ON REHEARING.
Seevers, J.A rehearing was granted on the application of the defendant, and it is deemed best to restate the material question determined in the foregoing opinion, and state more fully the reasons inducing us to adhere thereto.
The pivotal question is, although the fee-title to the streets is in the city, yet it is held in trust for the public, subject to the control of the general assembly. Assuming for the present this proposition to be correct, it necessarily follows the sovereign power may, or may not, grant to cities the power to grade or otherwise control the same. Therefore, the claimed power, whatever it may be, should affirmatively appear to have been expressly granted in the charter, general statutes, or can be necessarily implied therefrom. So far from this being so, we think the contrary has been clearly indicated. Section 4.64 of the Code provides that cities may authorize or forbid the construction of railways in streets, but such authority can*472not be granted by tbe city except on condition tbe abutting property owner shall be compensated. When this statute was enacted, Code, § 1262, or the right of way act was in force, which authorized railroad companies to construct their roads lengthwise along streets. Section 464 of the Code affected all the cities in the State except six or eight organized under special charters.
Afterward there was enacted chapter 47, of the acts of the Fifteenth General Assembly, repealing § 1262 of the Code, and enacting a substitute therefor. See IVIcClain’s Code, §- 1262. This last statute authorizes railways to cross over or under any highway. There are no other statutes bearing on the subject under consideration, therefore, it can be safely-affirmed there is none giving the consent of the sovereign power to the construction of a railroad lengthwise along any highway.
It is insisted the Milburn case was not based on Code, § 1262, and that the foregoing opinion overrules that case. To this it may be said, in the first place, that such statute was in existence when that and all other cases were decided in which the question under consideration was before the court, and, therefore, no such question as the one now before us could have arisen in those cases. But it seems to us there can be no doubt as to what was decided in the Milburn case, or the ground upon which it was placed. It is there said: “Now the law making power of this State has thought proper, as we construe the statute, to give to railway companies the right to construct their railways upon streets of cities, and they have invested the local governments of those cities both with the fee of the soil of the streets, and the exclusive control over the same, and if, in the exercise of their proprietary rights and police regulations over streets, they should determine that iron rails and their use are a legitimate street improvement, upon what ground can the court determine otherwise, or control their authority in this respect. We apprehend none, for the reason that both the company a/nd the city have derived *473their rights and primileges in the premises from the sovereign power of the State, which cannot be supposed to authorize that which would amount to a nuisance.” In order to emphasize what we understand to be the ground upon which the decision is based, we have italicized a portion of the quotation. The decision rests on the grant of the sovereign power and the city. This last, in the subsequent case of The City of Clinton v. The Cedar Rapids & M. R. R. Co., 24 Iowa, 455, was held to be unnecessary, and that the company could rest securely on the legislative grant. This being essential, that of the city immaterial. The only statute relied on by the court in either of those cases was the right of way act. It is true there was some difference of opinion as to the governing statute, but this is immaterial in the present case.
It is said that “ cities, by virtue of the original dedication of the streets to the corporation, obtained authority to devote them to railroad purposes,” and that this doctrine was announced in Cook v. The City of Burlington, 36 Iowa, 357. The same point was made by counsel in Hughes v. M. & M. R. Co., 12 Iowa, 261, but the case was determined on the ground stated in the Milburn case. The only point decided in the Cook case was that the city might voluntarily do what the railroad company could accomplish by calling into ex ercise the power of eminent domain.
It is not claimed the dedicator in the act of dedication provided that said roads might occupy the streets, but as the act of dedication is silent as to the uses that may be made of the streets, the authority “given to cities by the statute regulating their dedication to the public” cannot be abridged. This implies there is an affirmative statute other than ,the charter giving cities control of the streets. We fail to find any such. There have been several enacted from time to time regulating the dedication of streets and public grounds. They are all in substance the same, and provide that “ the acknowledgment and recording of such plat is equivalent to a deed in *474fee simple of such portion of the lands as is therein set apart for public” use. Code of 1851, § 637. .
- The title is vested in the city for the use of the public. The city holds the title in trust for the public. The latter is, and can only be, represented or bound by the sovereign or law-making power. The city is much less than this, being the creature of such power, and possessing, only the powers expressly granted or necessarily implied. 1 Dillon on Municipal Corporations, § 55.
It is admitted on all hands the highways of the State are subject to the law-making power, and their use is controlled and governed thereby. Mills on Eminent Domain, § 203.
It is conceded the city, having first obtained the legislative assent, has authority to grant railway companies the right to use, and occupy with their track, a street of such city, and there is nothing in any of the opinions cited in Kucheman & Hinke v. The C., C. & D. R. Co., 46 Iowa, 366, which can be properly construed as going beyond this.
This whole doctrine is summed up in 2 Dillon’s Municipal Corporations, §§ 575, 576 and 577, after an examination of the reported cases by the learned author, and it is there said : “Where the fee of the street is in the municipality in trust for the public, or in the public, the control of the legislature is supreme, and it may authorize or delegate to municipal bodies the power to authorize either class of railways to occupy streets without providing for compensation either to the municipality or the adjoining owners.”
Our examination of the authorities leads us to the conclusion that the stated proposition is undoubtedly correct.
Counsel cite Moses v. The Pittsburgh & Fort Wayne R. R., 211 Ill., 516; I., B. & W. R. R. Co. v. Hartley, 67 Id., 439; Lexington & Ohio R. R. Co. v. Applegate, 8 Dana, 289; Atchison & Nebraska R. R. Co. v. Garside, 10 Kan., 552; and other cases. Lengthy quotations are made from some of the opinions for the purpose of establishing the proposition that cities have the power to authorize railroads to occupy a street *475independent of a right of way act or other legislative authority. In all of thé cited cases the requisite authority had been granted either in the charters of the city, company, or general statutes, and the contest was whether this could be done without compensating the abutting owner, and no more or less was decided therein than in the Milburn case.
No adjudicated case to which our attention has been called, and we believe it may safely be affirmed none exists, in which it has been held a city may authorize a railroad operated by the use of steam to occupy the streets of a city, unless authority to this effect has been granted by the sovereign power.
It is said: “All courts'everywhere have for the last fifteen years, without a dissenting opinion, conceded the authority of cities to grant the use of streets for horse-railways.” Because of this, it is further' said when it is admitted cities have authority to decide that one kind of advanced mode of travel may be allowed, their jurisdiction is coriceded, and cannot be controlled by the courts. We shall not stop to discuss either proposition. It will be conceded, if no change is made in the grade of the street, the weight of authority seems tq be the city may authorize a horse-railway to occupy the same. This doctrine is based on the ground “ there is no annoyance from fire, smoke, steam-whistles, or rapid progress, and it does not signify that the street railroad has an exclusive right to use its own track when occasion requires.” Mills on Eminent Domain, § 205. .It was so held in Henchman v. The Patterson Horse R. R. Co., 17 N. J. Eq., 75; and in that State the fee of the streets is in-the abutting owner. It had been previously held in Starr v. Camden & Atlantic R. R. Co., 24 N. J. Law, 592, that a highway could not be occupied by a railroad operated by steam, with legislative consent, without compensating the abutting owner. Both these cases are referred to with approval in Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R., 20 N. J. Eq., 61, upon the ground, it is presumed, stated in The Inhab*476itants of Springfield v. Connecticut River R. R., 4 Cush., 63, that where a road is operated by steam, and used by the general public also, the two uses are “ almost if not wholly inconsistent with each other, so that taking the highway for a railroad will nearly supersede the former use to which it had been legally appropriated.” This doctrine has not to our knowledge been anywhere impugned. It does not, therefore, follow the conceded proposition that a city may lawfully .allow the streets to he occupied by a horse-railroad, that it may do so where the road is operated by steam power.
The question before the court was whether the defendant had authority to permit the steam motor to be used on tlic street named in the petition. This question was determined in the negative. This being so, the further question arose whether the defendant was liable, conceding the allegations oí the petition to he true. This was determined in the affirmative. And beyond these two questions we had no occasion to go, and nothing short of this would have met the exigencies of the case.
The former opinion is adhered to¡
Adams, Oh. <L, dissenting.