(Dissenting.) — -With due respect for the opinion of the majority, I am unable to agree with the conclusion reached, and shall, as briefly as I may, give my reasons for this dissent.
The question presented is, perhaps, not very important now, except as a rule for construction, because, by .Chapter 162 of the Acts of the Thirty-fifth General Assembly, the legislature has given the authority to condemn, claimed by the defendant to have existed prior to the enactment of said Chapter 162.
The question presented, as appellee states it, is as to whether, under the law existing at the time in question, a railway company has authority to condemn land for necessary embankments for the purpose of highway crossings over the right of way; and its contention is that the whole question turns upon the use of the word “embankments”, in Section 1998 of the Supplement of 1907. The appellee also states its position a little differently by saying that the question is as to the right of condemnation for the purpose of embankments separating a road crossing from the railroad track.
Plaintiffs state the question as follows: Does the statute authorize condemnation of lands for crossing approaches? And they say that the fact that crossing approaches may be built by piling earth in the street, thereby creating what may be called an embankment, cannot in any way determine the issue. And they say that, suppose defendant should build these crossing approaches out of timbers stood on end, and seek to take appellants’ land for so doing, they could not assert such an approach as an embankment; and they say further that the fact that the crossing approaches are built out of earth instead of steel or timber will not govern; and they argue that, if the law compelled the company to build these approaches out of timber, steel or cement pillars, it could not *14be claimed that such a construction would be an embankment, as contemplated by the statute. Cases are cited by appellants to the effect that statutes granting the right of eminent domain must be strictly construed, and appellee concedes that this is the rule.
The contention and argument for appellee are substantially this: That there are a great number of things for which embankments are necessary in railroad building, other than to support the track; that highway crossings form a very apt illustration; and that the only thing necessary for this court to do is to say whether or not the term ‘ ‘ embankments1 ’ is to be limited to embankments supporting the track, or whether it is to include all embankments which are reasonably necessary and proper in the construction of the road; that highway crossings over the track may be at grade, or above or below the grade of the track, and that, at the time of the condemnation proceedings in this case, the statutes of Iowa authorized the companies to support the grades; that Chapter 162 of the Acts of the Thirty-fifth General Assembly does not in any manner destroy the right of the company to support the grades, the same as it could do under the law prior to the passage of that act; that, at the time of the condemnation proceedings referred to in this cause, Section 2017 of the Code was in effect, which provided that any such corporation (railroad company) might raise or lower any road for the purpose of having its railway pass over or under the same, and that this statute was in effect at the time the legislature passed Section 1998 of the Code Supplement of 1907, which latter section specifically provided that a railway company might condemn additional land outside of its 100-foot strip for different purposes named in the section, one of which is for embankments; that Section 2017 authorized overhead and underground crossings as necessary parts of a railway (and embankments and excavations outside the 100-foot strip are frequently necessary for such purposes), and stated that additional ground might be taken for excavations and *15embankments, and did not limit or narrow the purpose for which the excavations or embankments should be used, and that, therefore, the legislature intended that the railroad company, with the approval of the Railroad Commissioners, might take additional ground for the purposes of any excavations or embankments that were reasonably necessary and proper in constructing the railroad; that a road crossing over a railway track or right of way is as much a part of the railroad as the rails upon which the trains run or the ties which support the rails; that it must follow,- then, that an embankment reasonably necessary to support either a surface road crossing, or an overhead crossing, or an excavation for the purpose of an underground crossing, is a part which is necessary in the construction of the railroad, and that, therefore, such embankment or excavation is within the meaning of these words, as used in Section 1998 of the Supplement of 1907.
They cite 3 Elliott on Railroads (2d Ed.), Sec. 1105, and Clawson v. Chicago & G. S. R. Co., 95 Ind. 152 (20 Am. & Eng. R. R. Cases, 56), where it is stated that it has been held that the company may condemn property for the purpose of the necessary approaches and abutments to a new crossing.' They also cite 33 Cyc. 272, that the duty of restoring the highway carries with it the right to exercise any powers conferred upon the railroad company by statute which are necessary and proper, and that, for the purpose of restoration, the railroad company may change the grade of a highway or change the location of a highway, and acquire by purchase or condemnation the land necessary for such purpose; and contend that, looking at the statute in this light, it follows that, where an embankment is necessary, and it has been found by the Railroad Commissioners to be necessary for the purpose of carrying a highway over the railroad tracks, then such is an embankment, within the meaning of the statute.
As to some of the appellee’s contentions, I cannot assent. An examination of the statutes authorizing the condemnation of lands by a railroad company shows that, until *16the enactment of Section 1998 of the Code Supplement of 1907, such a company was limited to the taking of not more than 100 feet, excepting that greater width might be taken, as provided by other sections. Section 1995 authorizes the company to condemn lands, and provides that such land shall not exceed the width of 100 feet, ‘ ‘ except for wood and water stations, unless greater width is necessary for excavation, embankment or depositing waste earth”. In construing this section, first appearing in the Code of 1873, we held that it was presumed, in all eases where the company sought to take 100 feet or less, that such land was “necessary for the location, construction and convenient use of its railway”. On the other hand, it was held that, unless such additional land was to be used for wood and water stations, or for necessary excavation, embankment or depositing waste earth, it could not be taken, no matter how great the convenience or necessity. Under this section, it was held that the company could not take additional land for depot grounds. Forbes v. Delashmutt, 68 Iowa 164. See also Crandall v. Des Moines Railway, 103 Iowa 684; Minneapolis & St. L. R. Co. v. Chicago, M. & St. P. R. Co., 116 Iowa 687.
Such was the law until the enactment of Code Section 1998, by the Twentieth General Assembly. Section 1996 of the Code granted the right to condemn for reservoir purposes; Section 1997 granted the right to condemn to lay water pipes ; and Section 1998, the right to condemn for additional depot grounds. So that, until the enactment of Section 1998 of the Code Supplement of 1907, a railway company could not claim any right to take lands for the construction of crossing approaches thereon. Section 1998 of the Supplement is an amendment to Section 1998 of the Code of 1897, and gives the company greater rights in some respects. It rea'ds:
“Any railway corporation owning or operating or constructing a railway shall have power to condemn lands for necessary additional depot grounds or yards, for additional or new right of way for constructing double track, reducing .or *17straightening curves, changing grades, shortening or relocating portions of the line, for excavations, embankments, or places of depositing waste earth, in the same manner as is provided by law for the condemnation of the right of way.”
Code Section 2017 was repealed by Chapter 162 of the Thirty-fifth General Assembly, and it is not necessary, perhaps, to quote that section. The statute repealed by this act provided that a railway company “may raise or lower any turnpike, plank road or other road for the purpose of having its railway cross over or under the same, and in such cases said corporation shall put such road, as soon as may be, in as good repair and condition as before such alteration”.
Such was the law at the time the condemnation proceedings were commenced by the defendant in this ease.
We think Section 1998 of the Supplement to the Code, 1907, does not authorize the condemnation of land for the purpose of constructing crossing approaches to an overhead bridge. Before it could be so held, a construction of the statute would be necessary, to the effect that the term “embankments” was used by the legislature with the intention that it should mean the same as the term “crossing approach”, or that, because the railroad company is in this case building an earthen crossing approach and such structure might be termed an embankment, it was the intention of the legislature, when enacting this statute, that the term “embankment” should cover all such structures, regardless of the purpose for which they were to be used.
It seems to me that, to sustain the demurrer, we must find that the purpose and use of the embankment is immaterial. Whether or not the embankment is reasonably necessary and proper in constructing the railroad, as argued by appellee, is a question of fact, we think, which must be raised by answer, and not by demurrer. Otherwise, all the company would have to do would be to build an embankment, whenever it wants to condemn private property, and then use *18that embankment for crossing approaches, stockyards, elevators, storage houses, or for any other purpose. There is nothing in the petition or demurrer showing the location of the crossing approaches, whether the grade is higher or lower than the grade of the tracks used, whether a grade crossing would have been better or worse than an overhead crossing, or any other fact showing that these crossing approaches were necessary and proper in the construction of the road. It may be that these approaches are not necessary at all; that a grade crossing would give better service than the overhead. The demurrer raises but the one issue, and that is the right of the company to condemn private property for the purpose of placing an embankment of earth thereon, regardless of the use of such embankment. It is true that appellants’ petition shows that these embankments are used as crossing approaches; but we think there is no presumption that all crossing approaches that a company may desire to build are reasonably necessary and proper. The burden is upon the company to show that the grant of the power is for the specific purpose for which it proposes to appropriate the landowner’s property. Northern Light v. Stacher, (Calif.) 109 Pac. 896; Marshall v. Village, (Vt.) 76 Atl. 411; Western Union Tel. Co. v. Pennsylvania R. Co., 120 Fed. 362.
It may be that it was unnecessary to the discussion to refer to the question as to whether the crossing approaches were reasonably necessary. We have referred to the point briefly because it is a part of appellee’s discussion. The fact that these embankments are constructed by piling earth upon a certain spot does not. prove them to be embankments, and certainly does not show them to be such embankments as are contemplated by the statute. The question is: Does the statute authorize condemnation of lands for crossing approaches, or did it at the time these condemnation proceedings were commenced f The fact that crossing approaches may be built by piling earth in the street, thereby creating what might be called an embankment, in one sense does not *19necessarily determine tbe issue. The language used in the notice given by the defendant in this case reads:
. “Has taken and appropriated to its own- use the following described real estate, being additional land necessary for the use of its railroad, for additional new right of way, for changing grades, for excavations and embankments, or for public crossing approaches across its tracks.”
In this, other terms than “embankments” are used, particularly the last clause, indicating that the company, in preparing the notice, did not consider the term “embankments” as synonymous with “crossing approaches”. In a sense, earth piled into an artificial bank or mound would be an embankment. 15 Cyc., 485. But we think, as used in the section of the statute under consideration, it means only those embankments upon which tracks are laid, or which are part of the road bed, and that the statute only permits the taking of land additional to the 100 feet when these embankments must be made so high that a base of 100 feet is not sufficiently wide. If there is doubt as to whether the statute grants greater authority than this, that doubt should be resolved against the defendant. Authority to take land by condemnation for the purpose in question must be found, if at all, in the statute; for the company is attempting to exercise one of the highest prerogatives a sovereign can delegate to a subject, as stated in Minneapolis & St. L. R. Co. v. Nicolin (Minn.), 79 N. W. 304. The power must be clearly granted, and every presumption is in favor of the individual landowner. Minnesota Canal Co. v. Koochiching (Minn.), 107 N. W. 405 (5 L. R. A. (N. S.), 638, 642.)
There is a suggestion in argument by appellee that plaintiffs have an adequate and speedy remedy at law in view of the fact that they elected to appeal from the award of the sheriff’s jury. But, without further discussion, we think the cases of Forbes v. Delashmutt, 68 Iowa, at 164, and Laplant v. City of Marshalltown, 134 Iowa 261, 264, hold that, under similar circumstances, an injunction will lie.
*20In my opinion, the law at the time these proceedings were commenced did not authorize condemnation for purposes of crossing approaches, such as were contemplated by the company in this case. I would reverse.
Deemer and Weaver, JJ., join in the dissent.