I. The court gave to the jury the following among other instructions:
“ Streets are for public use, by any and all persons that seek to travel thereon, and the appropriation of a street by a railroad company exclusively, and rendering travel thereon impossible or unsafe, gives to any property holder abutting thereon a right to recover damages therefor, unless such individual does not own the fee to the middle of the street, then such person only owns to the line of the street, and. cannot recover for any damages similar to the case at bar.”
“The plaintiff and his grantors being the owners of the premises in question, they were by virtue thereof the owners in fee of the street, or in other words, plaintiff by permitting, or the city by establishing the street, gave to the public the easement or right of way over this ground, but the fee or ownership remains in the plaintiff. Hence, the only privilege or right taken from him was the easement the public had in this for the use of an ordinary street, and that now the use of the same for the purpose of a steam railroad is an additional burden, which cannot be imposed thereon without compensation. to the proprietor for this new servitude.
While the city has power to grant the right of way in a street, the company avails itself of this privilege at its peril, that is to say, if in laying its track it causes a private injury to him who owns the fee in the adjoining premises it must make good to such owner the damages he has sustained.”
l. KATHtoADs: ?d<moe.es ’ev The thought of the foregoing instructions is that the plaintiff’s right to recover is based upon his ownership of the fee in the street in question, and the jury are plainly told that plaintiff is the owner of the fee, and that if the ownership were only to the line of the street no recovery can be had for any damages similar to the case at bar.
The defendants offered in evidence the deed of the right of way over the premises. Objection was made to its introduction, which was sustained, the court ruling that it was not admissible for any purpose. In this we think there was error.
If, as the court instructed the jury, the plaintiff is entitled to recover by reason of his ownership of the fee in the street, *410the deed of right of way should have been admitted in evidence, as it conveyed to the defendant, the railroad, company, the right to ’ construct its road upon- any part of the premises in question. And further, the exclusion of the deed necessarily excluded all evidence as to the condition of the construction of the road at' the time the deed was made. It is alleged in the petition that on and after August 1st, 1870^ the street in question was wholly obstructed. The deed was executed Dee. 7, 1870. If the road was constructed in the street when the deed was made, or if it was in course of construction, so that it was evident the right of way would be. taken in the street, the conveyance of the right of way, it seems to us, would have an important bearing upon the plaintiff’s right to recover based upon his ownership of the fee in the street.
Another important consideration is that it is not alleged in the petition that the plaintiff is the owner of the fee in the '.street. The theory of the instructions is that to recover plaintiff must be the owner of the fee, and that the road was' improperly constructed, so as to prevent travel on the street . to plaintiff’s damage. But as there was no allegation of ownership in the street, it was improper to submit the case to- the jury upon that theory.
2. — ¡--: street?*1011 oi II. The petition does not allege that the railroad company improperly constructed its road so as to prevent travel upon the street; unless it may be that the allegation that the whole of the street was' occupied with the railroad to the exclusion of the public, may be held to be sufficient to present that issue. We are inclined to think, in the absence of a motion for more specific statement, that the petition is sufficient for that purpose.
It is insisted in the argument for appellants that as the railroad company had the right to occupy the street, with the permission of the city, ho action will lie by private persons for such occupation. We are not prepared to. assent to this proposition to its full extent. While it is true we have uniformly held, where the fee of the streets is not owned by the adjoining proprietors, that a railroad company has. the *411right to take and use streets for the purpose of building and operating railroads, yet it does not follow that in so doing the road may not be so negligently built, or the street so occupied as to create a nuisance. Apd in such case, any one who suffers special damages not common to the whole public may recover. See Cadle v. Muscatine Western R. Co., 44 Iowa, 11, and Park v. C. & S. W. R. Co., 44 Iowa, 636.
To entitle a party to recover such special damages we do not think it necessary that he should own the fee in the street, but as the case at bar was not submitted to the jury upon this theory, it is unnecessary to pursue the thought further.
3 measure of. III. The court gave the jury the following instruction: “The test or method of arriving at such damages is to deter-the marketable value of such property before piaintiff was deprived of his street or access to his property, and what is now the marketable value of such property deprived of such street or access thereto, and the difference between these amounts should be your verdict.”
This action is not a proceeding under the right of way act, and the judgment upon these pleadings does not determine the right of the defendant to use and occupy the street in question, to the exclusion of the plaintiff and all others for all time to come. If such were the effect of the judgment the measure of damages provided in the above instruction would be correct. But the railroad company to avoid the payment of damages and costs may cut into the bank, or otherwise widen the street so as to allow a passage way for travel, and thus avoid further liability. Conceding plaintiff’s petition to be true, plaintiff is entitled to such special damages as he may have sustained from the time the street was obstructed by the railroad company down to the commencement of this suit.
. . street1: íiabiiíty of city. IY. The defendants both joined in the same defense, and no separate defense was made for the city of Dubuque in the court below. It is now insisted that whatever liability there may be against the railroad company defendant, there can be no recovery against the city.
As the cause must be reversed for the errors above discussed, *412it is not necessary to determine the effect of a failure of the city to make a separate defense in the court below. We do not believe the city is liable. It may by ordinance permit the use of a street for a railway. The railway (company accepts the grant subject to liability for any damages which may be sustained by individuals, by an improper, construction of the road, or unauthorized use of the street. The use of the street under such permission or grant cannot make the city liable in damages.
Reversed.