of a public nature upon a public street or highway, the fee of which is in the public, is not unconstitutional because it does not provide for compensation for injuries to abutting lot or land-owners. (Radciff v. Mayor, 4 N. Y. 195 [53 Am. Dec. 357-370]; Rld. Co. v. Applegate, [8 Dana, 289] 33 Am. Dec. 497; Transportation Co. v. Chicago, 99 U. S. 635; Rld. Co. v. Joliet, 79 Ill. 35; Conklin v. Rly. Co., 102 N. Y. 107. See also Hedrick v. City of Olathe, supra.)
Counsel for Larson claim, however, that under the Garside Case, supra; the Twine Case, 23 Kas. 585; and the Andrews Case, 26 Kas. 702, and 30 Kas. 590, the plaintiff is entitled to recover pro tanto for any impairment or partial destruction of ingress or egress to his lots. In the Gardde Case it is said:
“Therefore, in a case like the one at bar, where the railroad company has the legal right to construct and operate its road over certain grounds, we do not think that the company can by so doing be held liable for any damages of any kind where it constructs and operates its road in a legal and proper manner. It can be held liable only where it constructs and operates its road in an illegal, improper or wrongful manner. The plaintiff may, we .think, recover for the third kind of damages.
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The opinion of the court was delivered by
HORTON, C. J.:
This was an action commenced by Andrew Larson against the Ottawa, Osage City & Council Grove Railroad Company to recover $1,000 damages, on account of the location, construction and operation of its road upon a public street in an addition to Osage City, in front of lots owned and occupied by him. In its answer, for a third defense, the railroad company admitted that it was a corporation, engaged in the operation of a railroad through Osage county, and over and upon F street in the city of Osage City, but alleged that the city, by ordinance No. 166, entitled “An ordinance granting the right-of-way to the Ottawa, Osage City & Council Grove Railroad Company through the city of Osage,” (which was duly approved and published,) granted to the company the right to construct, operate and maintain its railroad and track, and such turnouts, switches and side-tracks as were essential and necessary to the transaction of the business of the [306]*306company upon E street, and the right to maintain drains along P street, and run cars, engines and trains upon its right-of-way ; that, under • the authority conferred by the ordinance, the company had in the proper and legal manner constructed its track on E street in the city, and run its cars, trains and engines upon said street, and made the necessary alterations of the surface of said street, but had not necessarily impaired the usefulness of the street for public travel and access to abutting lots; that the city of Osage City was an incorporated city of the state, and that the lots set forth in block 40 of the Osage Carbon Company’s second addition to the city of Osage City, and F street, which abutted said lots, and on which defendant’s railroad was constructed, were within the corporate limits of said city.
The district court sustained a demurrer to this part of the answer, upon the ground that it did not state facts sufficient to constitute any defense to the petition of Larson.
Subdivision 4 of § 47, ch. 23, Comp. Laws of 1885, reads:
“ Every railway corporation shall, in addition to the powers hereinbefore conferred, have power ... To construct its road across, along or upon any stream of water, water-course, street, highway, plank road, or turnpike, which the route of its road shall intersect or touch; but the company shall restore the stream, water-course, street, highway, plank road, or turnpike thus intersected or touched, to its former state, or to such state as to have not necessarily impaired its usefulness. Nothing herein contained shall be construed to authorize the construction of any railway not already located in, upon or across any street in any city incorporate, or town, without the assent of the corporate authorities of such city.”
See also, §65, ch. 19, Comp. Laws of 1885, giving cities of the second class the power to provide for the passage of railroads over or upon streets and public grounds. In A. & N. Rld. Co. v. Garside, 10 Kas. 552, it was decided that —
“A railway company having authority from the city may construct and operate its road over streets and public grounds without compensation to the abutting lot-owners for the use of the same, and without being liable to such lot-owners for consequential damages arising from noise, smoke, offensive [307]*307i Railroad Row ' to Re con’-structed and °ScesÍreet-Samases-6 ia 11 y' vaPors> sparks, fires, shaking of the ground and other inconveniences and annoyances, where the ^ -it 7 raiiroaci 1S operated m a legal and proper manner, and in fact it may so construct and operate its road without being liable to said lot-owners for any damage where the road is constructed and operated in a legal and proper manner.”
It was decided in Methodist Church v. City of Wyandotte, 31 Kas. 721, that in the absence of a statute creating a liability—
“An action will not lie against a city of the second class for damages for the injury to adjoining property caused by a change having been lawfully made by the city authorities in the grade of a public street.” (Dill. Mun. Corp., § 990; Hedrick v. City of Olathe, 30 Kas. 348.)
In Heller v. A. T. & S. F. Rld. Co., 28 Kas. 625, it was said:
“The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same.”
A railroad laid out over or on a public street or highway, so as to obstruct it, without express statutory authority or necessary implication, is a nuisance; and the company laying and operating such a road is liable by indictment, or otherwise, for creating and maintaining a nuisance; hence, the answer properly alleged the express authority of the railroad company to construct, operate and maintain its road upon the street described in the petition; and also that the road was “constructed and operated in a legal and proper manner,” so as not to unnecessarily impair the usefulness of the street for public travel and access to abutting lots. If all the facts stated in the third defense are true, then the plaintiff is not entitled to recover, as the facts alleged are a full and sufficient answer to the petition.
Counsel for Larson contend, however, that said subdivision 4 of § 47, ch. 23, is in contravention of § 4, art. 12 of the constitution of the state, and also of the filth amendment of the [308]*308Constitution of the United States, and therefore that the statute is void. Such is not the case. The constitutional right to compensation for private property taken for public use does „ , ^ , 2. Valid statute, m!ta-?S$iote damages. not extend to instances where the land is not actually taken, but only indirectly or consequentially injured; and an act or an ordinance authorizing the construction of a railroad, or other work of a public nature upon a public street or highway, the fee of which is in the public, is not unconstitutional because it does not provide for compensation for injuries to abutting lot or land-owners. (Radciff v. Mayor, 4 N. Y. 195 [53 Am. Dec. 357-370]; Rld. Co. v. Applegate, [8 Dana, 289] 33 Am. Dec. 497; Transportation Co. v. Chicago, 99 U. S. 635; Rld. Co. v. Joliet, 79 Ill. 35; Conklin v. Rly. Co., 102 N. Y. 107. See also Hedrick v. City of Olathe, supra.)
Counsel for Larson claim, however, that under the Garside Case, supra; the Twine Case, 23 Kas. 585; and the Andrews Case, 26 Kas. 702, and 30 Kas. 590, the plaintiff is entitled to recover pro tanto for any impairment or partial destruction of ingress or egress to his lots. In the Gardde Case it is said:
“Therefore, in a case like the one at bar, where the railroad company has the legal right to construct and operate its road over certain grounds, we do not think that the company can by so doing be held liable for any damages of any kind where it constructs and operates its road in a legal and proper manner. It can be held liable only where it constructs and operates its road in an illegal, improper or wrongful manner. The plaintiff may, we .think, recover for the third kind of damages. But before he can do so he must show among other things that the levee is a street or highway, as he has alleged; that the railroad company wrongfully and unnecessarily blocked up and obstructed the said street or highway, and that the plaintiff received actual injury from such obstruction. And the injury must be special as to him, and not such as affects the public in general. Of course the railroad company can have no legal right to permanently block up a street. And it can have no legal right to temporarily block up or obstruct a street except where it necessarily does so in the lawful and proper use of its road. It can pass and repass with its engines and cars the same as individuals may with their [309]*309vehicles, and for such passing and repassing it cannot of course be liable to anyone; but it has no more right to obstruct the street than an individual has, and it may make itself liable for obstructing a street the same as an individual may.”
In the Twine Case, the damages were allowed for completely obstructing access to an adjoining lot.
In the Andrews Case, damages were allowed upon the ground that the lot-owner considered the complete obstruction by the railroad company as a permanent taking and appropriation of the alley. In all of these cases it was asserted that a railroad company had no' legal right to block up or wholly obstruct a street. These decisions, however, are to the effect only that a railroad company has no more right to obstruct the street than an individual has; and it may make itself liable for wrongfully and unnecessarily obstructing a street the same as an individual. To illustrate: An individual may drive his carriage or other vehicle up and down a street, but if he wrongfully and unnecessarily blocks up the street with his carriage or vehicle so that it cannot be used for other vehicles, or for persons passing and repassing, he will be liable to anyone damaged thereby. This court has held the same way in regard to the passing and repassing of engines and cars upon a street, where the railroad company has a legal right to construct and operate its road. It has, however, gone no further. The pro tanto theory has never been adopted. Indirect and general injuries give the lot-owner in this case no actionable damages. (Heller v. A. T. & S. F. Rld. Co., supra.)
Counsel refer to the decisions of several courts, which to some extent support the court below in sustaining the demurrer. These decisions, as in Ohio, are contrary to the law elsewhere declared; and in other states are upon statutes or constitutional provisions widely differing from ours.
In passing, we may add that the legislature in 1881 enacted a statute for property-owners to recover damages where the grade of a street has been changed to their injury. (Comp. Laws of 1885, ch. 18, §18.) This statute does not apply in any way to this case.
[310]*310As to the second defense alleged in the answer, we do not think it important or material. The reservation to the Osage Carbon Company, its successors and assigns, to use and occupy the street for the purpose of operating a railroad, merely reserved to that company, if it reserved anything, 8' áty, owSea Dy streets to be used in legal Si£oad.for the right to construct, operate and maintain its line oi railroad over and upon the street m a L t • . proper and legal manner. All of this is alleged to have been done in the third defense of the answer; and therefore the court below committed no error in sustaining the demurrer to the second defense. (Wood v. Water Works Co., 33 Kas. 590.)
The ruling and judgment of the district court sustaining the demurrer to the third defense will be overruled, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring.