(dissenting). The complaint is based on a supposed order of the Railroad Commissioners directing the railway company to construct a crossing under its railway at a point where there is not and never has been a highway. The case comes here on an appeal from an order overruling a demurrer to the complaint.
Now it is certain the Railroad Commissioners have no authority only such as expressly given them by statute. The statute does not make it the duty of the railway companies to construct a crossing of any kind where there is no highway, and Railroad Commissioners have no power to impose such a duty. If they had such power, then they might order twenty similar underground crossings in the same village, and put the company to a needless expense of $20,000 or $40,000 — and who would pay the expense ? Of course a city or a village may proceed in a legal manner to lay out a highway across a railroad right of way in the manner provided by statute, but the property of the railroad has the same protection as the property of an individual. It cannot be taken for public use without just compensation. Under our statutes it is provided that, in pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state-the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made; and, if such allegation is controverted, the party pleading it shall be bound to establish on the-trial the facts conferring jurisdiction. Now, the complaint contains no averment to the effect that the order in question was duly given or made; but, if it did, the Commissioners are not a court or officer within the meaning of the statute. Hence it was necessary to specifically aver each and every fact necessary to- give the Commissioners authority to make such an order. Without a proper complaint stating the facts, it would be folly to incur the expense of a trial.
In the opinion as written by Judge Birdzell the alleged order of the Commissioners is treated as if it were entitled to the same presumptions as an order or judgment of a court of general jurisdiction. Thus it is said: “For aught we know the railroad at the point may intersect *105an established highway.” Then it is said that “every fact requisite to have made the order regular and valid is impliedly alleged when the order is made the basis of relief.” That is all grossly erroneous, ánd it does violence to the fundamental principles of pleading. If it were true, then it were sufficient to aver merely that such an order was made by the Railroad Commissioners, without attempting to aver any facts to sustain it. Under the plain words of the statute the complaint must state facts sufficient to constitute a cause of action. The demurrer admits only the facts well pleaded. It does not admit conclusions of law, such as that the order was made within the power and jurisdiction-of the Railroad Commissioners. That is the conclusion of law to be derived from the facts pleaded. It is entirely clear that the complaint does not state a cause of action, and the demurrer should be sustained.