The opinion of the court was delivered by
Valentine, J.:
*5641. Fee of streets incount™for use of the public. *5652. cities as control over publicana grounds. *563The defendant in error, Joshua Garside, sued the Atchison & Nebraska Railroad Company for constructing and operating its railroad over, along and across a certain piece of ground in the city of Atchison known as the “Levee,” or Levee street, and alleged by him to be a “public highway.” The railroad' company demurred to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action, and also moved the court to strike *564out a portion of said petition on the ground that it was irrelevant and redundant. The court overruled both the demurrer and the motion, and then the defendant, the railroad'company, answered. The answer contained two defenses. The plaintiff then demurred to the second defense on the ground that it did not state facts sufficient to constitute a defense to the plaintiff’s action. The court sustained the demurrer, and it is this decision that is complained of here. The defendant below alleged in its second defense among other things that the said levee was dedicated as a levee to the public by the proprietors of the city of Atchison by filing in the register’s office their map and plat of said city, showing the streets and grounds reserved for public purposes, properly executed and acknowledged, as provided by law; that the railroad company obtained the right to construct and operate its road over said levee from the city of Atchison; that it did "so construct and operate its road in a careful and proper manner; that it did not obstruct the said levee," but left* a sufficient space for passage and travel; that it conformed the grade of the railroad to that of the levee, etc. And the company does not anywhere seem to admit that the levee is a street or highway. The court below probably ruled correctly upon the demurrer to the petition, and the motion, but certainly incorrectly and erroneously upon the demurrer to the second defense stated in the answer. In this state'the fee of all real estate when dedicated to public use by the pro-J r . pnetors of any town or city vests absolutely m the county wherein such real estate lies, and the county forever afterwards holds the property in trust for such use: (Laws 1855, page 735, §6; Laws of 1859, page 81, §6; Comp. Laws of 1862, 120, § 6; Gen. Stat., 619, ch. 78, § 6; Comm’rs of Franklin Co. v. Lathrop, 9 Kas., 453.) -The county however, being only a political subdivision of the state, a mere agent of the public, and at most only a quasi corporation, is so far under the control of the legislature as to be subject to all the laws which the legislature may pass for the government of property held by the county *565in trust for the public use. Therefore, while the fee of such property may be vested in the county, the control thereof may be placed somewhere else. Such in fact is the case in this state. While the fee of all streets and other public grounds situated in a city is in the county, as we have already seen, yet the control of such property is almost entirely and absolutely in the city: Gen. Stat., 160 to 165, ch. 19, §30, subdivisions 2, 25, 36; Laws of 1871, page 144, ch. 62, §§16, 37, 47; Laws of 1872, ch. 100, §§32, 54, 64. The county holds the property as a mere agent of, the public, and in trust for the public use. But the city has the control over it as another agent of the public. The city has power “to provide for and regulate the pas-ii -, it sage of railways through the streets and public grounds of the city;” (Gen. Stat., ch. 19, §30, subdiv. 25; Laws of 1871, ch. 62, § 47; Laws of 1872, ch. 100, § 64;) and the city of Atchison has exercised such power in the present case. In this case the city of Atchison has given complete and ample power for the time being to the railroad company to construct and operate its road over said levee, and that is all that is necessary. As to what the extent of that power is, it is not necessary to be determined in this case. So far as this case is concerned it makes no difference whether the right of the railroad company to the land over which its road is located is an interest in fee, or only an easement, or merely a license or privilege for the time being from said city.
3' building auk roadaov!rraü' lie grounds, There is another question: Is the plaintiff below, under the circumstances of this case, entitled to recover damages of any kind? Judge Dillon in his work on Municipal Corporations uses the following language:
“Sec. 555. It has often been decided and is settled that the legislature has the power to authorize the building of a railroad on a street or highway, and may directly exercise this power or devolve it upon the local municipal authorities.
“Sec. 556. If thefee in the streets or highways is in the public, or in the municipality in trust for public use, and is not in the abutter, the doctrine seems to be settled that the *566legislature may authorize them to be used by a railroad company in the construction of its road without compensation to adjoining owners, or to the municipality, and without the consent and even against the wishes of either.
“Sec. 557. But where the public have only an easement in the street or highway it has been generally but not always held that against the proprietor of the soil the use of the street or highway for the purposes of a steam railroad is an additional burden, which, under the constitution of the different states, cannot be imposed by the legislature without compensation to such proprietor for the new servitude.”
4. men railway „ ÍHeanynot *5685. when miiroaa uSe™yis *566And to the same point see also Cooley’s Constitutional Limitations, 552, 553, and the cases there cited; also, brief for plaintiff in error in this case, and authorities there cited. The damages that the plaintiff claims in this action may be divided into three kinds. First, damages as compensation for the use of th,e ground over which the railroad is located, or for the additional burden imposed thereon by the railroad company, the plaintiff, as abutting proprietor, claiming to be the owner of the fee in such ground. Second, consequential damages arising from noise, smoke, offensive vapors, sparks, fires, shaking of the ground, and other inconvenience and annoyances arising from the construction and operation of the railroad where the same is constructed and operated in a legal and proper manner. Third, damages for illegal blocking up and obstructing said levee, and for other acts done illegally, or in an improper manner. The plaintiff cannot of course recover for the first kind of damages, for he does not own the fee in any part of the levee where the railroad is located; and the railroad company has under the authority of the city an undoubted legal right 'to construct and operate its road on said levee if it does so in a legal and proper manner. Neither can the plaintiff recover for the second kind of damages. And this is so, for the same reasons that he cannot recover for the first kind of damages, and for the additional reason that such damages are too remote. They are the consequential results of the exercise of a lawful business, and however annoying or injurious they may be to the plain*567tiff they form no foundation for a cause of action. They are in fact damnum absque injuria. In Ohio, where a railroad company under authority of a city constructs and operates a railroad along a street near the plaintiff’s lot and dwelling-house, and “runs steam engines, locomotives and cars along such street and railroad, thereby making noises and shaking, disjointing, and disturbing such dwelling-house, and where such company under the authority aforesaid, and for the purpose of propelling such engines, locomotives, and cars, keeps dangerous fires, thereby generating noxious vapor, smoke, and filth near to and diffusing the same in and about such lot and dwelling-house so as to render the air unwholesome, and to discommode the occupants and owners of such lot and dwelling-house,” it is held “that in respect to the noise, smoke, or other discomforts arising from the ordinary use of the railroad by the company, the plaintiff has no more right to recover than any citizen who resides or may have occasion to pass so near the street as to be subject to like discomforts.” Parrott v. C. H. & D. Rld. Co., 10 Ohio St., 624, 630. In Missouri it has been held that any damage resulting to property abutting on a street from the ordinary use of a railroad on the street is damnum absque injwia. Porter v. North Mo. Rld. Co., 33 Mo., 128, 138. See also Lackland v. Rld. Co., 34 Mo., 259, 274; Moses v. P. Ft. W. & C. Railroad Co., 21 Ill., 516; Slatten v. Des Moines Valley Rld. Co., 29 Iowa, 148, 153. And indeed it must be true as a general rule, that the rightful and bona fide exercise of a lawful power or authority cannot afford a basis for an action. Therefore, in a case like the one at bar, where the railroad company has a legal right to construct and operate its road over certain grounds, we do not think that the company can by so doing be held liable for any damages of any kind where it constructs and operates its road in a legal and proper manner. It can be held liable only where it constructs or operates its road in an illegal, improper, or wrongful manner. The plaintiff may we think recover for the third kind of damages. But before he can do so he must *568show among other things that the levee is a street or highway, as he has alleged; that the railroad company wrongfully and unnecessarily blocked up and obstructed the said street or highway, and that the plaintiff received actual injury from such obstruction. And the injury must be special as to him, and not such as affects the public in general. Of course the railroad company can have no legal right to permanently block up a street. And it can have no legal right to temporarily block up or obstruct a street except where it necessarily does so in the lawful and proper use of its road. It can psss and repass with its engines and cars the same as individuals may with their vehicles, and for such passing and repassing it cannot of course be liable to any one; but it has no more right to obstruct the streets than any individual has, and it may make itself liable for obstructing a street the same as an individual may. The plaintiff’s petition when attacked by a demurrer or motion, such as was interposed in this case, is perhaps sufficient as stating a cause of action for this kind of damages, but for no other kind of damages. But if such petition were attacked by a motion to have it made moire definite and certain with regard to the said obstructions, and the special injuries supposed to have resulted therefrom, the petition would not be held sufficient as stating a cause of action for even this kind of damages.
The judgment of the court below must be reversed, and the cause remanded with the order that the demurrer to the second defense set forth in the answer be overruled, and for further proceedings.
All the Justices concurring.