OPINION ON REHEARING.
Day, J.—2.-pleading. One of tho grounds of demurrer is that the petition does not show that plaintiff is such a corporation, or constructing such a road as a work of public utility, , ° . , . . . „ f as would entitle plaintiff to appropriatestreets for a right of way. Upon a petition for rehearing, defendants ask that we determine as to the necessity of alleging in the petition that plaintiff is constructing a railroad as a work of public utility. Section 1278 of the Revision, 759 of the Code of 1851, is as follows: “ When any corporation or other person designs to construct a canal, or a railroad, or a turnpike, graded, macadamized, or plank-road or a bridge, as a work of public utility, although for private profit, it may take such reasonable amount of private real property as may be requisite for a right of way, not exceeding one hundred feet in width, upon paying therefor such sum as may be assessed in the manner herein provided.”
This section, it is to be observed, authorizes any corporation or other person to appropriate the right of way for any of the designated purposes, the only restriction being that the improvement shall be constructed as a work of public utility.
Afterward the act of January 18, 1853, Laws of the Fourth General Assembly, chapter 31, was passed. Section 1 of this act, 1311 of the Revision, provides: “That any railroad corporation in this State heretofore organized, or that may hereafter be organized under the laws of this State, may take and hold, under the provisions contained in this act, so much real estate as may be necessary for the location, construction and convenient use of their road.”
This section effects important changes in the law existing at the time of its enactment. It confers the power to take prop*305erty for right of way, upon any raAVroad corporation organized in this State.
By becoming incorporated, a railroad company assumes the duties of a common carrier.
In the allegation of the petition that the plaintiff is a corporation duly organized, and engaged in building a railroad, there is implied an allegation that it has assumed all the common-law liabilities of a common carrier. It is not, in our opinion, necessary that the petition should allege more. We •hold that the petition states a prima facie case, and we determine nothing more.
Affirmed.