Joseph P. Bradley

“ It has never been held by the Supreme Court of Iowa that any statute of that State authorizes a municipal corporation to devote one of its streets to the use of a railroad company for laying its tracks and operating its road thereon, without the consent of the owner of the fee, and without compensation where that owner is a private person. ”

“ It is, that if this ground is dedicated to the public, it is as a street only; and that if his rights are subject to the public uses, they are so subject to the use of it only as a street or highway, and not as a wharf, and that it is named and called a street and not a wharf. He claims that the object of a street is for passage, for travelling over, and not to land or deposit goods upon. This is taking a very narrow and close view. The streets of a town are fairly subject to many purposes to which a highway in the country would not be. ”

“ The city, by its answer, admitting that the plaintiff is owner of lots 5 and 6, in block 3, states, in substance, that all the land in front of them down to the Mississippi River was in 1840 dedicated to public use as a street and levee, and, as such, has been used and improved ever since under the possession and control of the city, by virtue of its charter, and has, at its expense, been extended out about two hundred and fifty feet by depositing earth and stone in the river, in order to make the wharf and levee more convenient, safe, and useful. ”

“ It can use the entire surface of the street, pave, curb, gutter, build sewers, lay water and gas pipes, permit the erection of telegraph poles and the construction of horse railways. The running of a railway car, whether propelled by horse or steam power, is not a permanent obstruction of the street. The track itself, when laid down by the railroad companies, under the direction of the proper authorities, and properly planked or paved, so as not to obstruct materially the passage of persons and vehicles over it, is not a burden for which compensation should be claimed. ”

“ Counsel insists upon the power given to the city of Keokuk by its charter to construct a wharf, and to use Water Street for that purpose, but omits to state the important fact that this authority was coupled with an explicit provision that just compensation should be made for private property taken for this purpose. As the charter makes this requirement, there is no foundation for the claim that it authorized the city to take the plaintiff's property without compensation. ”

“ It cannot be denied that horse-railroads have contributed immensely to the public convenience in furnishing a rapid, cheap, and convenient means of communication between different parts of large towns, and have greatly promoted their increase and growth in wealth and population. By the accommodation which they afford, the citizen can reside miles from his shop or place of business. Though attended with some inconveniences, they have greatly added to the efficiency of the public thoroughfares, and have more than doubled their capacity for travel and transportation. ”

“ It has been standing a good many years, . . . is used for storing freight by said railroad company, is two hundred and three feet long and twenty feet wide, and one story high, and covers the whole of the front of said lots 5 and 6, block 3.
'2. By the railroad tracks used by the defendants, the Keokuk and Des Moines Railway Company, the Mississippi Valley and Western Railway Company (now St. Louis, Keokuk, and North-western Railway Company) , the Toledo, Peoria, & Warsaw Railway Company, and the Toledo, Wabash, and Western Railway Company. ”

“ Plat of Keokuk, in the county of Lee, Territory of Iowa, upon the half-breed tract, the outlines of which were designated and marked by Jenefer T. Spring in his survey as town reservation, . . . Water Street is of unequal and irregular width at the points where the dotted lines pass across the same. ”

“ Warren v. Grand Haven, 30 Mich. 28; Chicago, Rock Island, & Pacific Railroad Co. v. City of Joliet, 2 West. Jurist, 667.
MR. JUSTICE BRADLEY, after stating the case, delivered the opinion of the court.
We agree with the court below that the dedication of the streets of Keokuk was a dedication at common law, and not under the statute; and that, in making this dedication, the original proprietors of the tract reserved the title to the soil in the street, particularly in Water Street; and that this title went with the several lots fronting on the street, and extended to the Mississippi River. ”

“ Altogether there are ten railroad tracks between the front of said lots and high-water mark.
'3. By the building known as the Keokuk Northern Line Packet depot, . . . a permanent and substantial building, one hundred feet long and fifty feet wide, formed of substantial timbers, and about fourteen or fifteen feet high. ”

“ And new States have the same right of sovereignty and jurisdiction over the navigable waters within their limits as the original ones. Martin v. Waddle, 16 Pet. 367; Goodtitle v. Kibbe, 9 How. 471; Pollard's Lessee v. ”