Cain v. C., R. I. & P. R.

Eothrock, J. I.

That a railroad company may locate and build its road in the public streets of a city or town in this State, without the consent of the corporate authorities of such city or town, has been definitely settled by frequent decisions of this court. City of Clinton v. C. R. & M. R. R. Co., 24 Iowa, 455; Chicago, Newton and Southwestern R. Co. v. Mayor, etc., 36 Id., 299; Cook v. City of Burlington, 36 Id., 357; Slatten v. Des Moines Valley R. Co., 29 Id., 148; City of Clinton v. C. & L. R’y Co., 37 Id., 61; Davis v. C. & N. W. R. Co., 46 Id., 389.

. It is also well settled that such right is subject to equitable control, and proper police regulations, and if a railroad be constructed upon a street in such a careless, improper or negligent manner as to be an injury to the owner of property abutting upon the street, he may recover damages by reason of such careless, negligent and improper construction, provided his injury be special and not common to the general public. Cadle v. Muscatine Western R. Co., 44 Iowa, 11; Paris v. C. & S. W. R. Co., 43 Id., 636; Frith v. City of Dubuque, 45 Id., 406.

This court has never determined that a person cannot recover damages for special injuries to his property by reason of the construction of a railroad in the street of a city; and, the right to construct being subject to equitable control and proper police regulations, the ordinance of the city of Des Moines prescribing the extent to which Yine street should be occupied by railroad tracks was just such an ordinance as it had the power to make and enforce, provided it was not an unreasonable restriction upon the railroad company. That it was not unreasonable must be presumed, in the absence of a showing to the contrary. The allegations of the petition being conceded by the demurrer to be true, Eobert Cain undoubtedly had the right to recover damages of the plaintiff for building a railroad trade within six feet of his house, in violation of the ordinance of the city, and operating it in the manner set forth in the petition. His right of recovery would have been grounded upon the fact that he was the owner in fee of the property. The plaintiff herein could not have maintained an action before her husband’s death, because, while she jointly with her husband occupied the homestead, the title was in the husband.

The main ground of the demurrer is that the plaintiff cannot recover because the damages which accrued to the husband in his life-time were entire, and were capable of being determined at the time the side track was laid. In other words, it is said, if the husband had commenced an action he would .have recovered not only such damages as had then accrued, but all subsequent damages, because the railroad track was a permanent structure, and the damages were susceptible of immediate estimate. To sustain this view, reference is made to Powers v. Council Bluffs, 45 Iowa, 652. That was an action against the city for constructing a ditch along a public street in such a negligent manner that the plaintiff’s property was injured, not from the original construction, but by reason of the action of the water in washing away the bottom and sides of the ditch along the plaintiff’s lots. It was held that the damage was original, susceptible of immediate estimation, and was the difference between the value of the lots as they would have been if the ditch had been properly constructed and the value of them as they were, with the ditch as it was. It is said in that case: “While no infallible test can be applied to enable us to determine whether a structure is permanent or not, inasmuch as nothing is absolutely permanent, yet, when a structure is practically determined to be a permanent one, its permanency, if it is a nuisance and will necessarily result in damages, will make the damages original.”

The broad distinction between that case and the case at bar is that the damages in the former, necessarily resulted from the construction of the ditch, without the interposition of any human agency, while in the latter the damages arise not so much from the laying of 'the side-track as by its continued and improper use by the defendant. It is averred in the petition that the use of said side-track for railroad purposes has shaken the walls of said house so as to render it useless, and by leaving cars standing upon the track in front of plaintiff’s door for a day or two at a time, and by other annoyances connected with the operation of the road, the plaintiff is damaged. It is said in Town of Troy v. Cheshire Railroad Co., 3 Porter (N. H.), 83, that: “Where the nuisance is of such character that its continuance is necessarily an injury, and where it is oka permanent character that will continue without change from any cause but human labor, then the damage is an original damage and may be at o.nce fully compensated.” The case at bar is in no proper sense within this rule. The damage is a continuing one, resulting largely from the daily operation of the road by running engines and ears over it, and allowing them to remain upon it. The nuisance, so far as is occasioned by operating the road, would be abated, not by human labor, but by ceasing to use human labor to the plaintiff’s injury.

The general rule is that every continuance of a nuisance is a fresh one, and that successive actions may be maintained for damages so long as the nuisance is continued. This principle has been so often announced that a citation of cases seems scarcely necessary; a few will suffice. Staples v. Spring, 10 Mass., 72; Holmes v. Wilson, 10 Adolphus & Ellis, 503; Blesh v. C. & N. W. R. R. Co., 43 Wis., 183; Carl v. The Sheboygan & Fond du Lac R. Co., Sup. Ct. Wis., 1 N. W. Rep., 295.

Having found that the damage alleged in the petition is not original but continuing, and that successive actions may be maintained, so long as it is continued, it remains to be determined whether the' plaintiff can maintain an action, she being tlie occupant of the property as her homestead. That she cannot recover for any injury to the property which accrued during the life of the husband seems to us to be clear. But it appears equally clear that she may recover for such damage as she has sustained since the death of her husband. That the owner of a life estate, or even a lessee, may recover damages occasioned by a nuisance affecting the real estate held or occupied by him, can admit of no question. The plaintiff in this case has a homestead interest in the property. It may continue for life, depending upon the occupancy of it. If the enjoyment of her right is impaired or prevented by a wrong done, she may maintain an action. She cannot, of course, recover for an injury to the reversionary interest, but if the side-traclc was wrongfully laid, as alleged, she may compel its removal. Code, § 3331.

Eeversed.