i damagesal quod damnum. I. Section one, chapter 3é, laws of the Fifteenth General Assembly, is as follows: “That any person, co-partnership, joint stock association, or corpora-^0T1’ owning, leasing, or possessing any lands having thereon or thereunder any coal, stone, lead, or other mineral, may have established over the land of another a public way from any stone quarry, coal, lead, or other mine, to any railway or highway, not exceeding (except by the consent of the owner of the land to be taken) fifty feet in width. "When said road shall be- constructed it shall, when passing through inclosed lands, be fenced on both sides by the persons or corporations causing said road to be established.” Sections two and three, of this chapter, contain provisions for the condemnation of-right of way. Section four is as follows: “Any owner, lessee, or possessor of lands having coal, stone, lead, or other mineral thereon, who has paid the damages assessed for highways established under this act, may construct, use, and maintain a railway on such way, for the purpose of reaching and operating any quarry or mine on such land, and of transporting the products thereof to market. In the giving of the notices required by this act, the applicant shall state whether a railway is to be constructed and maintained on the way sought to be established; and if it be so stated the jury shall consider that fact in the assessment of damages.” Ve do not understand the appellants, either in the pleading filed or in their argument, to question the constitutionality of this statute. We rather understand them to concede that under the pn-ovisions of this statute a pmblic road may be established, but to maintain that the road in question is a private one, intended simply for pnivateuse. In their arguments the appellants say: “To the allegation that this road is a private one, and so intended by the defendant, it is no answer to say that under the statute a public road may be established; the material inquiry is, what is the character of this particular road, and not what kind of a road may be established imder the pn-ovisions of the statute. It is quite possible that, pursuant to those provisions, a road might be established that would promote the public welfare and accommodate tile public convenience and be of public *40utility, and it is entirely possible that a road may be established thereunder that would possess none of these elements, and that would in every material respect be entirely wanting in those elements and qualities that must necessarily characterize a public use.”
is to be observed, however, that the statute authorizes the construction only of a, public way. No authority is conferred in the statute to construct a private way. The coal company is proceeding to condemn lands under this statute. If the condemnation is effected under the statute, the way condemned mush be a public way, because the statute authorizes no other. When the plaintiffs allege that the railway of the coal company is a private one, they allege simply that the coal company has established, or is seeking to establish, under the statute, that which under the statute cannot exist. They simply, in effect, allege that that is private which the statute says is, and must be, public. The plaintiffs further allege that the railway is intended to be used by the company for the transportation of its own coal, from the mines of the company to the road of the Central Railroad of Iowa and the road of the Des Moines Talley Railroad Company. It matters not what the secret purpose' and intention of the company may be. It is seeking to condemn land under this statute, and if it makes the condemnation.it must accept all the conditions and provisions of the statute. One of these is that the way - shall be public. We have no doubt that if the coál company condemns the right of way-under this statute, it may be compelled to permit other owners of coal, stone, lead, or other mineral, upon making proper compensation, to have transportation therefor over its road,/’" '
2<_._. CHStsII. The commissioners assessed the damages of Jones at $500, and those of Price at $G00. Upon' the appeal Jones was allowed $300 and Price $500. The court taxed all the costs of the appeal, amounting to $545.35, to the plaintiffs, to be equally divided between them. The effect of this ruling is, that the actual amount recovered by Jones is reduced to $27.32, and that recovered by Price is reduced to $227.38, although both were satisfied with the damages awarded by the commissioners. They are made to *41bear tbe expense made by tbe company in reducing tbe award of the commissioners. This inequitable result was accomplished under section 1252 of the Code, which is as follows: “The corporation shall pay all the costs of the assessment made by the commissioners, and those occasioned by the appeal, unless on the trial thereof a less amount of damages is awarded than was allowed by the commissioners.” This section does not provide that in any case the land owner shall.pay all the costs of the assessment and appeal. It simply makes it imperative upon the court to tax all the costs of the assessment and of the appeal to the corporation, when the damages recovered are not less than those awarded by the commissioners. In such ease the court has no discretion, but must tax all the costs to the corporation. If the damages recovered are less, the court is not under obligation to tax all the costs to the corporation. But the court is not under obligation to tax all the costs to the land owner. In such case the court is at liberty to make a proper distribution of the costs, under the general rules of law. If the land owner has appealed and recovered less than was awarded by the commissioners, the court may tax to him the costs of the appeal. Upon the other hand, if the corporation has appealed, the statute does not exonerate it from the payment of the costs. In assessing all the costs to the land owners, the court erred. Upon this point the cause will be reversed and remanded to the court below for such assessment of costs as may seem proper, under the general provisions of the law, without reference to section 1252 of the Code.
Reversed.
Seevers, J., having been of counsel, took no part in this case.