Seevers, J.-
1. practice pj-emeScourt: missal ¿f. I. The appellee insists because no judg ment was rendered on the motion, other than merely sustaining N and striking out the allegations objected to that the appeal must he dismissed. It is conceded an appeal lies from the ruling on the demurrer, but it is stated and admitted in the abstract that the cause if pending and for trial in the court below on the remaining cause of action in the second count. The argument, briefly [465]*465stated, is that an action cannot be pending in this court and the court below at the same time. While here, the cause may be tried below and a recovery had. If so, the prosecution of the appeal would be unnecessary; and that a cause cannot be tried by piecemeal — a part before and another part after the appeal has been determined. Appeals to this court are regulated by statute. By reference thereto the question presented can be readily solved.
It is provided that an “ appeal may be taken to the Supreme Court from an intermediate order involving the merits, and materially affecting the final decision.” Code, § 31G4. The motion involved the merits, and when it was sustained the final decision was vitally affected; for as the pleadings now stand in the court below the plaintiff cannot introduce .any evidence in relation to the steam motor, nor can the right of the defendant to authorize its use be controverted in this ■action. By sustaining the motion the Circuit Court has stricken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such case. By what authority can an appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute, and we know of none. If the remaining cause 'of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of •the appeal if brought to the attention of this court at the proper time. Code, § 3212. It is probable also that the court below would have the power to postpone a trial there until the appeal was disposed of. There is nothing in- the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver, or will authorize a dismissal of the appeal. In fact the record .fails to show that an issue has been formed, or that either party desires a trial below until this appeal is determined.
[466]*4662. municipal occupatlon'of iSroadsT [465]*465II. In 1870 the defendant granted to the Davenport [466]*466Central Kailroad Company “ the exclusive right to lay and operate upon * * - Brady ' * * street in said city a single horse railway with the necessary side tracks.” The right of the city to make this grant is not questioned.
In 1878 the city granted “I. M. Davies permission to run one of Baldwin’s Noiseless Steam Motors on Brady street hill on probation for thirty days.” The Motor was run and operated on the track of the street railway company.
It has been held that cities have the authority to grant railway companies who use steam in operating their roads the right to occupy with their tracks a street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa, 246, and numerous other cases. These decisions were based on a statute providing that “any railway corporation may raise or lower any turnpike, plank road or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway as soon as may he in as good repair and condition as before such alteration.” Code, § 1262. In the Milburn case the words “ pass over ” were construed to mean “ upon ” or “ lengthwise,” and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Newton & S. W. R. R. Co. v. The Mayor, etc., 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges in the absence of a legislative grant to that effect. Whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed, it is quite apparent, we think, that all the cases subsequent thereto are based on the Mil-burn case, which, as we understand, is based on the statute. It is worthy of note that, notwithstanding the several decisions following the Milburn case, it has not been deemed sat[467]*467(isfactorv to the profession or general public. • This is apparent from the numerous cases in which the doctrine of that case has been vigorously assailed by counsel.
Finally, in 1874, the General Assembly enacted a substitute for Code, § 1262, which provides- that railway corporations may “ cross over or under ” any highway with its railway. Chapter 47, Laws of Fifteenth General Assembly. To cross over or under does not mean upon or lengthwise. Under the circumstances the legislative intent has been clearly expressed, and it is to the éffect that railways operated by steam cannot be constructed upon streets and highways except as provided in a section of the Code hereinafter referred to. Or, if this be not true, the legislative assent contained in section 1262 of the Code has been withdrawn by the enactment of the statute of 1874. We are not called on to vindicate or condemn the wisdom of this statute; to construe or ascertain its meaning is our only province. The various decisions above referred to are not now correct expositions of the law, because they have been superseded by that branch of the government whose province it is to enact, but not to construe, the law.
3 » \is© óf steam mo-negligence, III. The remaining question is whether the city had the authority, in the absence of a grant from the general assembly, to authorize or permit the use of the steam v ’ x motor on Brady street in said city. If such power did not exist, the permission given could well be styled negligence, for which the city should be held responsible. Unless the city can shield itself by reason of its authority in the premises, the permission to use the motor on the street constituted negligence. That it was an experiment is not material. If the power existed, it matters not whether the authorized use was for a long or short period of time..
The defendant was organized under a special charter,. and it is stipulated by counsel that neither the charter or ordinances of the city expressly prohibit the street railway company “ from using other than animal power in operating its [468]*468road,” nor does the charter or ordinances contain a grant to that effect: therefore, we think it must be true the street railway company had no right to use or authorize the use of steam on its track; hence the application to the city council, and the necessity that it should grant the requisite permission.
The charter empowers the defendant to “open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues and alleys,” That the requisite power is not contained in the charter we regard as beyond serious controversy. We feel the more certain of this because the learned counsel for the city does not claim such authority is contained therein.
Free access — add to your briefcase to read the full text and ask questions with AI
Seevers, J.-
1. practice pj-emeScourt: missal ¿f. I. The appellee insists because no judg ment was rendered on the motion, other than merely sustaining N and striking out the allegations objected to that the appeal must he dismissed. It is conceded an appeal lies from the ruling on the demurrer, but it is stated and admitted in the abstract that the cause if pending and for trial in the court below on the remaining cause of action in the second count. The argument, briefly [465]*465stated, is that an action cannot be pending in this court and the court below at the same time. While here, the cause may be tried below and a recovery had. If so, the prosecution of the appeal would be unnecessary; and that a cause cannot be tried by piecemeal — a part before and another part after the appeal has been determined. Appeals to this court are regulated by statute. By reference thereto the question presented can be readily solved.
It is provided that an “ appeal may be taken to the Supreme Court from an intermediate order involving the merits, and materially affecting the final decision.” Code, § 31G4. The motion involved the merits, and when it was sustained the final decision was vitally affected; for as the pleadings now stand in the court below the plaintiff cannot introduce .any evidence in relation to the steam motor, nor can the right of the defendant to authorize its use be controverted in this ■action. By sustaining the motion the Circuit Court has stricken all allegations upon which such question can be based from the pleadings. By the express words of the statute an appeal lies in such case. By what authority can an appeal properly taken be dismissed? None other, we think, than statutory authority. Counsel have not called our attention to such a statute, and we know of none. If the remaining cause 'of action had been tried, it is possible, whatever might have been its result, it would be deemed a waiver of •the appeal if brought to the attention of this court at the proper time. Code, § 3212. It is probable also that the court below would have the power to postpone a trial there until the appeal was disposed of. There is nothing in- the record which tends to show the plaintiff has done anything since the appeal was taken which amounts to a waiver, or will authorize a dismissal of the appeal. In fact the record .fails to show that an issue has been formed, or that either party desires a trial below until this appeal is determined.
[466]*4662. municipal occupatlon'of iSroadsT [465]*465II. In 1870 the defendant granted to the Davenport [466]*466Central Kailroad Company “ the exclusive right to lay and operate upon * * - Brady ' * * street in said city a single horse railway with the necessary side tracks.” The right of the city to make this grant is not questioned.
In 1878 the city granted “I. M. Davies permission to run one of Baldwin’s Noiseless Steam Motors on Brady street hill on probation for thirty days.” The Motor was run and operated on the track of the street railway company.
It has been held that cities have the authority to grant railway companies who use steam in operating their roads the right to occupy with their tracks a street or streets of the city. Milburn v. Cedar Rapids, 12 Iowa, 246, and numerous other cases. These decisions were based on a statute providing that “any railway corporation may raise or lower any turnpike, plank road or other highway for the purpose of having its railway pass over or under the same, and in such cases said corporation shall put such highway as soon as may he in as good repair and condition as before such alteration.” Code, § 1262. In the Milburn case the words “ pass over ” were construed to mean “ upon ” or “ lengthwise,” and this construction has been several times followed in subsequent cases. As thus construed the legislative assent had been given to the laying down of railway tracks in streets and the operation of the same by the use of steam, subject, however, to proper equitable control and police regulations. Newton & S. W. R. R. Co. v. The Mayor, etc., 36 Iowa, 299. But it never has been held that cities had the authority to grant such privileges in the absence of a legislative grant to that effect. Whatever may have been said by judges who have written opinions in the cases in which this question has been determined or discussed, it is quite apparent, we think, that all the cases subsequent thereto are based on the Mil-burn case, which, as we understand, is based on the statute. It is worthy of note that, notwithstanding the several decisions following the Milburn case, it has not been deemed sat[467]*467(isfactorv to the profession or general public. • This is apparent from the numerous cases in which the doctrine of that case has been vigorously assailed by counsel.
Finally, in 1874, the General Assembly enacted a substitute for Code, § 1262, which provides- that railway corporations may “ cross over or under ” any highway with its railway. Chapter 47, Laws of Fifteenth General Assembly. To cross over or under does not mean upon or lengthwise. Under the circumstances the legislative intent has been clearly expressed, and it is to the éffect that railways operated by steam cannot be constructed upon streets and highways except as provided in a section of the Code hereinafter referred to. Or, if this be not true, the legislative assent contained in section 1262 of the Code has been withdrawn by the enactment of the statute of 1874. We are not called on to vindicate or condemn the wisdom of this statute; to construe or ascertain its meaning is our only province. The various decisions above referred to are not now correct expositions of the law, because they have been superseded by that branch of the government whose province it is to enact, but not to construe, the law.
3 » \is© óf steam mo-negligence, III. The remaining question is whether the city had the authority, in the absence of a grant from the general assembly, to authorize or permit the use of the steam v ’ x motor on Brady street in said city. If such power did not exist, the permission given could well be styled negligence, for which the city should be held responsible. Unless the city can shield itself by reason of its authority in the premises, the permission to use the motor on the street constituted negligence. That it was an experiment is not material. If the power existed, it matters not whether the authorized use was for a long or short period of time..
The defendant was organized under a special charter,. and it is stipulated by counsel that neither the charter or ordinances of the city expressly prohibit the street railway company “ from using other than animal power in operating its [468]*468road,” nor does the charter or ordinances contain a grant to that effect: therefore, we think it must be true the street railway company had no right to use or authorize the use of steam on its track; hence the application to the city council, and the necessity that it should grant the requisite permission.
The charter empowers the defendant to “open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues and alleys,” That the requisite power is not contained in the charter we regard as beyond serious controversy. We feel the more certain of this because the learned counsel for the city does not claim such authority is contained therein. It may be that cities organized under the general incorporation law have such authority; if so, it is because there is a statute to that effect. Code, § 464. Such statute, however, is not applicable to the defendant.
The fee of the streets is in the city, and yet it is held in trust for the use and benefit of the public. The city does not have the authority to sell and convey the title held by it or authorize the streets to be used for private purposes. Nor can it without legislative authority grant the use of a street for a public purpose, which renders it dangerous for the public to travel over it in any other manner. The power partakes of that of eminent domain, which, under our government, can only be granted by the law-making power of the state. ■ ■
Streets and highways are under the exclusive control of the general assembly. It matters not if the fee of the streets is in the city, it has no authority to control or grant rights and privileges thereto or thereon, unless it has been so authorized. The power and authority of the city is contained in its charter and bounded thereby. It. has no other or different control of the streets than is- prescribed in the charter or the general statutes of the state. A distinction has been drawn between a railway operated by horse and steam power, [469]*469and whether the defendant may authorize the former and not the latter is not in this case, and we only allude thereto lest we may be misunderstood.
The strong current of the authorities, as we understand, is in accord with the views herein expressed. 2 Dillon’s Municipal Corporations, 567, 568; Davis v. The Mayor, etc., 14 N. Y., 506; Milshaw v. Sharp, 27 N. Y., 611; Commonwealth v. W. E. R. R. Co., 27 Pa. St., 344; Protyman v. I. C. R. R. Co., 9 Ind., 468; State v. Inhabitants of Trenton, 36 N. J. L., 83; Memphis City R. R. Co. v. Memphis, 4 Coldw., Tenn., 406.
^ — • IT. It is suggested, but not pressed in argument, that, the act of the city council being without authority, the city is not responsible for any consequences resulting therefrom. The city had jurisdiction of the subject matter, that is, of the streets, and could only act in relation thereto through its council. The latter had control of the streets of the city, but were mistaken as to the extent of their authority. The particular thing the council authorized to be dono was illegal, and we think the city is responsible for the consequences resulting therefrom.
The modern doctrine we understand to be this: “ Whenever an action for an injury to the property or person of another will lie against an individual, corporations will in like circumstances be equally liable for injuries committed by their officers and agents, acting within the apparent scope of their authority.” It was, therefore, held in Lee v. The Village of Sandy Hill, 40 N. Y., 442, that the defendant was liable for a trespass committed under the direction of the village trustees. The trespass consisted in removing a fence which they erroneously supposed encroached upon the street. In The City of Pekin v. Newell, 26 Ill., 320, the city was authorized “ to birild and construct an embankment and plank road across the Illinois river bottom oj>posite said city.” Instead of so doing a pile bridge was constructed in such a negligent manner that the horse of the defendant in error [470]*470fell through the bridge and was killed. The city sought to defend on the ground that the bridge was built without authority, but it was, rightly, we think, held otherwise. Other authorities might be cited to the same effect.
Reversed.