•6.-: rigiu ' of street.use dissenting. — I do not concur in the doctrine 'that a lot owner may recover damages for the occxxpation by a railroad, in a careful and prudent manner, of an adjacent street in a city. I have time and opportunity to express' my views only in a very brief manner. It has been held in this State, that under the general right of way statutes, railroads have a right to pass over the streets of a city. Milburn et al. v. The City of Cedar Rapids et al., 12 Iowa, 246. In City of Clinton v. The Cedar Rapids *380& Mo. River Railroad Company, 24 Iowa, 455, it was hold that, where the fee of the streets in a city is vested in the corporation in trust for tire public, the legislature tna3 authorize them to be used by a railroad company in the construction of its road, without the consent of the city and without compensation.-^See, also, The Chicago, Newton & Southwestern Railway Co. v. The Mayor and Trustees of the town of Newton, 36 Iowa, 299; The City of Clinton v. The Clinton & Lyons Horse Railway Co., 37 Iowa, 61; Ingraham, Kenedy & Day v. The C. D. & M. R. R. Co., 34 Iowa, 249.
It is also now the recognized doctrine in this State, that where a railroad is constructed over a street in a city, in a careful and proper manner, the owner of an abutting lot, who does not own the fee in the street, cannot recover damages for the consequential injury which he may sustain from the appropriation of the right of way. Slatten v. Des Moines Valley Railroad Company, 29 Iowa, 148; The City of Davenport v. Stevenson, 34 Iowa, 225. This doctrine has also been recognized and sustained by the most cogent reasoning by the courts of several other States;"’See Snyder v. The Pennsylvania Railroad Company, 55 Pa. St., 340; The Cleveland & Pittsburg Railroad Co. v. Spur, 56 Pa. St., 325; Case of The Philadelphia v Trenton Railroad Company, 6 Wharton, 25; The City of Philadelphia v. The Empire Passenger Railway Co., 3 Brewster, 547; Faust et al. v. The Passenger Railway Co., 3 Philadelphia Rep., 164; Moses et al. v. The Pittsburg, Fort Wayne & Chicago Railway Co., 21 Illinois, 516; Louisville & Frankfort Railway Co. v. Brown, 17 B. Monroe, 763; Hatch v. Vermont Central Railroad Co., 25
center of the street can make any difference upon the right of the owner of an abutting lot to be compensated for the use of the street by a railroad. In such case the adjoining proprietor owns the mere naked fee subject to the public easement. In the case of The Philadelphia & Trenton Railroad Company, 6 Wharton, 25 (45), the Supreme Court of Pennsylvania empdoy this language: ownership of the fee to the
*381“What then is the interest of an individual inhabitant as a subject of compensation under the constitutional injunction, that private property be not taken by a corporation for public use? Even agreeing that his ground extends to the middle of the street, the public have a right of way over it. Neither the part used for the street nor the part occupied by himself is taken from him; and as it was dedicated to public use without restriction he is not within the benefit of the eonstitirtional prohibition, which extends not to matter of mere annoyance. The injury of which he can complain is not direct but consequential. It consists either in an obstruction of his right of passage, which is personal, or in a depreciation of his-property by decreasing his enjoyment of it; but no part of it is taken from him and acquired by the company.” The same doctrine was recognized in Snyder v. The Pennsylvania Railroad Co., supra, in which it was held that a lot owner, was not entitled to damages for the occupation of a street by a railroad, although he owned the fee to the middle of the street. The case of Morris & Essex Railroad Co. v. The City of Newark, 2 Stockton’s Chancery, 352, recognizes the same doctrine. In this case it is said:
“ It follows that where a public highway is used by a railroad company in common with the public, under the sanction of the legislative authority, it may enjoy such use without making compensation to the owners in fee of the adjacent lands, and that the legislature may authorize such use without providing compensation, even under the existing constitution of the state, which provides that individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners. The authority to use a public highway for the purpose of a railroad, retaining the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such talcing of private property from the’owner of the fee of the adjacent lands as is contemplated by this provision of the constitution. -The easement of the highway is in the public, although the fee is technically in the adjacent owner. It is *382the easement only which is appropriated, and no right or title of the owner interfered with.”
• The Supreme Court of the United States has sanctioned the doctrine that the ownership of the fee to the center of the street is immaterial. See Barney v. City of Keokuk, cited in the opinion of Justice Adams.
I concede that there are cases which recognize a contrary doctrine. But they are nearly all based upon the doctrine that the use of a street for a railway is an additional servitude not authorized by the original dedication. This doctrine has been expressly repudiated by this court. In Milburn v. The City of Cedar Rapids, supra, the doctrine is sanctioned that the. laying down and operating a railway track over a part of a street is not an unreasonable obstruction of its free use, nor incompatible with its original dedication. There are but few cities in this state in which the fee in the center of the street belongs to the owner of adjacent lots. Where additions are made to these, under the existing statutes, the fee vests in the corporation for the use of the public. There seems to me to be no propriety in a rule which denies recovery to part of the lot owners in a city or upon a street, and at the same time permits others, who have sustained no more real injury, to recover. I think the rule adopted in Slatten v. The City of Des Moines applies equally to the case where the lot owner owns the fee to the center of the street. Holding, for these reasons, that the judgment should be reversed, I deem it unnecessary to express an opinion upon the other questions discussed.
I am authorized to state that Seevers, J., concurs in these views.