98 Iowa 373 | Iowa | 1896
-I. This case was determined in the court below upon the theory that the city was not liable for the acts of the street railway company which are complained of. While several questions are argued, the real question is as to the liability of the city. If we shall reach the conclusion that it is not .liable, it will not be necessary to consider the other questions discussed by counsel. It is to be remembered that the city never in fact changed the surface of the street in front of plaintiffs’ premises so as to make it conform to the ordinance of 1886; indeed it never took any steps to enforce the provisions of that' ordinance. As the city had made no attempt to change the physical surface of the street, and make it conform to the grade established in 1886, the plaintiff is in no situation to complain unless the acts of the railway company are to be treated as the acts of the city. Preston v. City of Cedar Rapids, 95 Iowa, 71 (63 N. W. Rep. 580). The real question is, does the ordinance granting the right to the street railway company to enter upon streets and lay its tracks require the company to lay its track in conformity to the 1886 grade ? We discover nothing in the ordinance