out return to the amount thus deposited the grantee of the agricultural college could not have another assessment of damages for the use of the premises by another railway company. Chicago, M. & St. P. R. Co., v. Bean, 69-257.

A land owner who has received compensation which has not been refunded by him cannot recover the second time. Dubuque & D. R. Co. v. Diehl, 64-635.

The easement being acquired by express grant is not aside from the statutory provision barred by a failure to use the same for ten years, and a possession of the property, during that time, by the original owner in the absence of any act of his preventing the use. Barlow v. Chicago R. I. & P. R. Co.,. 29-276; Noll v. Dubuque, B. & M. R. Co., 32-66.

A land owner who has received damages for a right of way and has enentered into an agreement by which another company has taken and used such right of way is not in position to rely on an abandonment by the first company. Marling v. Chicago, C. R. & N. R. Co., 67-331.

A portion of a line may become abandoned. Whether it is so or not is a question of fact. Central Iowa R. Co, v. Moulton & A. R. Co., 57-249.

This statute defines what shall be regarded as an abandonment of a right of way,and nothing less than nonuser for eight years will authorize the owner of the land from whom the right of way was taken to retake possession.. If he does so the company may at any time within eight years enter upon the land again and resume its use. Fernow v. Chicago, M. & St. P. R. Co.,

75-526.

The provisions of this section apply to the case of a railroad which has been commenced and abandoned before the enactment of the statute. The time which had expired before the enactment and after the abandonment of the work is to be taken into account in computing the eight years. A railroad company has no vested right by contract to hold a right of way which it has abandoned, and the section is not unconstitutional in that respect. Skillman v. Chicago, M. & St. P. R. Co., 78-404.

1930. Crossings over highways. 1262. 15 G. A., ch. 47; 19 G. A., ch. 122. Any such corporation may raise or lower any turnpike, plankroad, or other highway, for the purpose of having its railway cross over or under the same; and in such cases said corporation shall put such highway, as soon as may be, in as good repair and condition as before such alteration. [R., § 1321.]

This section as it originally stood, authorizing a railway corporation to raise or lower a highway "for the purpose of having its railway pass over or under the same,' was construed to confer upon railway companies the right to construct their tracks upon the public highways, including the streets of a city, without compensation to an abutting property owner, where he did not own the fee in the highway or street. Milburn v. Cedar Rapids, 12-246; Gear v. Chicago, C. & D. R. Co., 39–23. But as now amended, by substituting "cross" for " pass," it cannot be construed as authorizing such use of highways or streets without other express legislative authority. Stanley v. Davenport, 54-463.

A railway cannot be laid diagonally across the street in front of an abutting lot, except in accordance with the provision of § 623. Enos v. Chicago, St. P. & K. Č. R. Co., 78-28.

The objection imposed by the statute upon a railway company constructing and operating its railway, to construct at all points where the highway crosses it sufficient and safe crossings, is binding upon all corporations using railways in the state. Farley v. Chicago, R. I. & P. R. Co., 42-234.

The embankment constructed as a necessary approach to the crossing is a part of the crossing and the company is required to keep it in repair. Ibid. The company is bound to keep crossings in a safe condition, and this obligation extends to the approaches to a bridge. Newton v. Chicago, R. I. & P. R. Co., 66-422.

The company is under obligation to build and keep in repair an overhead crossing and the approaches thereto, provided the grade crossing is unsuitable and the overhead crossing is necessary to put the street in proximately as good repair and condition as before the railroad was built. lbid.

As the railway has the right to raise or lower highways at crossings, an indictment charging the company with digging, plowing and scraping such highway, throwing up embankments and making excavations, etc., at points where the railway crosses such highway, does not state facts sufficient to constitute the crime of obstructing the highway. State v. Chicago, R. I. & P. R. Co., 63-508.

In an action for personal injuries received at a public crossing, the fact that the crossing is not as good as the highway was before the construction of the railway is admissible for the purpose of showing what vigilance was required of the railway as to the use of signals and the operation of trains in approaching such crossing. Funston v. Chicago, R. ̃ ̄ I. & P. R. Co., 61-452.

The railway has no right to fence its track where it crosses streets or alleys properly laid out, whether they have been improved and used by the public or not. Lathrop v. Central Iowa R. Co., 69-105.

And see notes to § 1972.

1931. Further repairs. 1263. If the supervisor, trustees, city council, or other person having jurisdiction over such highway require further or different repairs or alterations made thereon, or, if the same, in their opinion, is unsafe, they shall give notice thereof in writing to any agent or officer of the corporation, and if the parties are unable to agree respecting the same, either may apply by petition, setting out the facts, to the circuit [district] court, or judge thereof, and such court or judge shall cause reasonable notice to be given the adverse party of the application; the petition shall be filed in the clerk's office, and may be answered as in other cases. The court shall determine the matter in a summary way and make the necessary orders in relation thereto, giving such corporation a reasonable time to comply therewith, and upon failure to do so, said court may enjoin the corporation from using so much of its road as interferes with any such highways, and the court may award costs in favor of the prevailing party, [R., §§ 1322-3.]

1932. Temporary ways. 1264. Every such corporation when employed in raising or lowering any highway, or in making any other alteration by means of which the same may be obstructed, shall provide and keep in good order suitable temporary ways to enable travelers to avoid or pass such obstructions. [R., § 1324.]

1933. Over railways, canals, etc. 1265. Any such corporation may construct and carry its railway across, over or under any railway, canal, or water-course, when it may be necessary in the construction of the same; and in such cases said corporation shall so construct its crossings as not unnecessarily impede travel, transportation, or navigation upon the railway, canal, or stream so crossed; said corporation shall be liable for the damage occasioned by any corporation or party injured by reason of said crossing. [R., § 1325.]

The requirement of § 2005, that trains shall come to a full stop at crossings of other railroads, necessarily renders crossings on grade an impediment, to some extent, to travel and transportation, but the inconvenience and delay arising from their use must be borne by the company. The company constructing an intersecting line is required to so construct the crossing as not to unnecessarily interfere with the crossing of the other road. Whether

such crossing shall be made at grade, or over or under the other, must depend upon circumstances; and under particular facts, held, that a requirement that an under-crossing be constructed was not unreasonable. Humestone & S. R. Co. v. Chicago, St. P. & K. U. R. Co., 74-554.

1934. Bridges. 1266. Every such corporation shall maintain and keep in good repair all bridges with their abutments, which it may construct for the purpose of enabling its railway to pass over or under any turnpike, highway, canal, water-course, or other way. [R., § 1326.]

1935. Damages. 1267. Every such corporation shall be liable for all damages sustained by any person in consequence of any neglect of the provisions of this chapter. [R., § 1327.]

The provisions of this section do not extend the liability of the corporation to the acts of those not its agents or servants. Callahan v. Burlington & M. R. Co., 23–562.

1936. Private crossings. 1268. When any person owns land on both sides of any railway, the corporation owning the same, shall, when requested so to do, make and keep in good repair one cattle-guard and one causeway or other adequate means of crossing the same, at such reasonable place as may be designated by the owner. R., § 1329.]

When required. The company need not provide a crossing unless the land owner requires it. Henderson v. Chicago, R. I. & P. R. Co., 48-216. The duty of the company to construct a private crossing may be enforced by mandamus. Boggs v. Chicago, B. & Q. R. Co., 54–435,

And in the particular case, held, that a request of the person owning land on both sides of the railway track, for an open crossing at a particular point, was not unreasonable, and compliance therewith might be enforced. Ibid. The owner of land is authorized to designate the place where the crossing for his benefit shall be made, and the limitation put upon his choice of location is that the place designated shall be a reasonable one. Van Vrankin v. Wisconsin, I. & N. R. Co., 68-576.

Where the only means a citizen has of reaching a highway is across the railway, he may insist that an open crossing be provided for him by means of which he may reach the highway without stopping to open the gates or remove bars. Gray v. Burlington & M. R. R. Co., 37-119.

Where a party owning land on opposite sides of a highway maintains a lane and fences in such manner as to indicate that he prefers an open crossing instead of one closed by gates, the company will not be liable to him for failure to maintain such gates. Tyson v. Keokuk D. M. R. Co., 43–207.

Where a railroad passes through a pasture the owner is not, as a matter of course, entitled to an open crossing for his stock, regardless of any other means of crossing. To entitle him to such a crossing it must appear that there is no provision for passing from one part of the field to the other, which is adequate under the circumstances. Curtiss v. Chicago, M. & St. P. R. Co., 62-418.

A company required to maintain and construct proper cattle-guards cannot by contract with another company, whose road it purchases, relieve itself from the right or obligation to do so. Downing v. Chicago, R. 1. & P.

R. Co., 43-96.

Gates and bars at private crossings. If the company undertakes to and does construct fences, gates, crossings and cattle-guards, etc., for a private owner, a request for their construction may be presumed, and the company will be required to keep them in repair. Miller v. Chicago, R. I. & P. R. Co., 66-546.

Under the provisions of a previous statute, differing from the present one as to private crossings, held, that a company had a right to construct fences at such crossings, but must provide the same with gates. McKinley v. Chicago, R. 1. & P. R. Co., 47-76, 78.

The duty to maintain gates at private crossings is a part of the duty to fence, and the company will be liable for damages to stock injured by reason of failure to construct such gates or keep them in repair. Ibid; Mackie v. Central R. of Iowa, 54-540.

As to the liability for failure to fence in general, see § 1972.

The obligations imposed upon the company to fence and to provide private crossings are correlative, and if it does each as well as it can consistently with the other it is not liable. Henderson v. Chicago, R. I. & P. R. Co.,

39-220.

Where the company is required to put in a private crossing and erect proper gates and bars, it will not be liable for negligence of a person for whom the crossing is constructed in habitually leaving such gates or bars open, further than that it must use reasonable diligence and care in keeping them closed. Ibid.

But the company is not responsible in the absence of negligence, although it knows that the land owner or other persons are in the constant or usual habit of leaving the gates open. Henderson v. Chicago, R. I. & P. R. Co., 43-620.

Where the company nailed up the gates at a private crossing for the reason that they had been habitually left open, and the land owner tore down the fence so that the gates should be open, held, that it was error to instruct the jury as to the effect of the abandonment by the land owner of his crossing. Ibid.

The sufficiency of the gates provided at a private crossing is a question of fact for the jury; and held, that it was error to instruct the jury that such gates were sufficient in view of the fact that the land owner gave no notice to the company of objection thereto, and himself believed them sufficient. Mc Kenly v. Chicago, R. I. & P. R. Co., 43-641.

Under particular facts, held, that it was not sufficiently shown that injury to stock resulted from defect in the gate through which they escaped upon the track. Bothwell v. Chicago, M. & St. P. R. Co., 59-192.

In an action for injuries to stock from failure to maintain a gate at a private crossing in good condition, evidence of the condition of the gate two or three days after the accident, is not being shown that its condition as to security was different from what it was at the time of the accident, was held proper. Mackie v. Central R. of Iowa, 54-540.

Where the company constructs a gate at a private crossing without fastenings, and in such manner that it may be blown open by the wind, it is not proper to charge the jury that the responsibility for keeping the gate closed is upon the person for whose convenience it is constructed, and that he cannot recover for injuries to his stock coming upon the track through such gate. Hammond v. Chicago & N. W. R. Co., 43-168.

Where it appeared that a gate at a private crossing had been constructed without fastenings and the wind had sometimes blown it open, held, that it was improper to exclude from the jury the question as to whether the company was guilty of negligence in thus constructing it, and that the proof of the habit of an adjoining owner to leave the gate open would not preclude recovery on the account of such negligence in the original construction, it not appearing that it had been left open by such owner in the particular instance when the damage occurred. Ibid.

A company may be liable without knowledge of the defect in the fence, if in the exercise of reasonable care, such knowledge would have been acquired. If the fence was originally defective the company is chargeable with knowledge thereof without express notice. Ibid.

The company is only liable for negligence in failing to put up the bars at a private crossing, which have been left down, after acquiring knowledge of their condition, or in not ascertaining their condition, and the burden of proving such negligence is upon the plaintiff. Perry v. Dubuque Southern R. Co., 36-102.

Proof of the mere fact that bars have been left down by some person, and that through them cattle have strayed upon the track and been injured, does not make a prima facie case of liability on the part of the company. Such liability, if it exists at all, arises from the conduct of the company after the

bars have been left down, either in failing to put them up after acquiring knowledge that they were down, or in neglecting to use reasonable diligence to ascertain such condition. Ibid.

And as to a like rule in regard to failure to repair fences, see notes to §

1972.

It is erroneous to instruct the jury that a person whose stock has been injured upon the track makes a prima facie case against the company by showing that the gate through which stock came upon the track was out of repair previous to the accident. Proof of such fact does not cast upon defendant the burden of showing that the accident did not result by reason of the gate being open. Such fact would be a circumstance tending to show that it was open through defendant's fault, which might have much or little weight according to circumstances; but the burden of proof would remain upon plaintiff to show negligence of defendant causing the injury. Johnson v. Chicago, R. I. & P. R. Co., 55-707.

The fact that the bars are left down by the land owner will not as to third persons discharge the company from its obligation to keep them closed. Bartlett v. Dubuque & S. C. R. Co., 20-188.

But the land owner could not recover for injuries resulting therefrom, and might be liable to a third person injured by such bars being open. Russell v. Hanley, 20–219.

If, by reason of the act of the land owner in wrongfully removing a gate at a private crossing on his land, stock of a third person gets upon the track and is injured, and the company is held liable therefor, it may recover from such land owner the amount which it has been compelled to pay. Chicago & N. W. R. Co. v. Dunn, 59-619.

A land owner driving cattle in through the gate at one crossing and along the right of way, for the purpose of turning them out at the gate at another crossing is guilty of negligence; and in a particular case, held that there was not such negligence on the part of the employes of the company after they were aware of the cattle being on the track as to render them liable for damages in killing some of the cattle. Davidson v. Central Iowa R. Co., 75-22.

VIADUCTS IN CITIES.

1937. When required. 22 G. A., ch. 32, § 1. The council of any city of the first class and cities organized under special charter or cities of the second class having a population of seven thousand or over, shall have power to require any railroad company or companies, owning or operating any railroad track or tracks upon or across any public street or streets of such city to erect, construct, reconstruct, complete and keep in repair to the extent hereinafter provided any viaduct or viaducts upon or along such street or streets and over or under such track or tracks including the approaches thereto as may be deemed and declared by ordinances of such city necessary for the safety and protection of the public; provided, that the approaches to any such viaduct which any railroad company or companies may be required to construct, or reconstruct and keep in repair shall not exceed for each viaduct a total distance of eight hundred feet, and provided further that no such viaduct shall be required on more than every fourth street running in the same direction and that no railroad company shall be required to build or contribute to the building more than one such viaduct with its approaches in any one year. Nor shall any viaduct be required until the board of railroad commissioners shall, after due examination, determined said viaduct to be necessary in order to promote the public safety and convenience, and the plans of said viaduct prepared as provided in section three hereof [ 1939], shall have been approved by said board.