SUPPLEMENTAL OPINION.
Adams, Oh. J.A petition for rehearing having been filed, we have re-examined the case in the light of it, but have reached the same conclusion as heretofore. It has seemed to us proper, however, in view of the importance of the principles involved, to set forth our views with somewhat greater fullness.
The plaintiff is in the use and enjoyment of the premises as a homestead. She comjilains that in 1873 the street upon which the premises abut was obstructed by a side-track which is still used and maintained by the defendant, and that by reason of the side-track and its use she has sustained special damages. The opinion holds that if the enjoyment of the plaintiff’s right is impaired or prevented by a wrong doer, she may maintain an action.
1. noMESTEAD: home!teat?into recover. The defendant in its petition for a rehearing insists that this is not so. In the first place, it is claimed that the foundation for such recovery is not laid in the petition, Our attention is called to the fact that the plaintiff makes a claim for damage done the building. *261Now it is said that the title to the building does not appear to be in the plaintiff, and without title she cannot recover for such damage.
To this we have to say that, having a mere right of occupancy, she could not of course recover for any injury to the reversionary interest. But we think the petition shows an injury to her interest. It shows that the use of the side track has so shaken the walls of the house as to render it almost worthless. If this is so, we think it sufficiently appears that her right has been impaired, although it may be but a mere right of occupancy. But the petition further avers that the use of the side track has rendered the building unfit for a dwelling, and that the plaintiff has suffered great annoyance and disturbance. This is certainly a sufficient allegation of injury to her interest.
It is insisted, however, that there may be debts against the estate of her husband for which the homestead can be made liable, and if so that it does not appear that the plaintiff has even a right of occupancy.
She has a right to occupy until her right has been divested. Her occupancy has been under such right, and her injury has not been less, by reason of the possibility that her right may be divested by the enforcement of claims against the estate.
2.bah,boads: nuisance. ' But it is said that her injury, if she has sustained any, is not of such a character as to give her a right of action. The defendant’s theory is that it had a right to lay its side track where it did, independent of any express authorization, and that a right of action could not accrue to the plaintiff from anything which the defendant had a right to do. If there was nothing more than a mere lack of authorization, it would appear from Davis v. C. & N. W. R. Co., above cited, that under the statutes existing when this side track was laid the defendant would not be liable. But there was- something more. The city council had provided by ordinance that the defendant should not lay its track within eight feet of the sidewalk. "We think it was competent for *262the city counci] to make this provision. It may be that the city council could not wholly prohibit the use of the street for a railroad, if the exigency of the case demanded it. Milburn v. City of Cedar Rapids et al., 12 Iowa, 246; City of Clinton v. Railroad Company, above cited. But the use should be consistent with other proper uses. Park v. C. & S. W. R. R. Co. above cited. It is true the use of a street by a railroad company, to any extent, necessarily interferes somewhat with other proper uses. Precisely how far the use by a railroad company might juoperly be allowed to interfere with other proper uses cannot be determined in the abstract. The general public is interested in the railroad use as well as in other uses. In a given case, then, the exigency of the company must be considered, as well as the nature and character of the street. To adjust and balance the conflicting considerations calls for the exercise of a wise discretion. This discretion, we think, is vested in the city council.
Where it is exercised without abuse, as we presume it was in this case, the restriction imposed by the council must be respected. Any use of the street by the company in excess of the restriction is unlawful. It becomes a nuisance. Now any person sustaining special damage from such obstruction of a street as amounts to a nuisance can maintain an action for such damage, and that, too, without owning the fee of the street obstructed. Ingram at al. v. Railroad Company, 38 Iowa, 669.
But it is said that it is not shown that the use made constitutes a greater obstruction than the use allowed by the council.
Whether, if the damage is not greater, the plaintiff might not still recover, if the damage results from a prohibited use, we need not determine. The track was laid twelve feet nearer the plaintiff’s house than the ordinance allowed, and she avers that she has suffered annoyance and disturbance from the proximity of the cars. That means, by any fair construction of the petition, that she has suffered damage *263which, she would not have suffered to the same extent if the proximity had been less.
3.-, damufng Injury.11 The point more especially relied upon by the defendant is that the damages are not continuous, and as the track was laid before the plaintiff’s, right attached, and especially as it was laid more than five years before the commencement of the action, the action cannot be maintained.
The ordinary rule is that where a person obstructs a street so as to cause a nuisance, and special damage to a person, the person injured can maintain an action only for damages sustained prior to the commencement of the action, the damages being regarded as continuous. Hopkins v. Railroad Company, 50 Cal., 190.
This is so for the very obvious reason that it is to be presumed that the obstruction will be removed, and with such presumption it would be unjust to allow a recovery for prospective damages. Now, there has never been a time since the track in question was laid when it was not subject to be removed if the city council had power to pass the ordinance, as we hold it had. Some nuisances are of such a character that they cannot be abated. Powers v. Council Bluffs, above cited. In that case nothing could be done except to arrest the action of the water by applying a remedy upon the plaintiff’s premises. But the nuisance in question is not of that kind; all that is required is to move the track in question toward the center of,the street or take it up.
It may be that the interest of the defendant, and the interest of the public through the defendant, is very greatly sub-served by the use of the track where it is, and it may be that the city council would be justified in modifying its ordinance so as to allow it to remain. But we have nothing to do with that question. ■ The laying of the track and the use of the track are prohibited by the ordinance as it stands. "While so prohibited the track and use constitute a nuisance, and the nuisance-being of such a character that it can be abated, it is *264to be presumed that it will be. We are told, however, that a railroad structure, although consisting merely of a sidetrack, is to be deemed permanent and is to be so treated, even where it occupies a street or highway. In support of this view our attention is called to the Town of Troy v. Cheshire Railroad Co., above cited. In that case a railroad built upon a highway was held to be a permanent structure and not subject to removal, and so'the town which was chai’ged with the maintenance of the highway was allowed to recover upon the theory that the railroad was not to be removed. Now it is said that the case at bar cannot be distinguished from that case.
It appears that in that case not only the r,oad-bed of the railroad was built upon the highway, but a bridge in the highway was taken out and a railroad bridge built which was impassable by the public using the highway. In this conjuncture the question of course arose whether the railroad should yield to the highway or the highway to the railroad. The court say: “ The railroad is, in its nature and design, and use, a permanent structure which cannot be assumed to be liable to change.” The railroad could, of course, have been removed. It was permanent, then, only in the sense that it ought to be so considered. The reasoning through which the conclusion was reached is not very fully set out, but reasons which might lead to such conclusion are abundant. The highway bridge had been wholly destroyed and no removal of the railroad would have restored the bridge. The railroad was constructed for the public convenience, and,- as might be presumed, where proper engineering demanded. The cost of providing such highway as was necessary for the diverted travel was doubtless much less than the cost of removing the railroad and the restoration of the original highway.
"Whether a railroad structure which obstructs a highway or street should be deemed permanent, not being such in the nature of things, must depend npon the nature of each case. We see nothing in the case at bar to justify us in holding that *265a railroad, side-track, laid twelve feet further from the center of the street of a city than is allowed by ordinance, is of such a character that it ought to be deemed permanent and not subject to removal.
But it is said that if this view was correct in the outset it is not so now, because so much time has elapsed since the track was laid, it should for that reason be'deemed permanent. In our opinion this position cannot be maintained. A right to continue a public nuisance cannot be acquired by prescription. Pettis v. Johnson, 56 Ind., 139.
It follows that the.damages are not original but continuous. The maintenance of the'track itself is, we think, a cause of damage, but the damage arises mostly from the continued use of the track, as held in the original opinion, all use, even though ordinary in its character, being improper.
In our opinion the petition for a rehearing must be overruled.