
    Franz et al. v. The Sioux City & Pembina R. Co. et al.
    1. Municipal Corporations: crossing op streets by railroads: ' damages. The owner of property, in a city where the fee of the streets, is in the public, cannot recover damages for the excavation of an adjacent street by a railroad in making a crossing for its- track, under a license properly granted by the city, and when the work is done in a careful and skillful manner.
    
      Appeal from Woodbwry District Oourt.
    
    Friday, December 10.
    The plaintiffs are the owners of certain lots in the city of Sioux City adjacent to Elm and Third streets, and to an-alley running through block forty-four in said city. Upon the lots owned by'the plaintiffs it is averred that there is a valuable brewery and other buildings and certain beer cellars, one or more of which extended under ground across the line of a street, and into the street some distance. In the plaintiffs’ petition they charge that about August, 1872, the defendants entered upon the said streets and alley, and, without regard to the established grade thereof, did cut down, tear up and carry away the earth from said streets and alley adjacent to the plaintiffs’ property, to the great damage of the plaintiff's. It is averred that such damage is continuing by reason of the operation of a railroad over and upon said streets, which railroad was constructed by the defendants.
    The defendants answered averring that the 'entry upon said streets was lawful, and for' the purpose ,of constructing a railroad over and across the same. That the city by ordinance authorized the said railroad company to build its road in the place it was built, and in doing so the- railroad company did the work in a careful, prudent and skillful manner, and that neither of the defendants is liable to the plaintiffs in any manner.
    There was a trial by jury. After the evidence was concluded the court instructed the jury that under the evidence and the law the plaintiffs were not entitled to recover. A verdict and j udgment were rendered in accord with the instructions, and the plaintiffs appeal.
    
      O. G. Tredway, for appellants.
    
      Joy & Wright, for appellees.
   Rothrook, J.

— It will be'observed from the foregoing statement of facts that the railroad was constructed in the year 1872. The evidence shows that the change in ° • the grade of Third street was the occasion of the ° alleged damages. This was done in order to bring said street, at the point where the railroad crossed it, to a level with tbe railroad track, to make a safe and convenient crossing.

The theory of the plaintiffs is that the railroad company had no right to enter upon the street and remove the earth, and that the city could not give any such authority; in short, that the defendants were both tresspassers, and counsel insists that the right of action, which he designates as an action of trespass, can be maintained. He claims that the owners of lots in Sioux City own to the center of the adjacent streets, and for that reason the defendants were trespassers when they entered thereon and made excavations and embankments, and constructed a railroad. Whether they would have been liable as trespassers under such circumstances we need not determine, because the evidence shows that the title to the streets in the city is not in the adjoining lot owners, but that the streets and alleys were dedicated to the public by the filing of a map and plat and certificates, indorsed in accordance with the laws of this State. It clearly appears that the fee in the streets and alleys is in the public, the same as in nearly all the cities and towns in this State. In this state of the title to the streets it has again and again been determined, under the law in force when this road was built, that a railroad may lawfully be constructed upon such streets. We need not cite the cases, they are familiar to the profession.

The court correctly held that the plaintiffs could not recover, if for no other reason because no claim was made that the road was not carefully, skillfully and prudently constructed.

Affirmed.  