ON REHEARING.
Servers, J.A rehearing having been granted it becomes our duty to re-examine the questions which have been so ably and elaborately discussed by counsel.
I. It is said in the foregoing opinion, “ it may not have been improper to aver, as an ultimate fact and to show all the surroundings, that other streets (than the one occupied by defendant) were also occupied by other railroads,” and it is therefore urged that the motion to strike out portions of the amended petition should have been overruled in the court below. Standing alone the paragraph above quoted might bear such construction, but when other portions of the opinion are read in connection therewith we think no such construction can be fairly claimed. The pivotal question is that the defendant railroad company should not be prejudiced or held liable for the occupation of other streets by other railroad companies; nor does the fact that other streets are so occupied tend to prove that the occupation of Durant street is a nuisance. The character and situation of plaintiff’s property, and the state and condition of the streets and approaches thereto, could be shown for the purpose of enabling the court or jury *397to determine the damages the plaintiff was entitled to recover, without any averment in the petition in relation to other streets, or whether they were obstructed or not. It cannot be doubted, we think, that either party may show the matters above indicated, even if there was no specific averment in the pleadings, for the purpose of enabling the jury to properly apply the evidence bearing on the question of damages.
II. It is clear that this action is in equity and seeks to have the alleged nuisance abated, and to recover damages by reason of its establishment and continuance. It is not a proceeding under the right of way act, and therefore it is useless and out of place to even discuss, much less determine, what the rights of the plaintiff would be had a different action been brought. The plaintiff bases his right to have the alleged nuisance abated and to recover damages upon the occupation of Durant street by the defendant, whereby “he has been obstructed in the free use of his property and the enjoyment thereof, and greatly damaged.”
It was held in Milburn v. The City of Cedar Rapids et al., 12 Iowa, 246, that a single track railroad in a street did not of itself constitute a nuisance. The only difference between that case and the present is, that here there is a double track which, it is alleged, occupies the entire street. It does not appear there was any negligence in the construction of the road or that the grade of the street has been in any manner changed, or that the second track is unnecessary or oppressive, or any other fact except the bare allegation of the construction of the road; therefore, the sweeping allegation that the street has been rendered unfit for the purposes of a street must be held to be a mere conclusion based on the facts stated. A double track undoubtedly occupies more of the street than a single one, and it may be conceded it occupies the whole street, but it does not follow that either the public or the plaintiff is thereby excluded from such street. That there are many streets where such joint occupancy exists, and where of necessity such must be the case, is undoubtedly true. Under the decisions cited in the opinion, it must be held that the railroad company, if the same be necessary for its legitimate *398business, has the right to occupy the street to the inconvenience of the public. The right of way act does not limit the right of such corporations to occupy so much of the street only as is necessary for a single track.
The defendant as the representative of the public occupied the street because it was authorized to do so by the city and the right of way act, and when what-is done is within the letter and spirit of the statute the same cannot be adjudged a nuisance. It may possibly be true that the exercise of a legal right in a proper manner may become a wrong, or by operation of law become a nuisance, but such cases are at least exceptional and the facts alleged in the petition do not bring this case within such exceptions. If there were allegations in the petition that the street in question was a populous one, or that large numbers of the general public were incommoded by the occupation of the street, or that owing to the grade embankment or fills the plaintiff was excluded therefrom or could not with safety travel thereon, and that his property was greatly damaged thereby, and that without great expense or inconvenience the right of way could be procured over other lands, we are not prepared to say that a court of equity could not regulate or in a proper case prohibit such use and occupation of the street. This case is clearly distinguishable from those where, owing to the improper construction of the railway, the plaintiff’s business is injured and a pecuniary loss sustained.
The cases cited in the opinion sustain this proposition: When a railway 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 consequential injury which he may sustain from the appropriation of the right of way. See, also, The City of Davenport v. Stevenson, 34 Iowa, 225, and Barr v. City of Oskaloosa, 45 Iowa, 275. This doctrine has been recognized by the courts of some of the other states and has been sustained by the most cogent reasoning. Snyder v. The Pennsylvania R. R. Co., 55 Pa. St., 340; The Cleveland & Pittsburg R. R. Co. v. Sheer, 56 Pa. St., 325; case of The Philadelphia & Trenton R. R. Co., 6 Wharton, 25; Moses et al. v. The Pittsburg, Ft. Wayne *399& C. R. R. Co., 21 Ill., 516; Louisville & Frankfort R. R. Co. v. Brown, 17 B. Monroe, 736; Hatch v. Vermont Central R. R. Co., 25 Vermont, 49. In the last case Redfield, Ch. J., said: “ So far as this court has been able to learn, merely consequential damages to lands not taken, where no statute provision upon the subject exists, have never been regarded as entitling the party to compensation from the state or those upon whom the state confers a public franchise in the exercise of which the damage occurs. * * * * In the absence of all statutory provision to that effect no case, and certainly no principle, seems to justify the - subjecting a person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damage to other persons in their property and business.” The result is that the former opinion is adhered to.