without damages being paid, plaintiff was not entitled to equitable relief by way of an injunction to abate and remove said tracks. Merchants' Union Barb Wire Company v. Chicago, R. 1. & P. R. Co., 79-613.

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 for injuries from an embankment. Callahan v. Des Moines, 63-705.

The provision 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.

The purpose of the provision of this section with reference to railways in streets is to forbid the occupancy of streets by railways running longitudinally, but it also forbids the crossing of a street diagonally in front of an abutting lot, except in accordance to the requirements of the statute. A diagonal crossing may occupy a street for a distance which practically would have the same effect in injuring an abutting lot-owner as the longitudinal occupancy of the street. Enos v. Chicago, St. P. & K. C. R. Co., 78-28.

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 the right of way. Drady v. D. M. & Ft. D. R. Co., 57-393.

In estimating the damages caused by the operation of a steam railway along a street where damages to the 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 showing the manner in which the rental value of the property has been diminished, and for the purpose of ascertaining the measure of damages. 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. Where a witness has given his opinion that the depreciation of value in property, caused by the construction of defendant's track on the street, did not exceed a certain amount, held, that he might be asked on cross-examina tion by plaintiff whether the annual premium for insurance would be higher Eslich v. Mason City & Fort D. R. Co., 75-443.

In a proceeding to assess damages to abutting property by reason of the location and operation of a railway 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. Mc Clean 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. Harbach v. Des Moines & K. C. R. Co., 80-593.

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 owners. 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

Wilson v. Des Moines, O. & S. R. Co.,

him before the assessment is made. 67-509.

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 a conveyance made subsequent to the time when the right of action accrues, and, without an assignment of such cause or 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 track is laid in the street without right, an action against a purchaser of the road under foreclosure is not barred until the statutory period after such purchaser assumes to maintain such track. Harbach v. Des Moines & K. C. R. Co., 80-593.

Where a track is laid down and operated under express authority of the city council, the damages recoverable may be assessed on the theory that it is a permanent structure for which the damages are entire, so that the statute of limitations is put in operation from the time the structure is completed. In such a case successive actions for damages cannot be maintained. Merchants Union Barb Wire Co. v. Chicago, R. I. & P. R. Co., 79-613.

In an action by a lot owner for damages caused by the 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 ties 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.

Special 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 injury 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.

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 a use of the street in violation of such restrictions will be a nuisance for which a person sustaining special damage may recover. 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 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. L., K. C. & N. R. Co., 56-735; Kucheman v. Chicago, C. & D. R. Co., 46–366.

Injunction: The fact that the property owners gets judgment for damages does not prevent his having a remedy by injunction if such damages are not paid, where the occupancy of the street is without any authority. Harbach v. Des Moines & K. C. R. Co., 80-593.

Where a railway is sold under foreclosure the purchaser stands in the same position as the former owner. Ibid.

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 appliHeath v. Des Moines & St. Louis R. Co., 61-11.

cation.

637. Donation of sites for depots, shops, etc. 19 G. A., ch. 133, § 1. It shall be lawful for any incorporated town or city to procure 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 incorporated town or city, 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 of said railroad.

638. Submission of question. 19 G. A., ch. 133, § 2. Before such donation shall be made or appropriation of funds to procure land for such purpose, a petition shall be presented to the trustees or council of such incorporated town or city, signed by a majority of the resident freehold taxpayers of such incorporated town or city, asking that such donation be made and limiting the sum to be appropriated for that purpose. Upon the presentation of such a petition, a special election of such city or town shall be called. On the ballots used at such election shall be printed the words, “for the donation" and "against the donation,” and if a two-thirds majority of the qualified electors voting at such election shall vote for the donation, said trustees or council shall determine the site to be donated, designating the boundaries thereof, and the amount to be appropriated in procuring said site, not exceeding the amount named in said petition; and may in the name of such incorporated town or city procure said land by purchase, or by payment of the estimated damages in case said land or any part thereof shall be taken in the name of such railway company by process of condemnation for railroad purposes, and may also vacate any streets and alleys within the boundaries of said site and may prescribe the terms, conditions, and limita. tions upon which such grant shall be made, which shall be binding upon the railway company accepting such donation: Provided that land set apart as a park, public square, or levee shall not be appropriated or donated under the provisions of this act, and no land occupied with buildings used for business purposes or as private residences shall be appropriated or donated under the provisions of this act, unless the eonsent of the owners thereof shall first be obtained.

725. Requiring gates at street crossings. 22 G. A., ch. 16, § 1. All cities of the first class and cities of the second class having over seven thousand inhabitants and cities organized under special charters in this state in addition to the powers now granted, shall have the further additional powers conferred by this act, as follows, to wit: they shall have power to establish, build and regulate market houses, slaughter houses; to license and regulate bill posters; to repair temporary sidewalks without notice to the property owner and provide by ordinance the manner of assessing the expense thereof on the property in front of which such repairs are made; to remove snow or ice from the sidewalk without notice to the property owner and provide by ordinance for the manner of assessing the expense thereof on the property in front of which such snow or ice shall be removed; provided, however, that the expense thereof shall not exceed one and one-half cent per front foot of any lot; provided, that the snow or ice has remained upon the walk for the period of fifteen hours; to repair paving, curbing, sewers and catch-basins; to regulate telegraph, telephone, electric light, district telegraph and other electric wires, and provide the manner in which, and places where the same shall be placed upon, along or under the streets and alleys of such city; to regulate the price of gas, electric light, water rates and to regulate and fix the charges for water meters, gas meters, electric light meters, or any other

device or means necessary for determining the consumption of gas, water or electric light. This shall not be construed to authorize the passage of an ordinance or resolution on the making of any contract, whereby the above powers are abriged. To fix the charges for making gas, electric light, steam heating, water, telephone and district telegraph connections; to compel street railway companies, whenever any street is ordered paved to pave and maintain in width three and one-half feet each way commencing at the center of the space between the rails, and in case of failure to do so to provide by ordinance for such paving and maintenance, and for the manner of assessing against such companies the cost thereof; 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; to provide that magazines used for the keeping of gunpowder, inflammable oils and other combustibles, shall not be located or maintained within a certain distance of the corporate limits of such cities; to provide that before any association, company, society, order, exhibition or aggregation of persons shall parade or march upon the streets of such cities, that they shall first obtain from the mayor of such city a permit, when issued to be without charge, and the same shall state the time, manner and conditions of such parade or march; to provide by ordinance that the width of all streets and alleys, of all additions to such cities, shall be graded in the same manner, and that they shall conform to the width of the existing streets and alleys of such cities; to expel and remove from office, by a vote of threefourths of the members of the city council any elective officer of such city charged with any crime under the statutes of this state, and such removal shall be provided by section five hundred and thirty of the code, title four, chapter ten [§ 729], for the removal of members of the city council, to make its bonds for all purposes now provided by law or hereafter to be provided by law, payable on or before a date named, or payable at a date certain, as the city council may determine. And such cities shall have full control of the bridge fund levied and paid upon the property within their corporate limits, and shall have the right to use the same for the construction of bridges and culverts and approaches thereto, repairing the same and paying bridge bonds and interest thereon, issued by such city; and it is hereby made the duty of the board of supervisers of the counties within which such cities are located to levy annually upon all the taxable property within such city such a per centum for that purpose as may be directed by the city council of such cities not exceeding the limit fixed by law: provided that no contract heretofore made respecting the application of the bridge tax shall be affected hereby. 829. Requiring paving of tracks. 20 G. A., ch. 20, § 6. All railway companies and street railway companies in cities of the first class as provided in section one of this act [§ 824], shall be required to pave, or repave between rails and one foot outside of their rails, at their own expense and cost. Whenever any street, highway, avenue or alley shall be ordered paved or repaved by the council of any such city, such paving or repaving between and outside of the rails, shall be done at the same time and shall be of the same material and character as the paving or repaving of the street, highway, avenue or alley upon which said railway track is located, or of such other material as said council may order, and when said paving or repaving is done said companies shall lay in the best approved manner the

strap or flat rail. Such railway companies shall keep that portion of the streets, highways, avenues or alleys between and one foot outside of their rails, up to grade and in good repair, using for such purpose the same material as said council may order. In the event of the neglect or refusal of such railway companies to pave, or repave, or repair as aforesaid, when so ordered and directed as aforesaid by the council of such city, such city shall have power to pave, repave or repair between and outside of said rails as herein required of such railway companies, and cost and expenses of the same to assess and levy as a special tax upon any of the real estate or personal property of such railway company, within the corporate limits of said city, which tax shall be a lien upon said property, shall become delinquent in sixty days after it is levied, shall draw interest at the rate of seven per cent per annum, and said city shall have power to enforce the payment of the same in the same manner and by the same means and with and under the same penalties as is provided herein with reference to special taxes upon the abutting property on the streets, highways, avenues or alleys, ordered to be improved as aforesaid, as hereinbefore provided.

[The cities provided for in § 824 herein referred to are cities of the first class that have been or may be so organized since January first, 1881.]

923. Location of tracks in streets of cities under special charter. 18 G. A., ch. 96, § 1. Section four hundred and sixty-four of the code of 1873, as amended by chapter six of the public laws of the fifteenth general assembly [§ 623], shall be applicable to cities and towns organized and acting under special charters, and such cities and towns shall have all the powers conferred by said section on cities and towns incorporated under the general incorporation law.

988. Cannot take stock. 553. No county, city, or incorporated town in this state, shall in their corporate capacity, or by their officers, directly or indirectly, subscribe for stock, or become interested as a partner, shareholder, or otherwise, in any banking institution, whether the same be a bank of issue, deposit, or exchange, nor in any plank road, turnpike, or railway, or in any other work of internal improvement; nor shall they be allowed to issue any bonds, bills of credit, script, or other evidences of indebtedness for any such purposes-all such evidences of indebtedness for said purposes being hereby declared absolutely void; provided nevertheless, that this section shall not be so construed as to prevent, or in anywise to embarrass, the counties, cities or towns, or any of them, in the erection of their necessary public buildings, bridges, laying off highways, streets, alleys, and public grounds, or other local works in which said counties, cities or towns may respectively be interested. [R., § 1345.]

[As to voting taxes in aid of railways, see §§ 2081-2089.]

989. Aid bonds void. 554. All bonds or other evidences of debt, hereafter issued by any corporation to any railway company as capital stock shall be null and void, and no assignment of the same shall give them any validity. [R., § 1346.]

TAXATION OF PROPERTY AND OF BRIDGES.

1281. Real property not used in operation, and bridges. 808. Lands, lots, and other real estate belonging to any railway company, not exclusively used in the operation of the several roads, and all railway