— I. On the trial of the cati.se the court, at the request of plaintiffs, gave to the jury the following instruction:
“ The defendant had no right to lay down its track on Front street in front of plaintiffs’ lot, on a different line, or in a greater number than was authorized by the ordinances of the city. If you find from the evidence that the defendant has laid down more tracks, and on a different line than .was authorized hy the ordinance which thereby unnecessarily and unreasonably interfere with the use of said street by the plaintiffs, as a public street, your verdict should be for the plaintiffs on the first count for the damages to them thereby.”
The giving of this instruction is assigned as error. It is erroneous in several respects, even under the theory of plaintiffs’ counsel, that the defendant could acquire a right to lay down its track or tracks only by permission of the city council of Dubuque, through the passage of a city ordinance.
The defendant gave in evidence a city ordinance adopted June 10, 1864, granting to the Dubuque Lumbermen and Manufacturers’ Railroad Company the right to construct and maintain a railroad track upon the street in front of plaintiffs’ premises, which was to be open to every other person or corporation to pass over with railroad cars. The evidence tends to show that this track had been constructed, and was *674being used by tbe defendant, and was one of the tracks complained of by plaintiffs.
The defendant also gave in evidence an ordinance adopted October 31st, 1870, granting the right of way to the Dubuque & Minnesota Railroad Company (now the Chicago, Dubuque & Minnesota Railroad Company,) to laydown a single railway track upon a designated line, and in front of plaintiffs’ premises;' also an ordinance granting to the Dubuque, Bellevue & Mississippi Railroad Company, (now the Clinton & Dubuque Railroad Company,) and to the Dubuque & Minnesota Railroad Company, the right of way through the City of Dubuque, on a certain specified line; also, a further ordinance granting the right of way to the Iowa & Pacific Railroad Company to lay down a single track upon a specified line. There was evidence tending to show that the defendant, by arrangements with these other companies, had" constructed an embankment between plaintiff’s premises and the river, partly upon what is called the reserved strip known as Front street, and partly in a slough of the river, sufficient to accommodate all these tracks authorized by these several ordinances, and had laid down three tracks in addition to the Lumbermen’s track. It was claimed by defendant on the trial, that one of the tracks thus constructed, was not situated upon the street, but upon that part of the slough which it had filled up.
, instructions. Under this evidence it was the duty of the court to have instructed the jury as to the number of tracks, authorized to be laid down under the several ordinances of the cjty, and he should not have left it to the jury to determine whether the defendant had constructed more tracks than the city ordinances authorized. This was a mixed question of law and fact. The number of tracks, authorized by the ordinances to be laid down, was a question of law which the court should have decided, and instructed the jury upon, instead of leaving it to the jury .to decide as is done by the instruction complained of.
2.-; —: *6753. action: . Yiciua?to*1 1 maintain for public injury, *674II. Again, the jury are told that if defendant has laid down more tracks than were authorized, or laid them on a different line from those authorized, “which thereby *675u/wnecessarily and unreasonably interferes with the use of said street,” they should find for the plaintiff. In addition to the error before pointed out, the instruction contains two others. First. There was no attempt to prove by any evidence whatever, that the railroad company had laid down more tracks than were reasonably necessary for its business, as contemplated in the .ordinances, nor is there anything in the testimony tending in that direction. It was not claimed on the trial that such was the fact. Beeond. It does not follow that defendant would be liable to plaintiffs for damages, even if it had been proved that defendant had laid down tracks on different lines from those authorized by ,, ,. . , , the ordinances, or more tracks than were thus authorized, which unnecessarily and unreasonably interfered with the use of the street, for no right of action would accrue to plaintiffs unless they have been injured in some special manner different from the public generally. An unlawful obstruction of a public highway is a public nuisance, not generally actionable, and a private person has a right of action only when he suffers an injury distinct from the public, as a consequence of the wrongful act. Ewell v. Greenwood, 26 Iowa, 377, and cases cited; Hougham v. Harvey, 33 Id., 203; William’s Case, 5 Cocke’s Rep., 72. See cases cited in notes on page.29 Sedgwick on Damages, 5th Ed.; Iverson v. Moore, 1 Salk., 15.
4__._. injunction. Although plaintiffs, as owners of a lot abutting on a public street may have such an incorporeal interest or right in the street as will enable them to enjoin a diversion of fo t0 uses anq pUrposes foreign to and inconsistent with the objects for which the street was granted to the city, (Cook v. City of Burlington, supra,) yet it does not follow, that, therefore, they may maintain an action for damages for an obstruction which' does not affect them differently from the public generally.
s.baimioads: right of way in cites.
*6767.-:: — : way. 1 *675III. "We have thus far examined the instruction complained of, on the theory that the defendant could only acquire a right-of-way for its railroad track over, and upon the . „ , public streets oí the city oí Dubuque, under the *676ordinances passed by the City Council. It was held by this court in The City of Clinton v. Cedar Rapids & M. R. R. Co., 24 Iowa, 455, that the legislature has authorized railroad companies to construct their roads over, and upon the streets of cities and towns in the State, without the consent of the city or town, and without compensation being made therefor, subject however, to proper equitable control. The same doctrine is again distinctly held in The C. N. & S. W. R. Co. v. The Mayor, etc., of Newton, 36 Iowa, 299; so in City of Clinton v. The Clinton & Tyons Horse R’y Co., Sept. Term 1873, it was held that the general statutes in respect to the right-of-way for railroads apply to an incorporated street or horse railway, and although it was built in pursuance of a city ordinance, a repeal of the ordinance does not render the railroad a nuisance, that it is authorized to maintain and operate its road under the general right-of-way act, subject to proper police regulations and equitable control. The same doctrine is again recognized and sanctioned in Cook et al. v. The City of Burlington, 36 Iowa, 357, where it is held that the city may by voluntary agreement convey to a railroad company the same rights to occupy the streets, and public grounds in the city for railroad purposes, as the company might acquire under the general right-of-way act.
It is thus apparent that the theory of the instruction is in conflict with these cases, and, for this reason also erroneous. Without discussing other questions made and presented by appellants, we conclude that the judgment must be reversed.
9. íbacitoe code. It is proper to 'remark that now by section 464 of the Code of 1873, authority is conferred upon cities and towns incorporated under the general incorporation laws to “ authorize or forbid the location and laying down of tracks for railways,” etc. This enactment, however, in no manner effects this case which was commenced prior to the taking effect of the Code, and the city of Dubuque is not organized under the general incorporation law.
Reversed.