City of Minneapolis v. St. Paul, M. & M. Ry. Co.

• Citation: 35 Minn. 131,28 N.W. 3
• Court: Minnesota Supreme Court
• Decision Date: 06 April 1886
• Parties: CITY OF MINNEAPOLIS v ST. PAUL, M. & M. RY. CO.

35 Minn. 131

28 N.W. 3

CITY OF MINNEAPOLISvST. PAUL, M. & M. RY. CO.

Supreme Court of Minnesota.

April 6, 1886.

Appeal from an order of the district court, Hennepin county, granting motion to respondent to quash and set aside alternative writ of mandamus.

GILFILLAN, C. J., dissents. Judson N. Cross, City Atty., and Frank H. Carleton, Asst. City Atty., for appellant, City of Minneapolis.

Benton & Roberts and R. B. Galusha, for respondent, St. Paul, M. & M. Ry. Co.

MITCHELL, J.

This appeal is from an order quashing an alternative writ of mandamus on the ground that the relator did not state facts sufficient to warrant the issuance of a writ. The charter of respondent provides that “the said company shall have the right and authority to construct their said railroad and branches upon and along, across, under, or over any public or private highway, road, street, plank-road, or railroad, if the same shall be necessary; but the said company shall put such highway, road, street, or railroad in such condition and state of repair as not to impair or interfere with its free and proper use.” Laws Ex. Sess. 1857, c. 1, subc. 1, § 7. The principal question raised by the appeal is the construction to be put upon this statute as to the extent of the rights conferred, and of the duty imposed upon, the company.

The common-law rule is that where a person or corporation is given the right to build a railroad, or make a canal, across a public highway, this gives them no right to destroy it as a thoroughfare, but they are bound to restore or unite the highway at their own expense, by some reasonably safe and convenient means of passage, although the statute contains no express provision to that effect. This duty includes the doing of whatever is necessary to be done to restore the highway to such condition; as, for instance, in case of a bridge, the approaches or lateral embankments, without which the bridge itself would be useless. This duty is founded upon the equitable principle that it was their act, done in pursuit of their own advantage, which rendered this work necessary, and therefore they, and not the public, should be burdened with its expense. Qui sentit commodum, sentire debit et onus. Rex v. Inhabitants of Lindsay, 14 East, 317; Rex v. Kerrison, 3 Maule & S. 526; Leopard v. Chesapeake & Ohio Canal Co., 1 Gill, 222; Northern Cent. R. R. v. Mayor of Baltimore, 46 Md. 425;Eyler v. Commissioners Allegany Co., 49 Md. 257; In re Trenton Water-power Co., 20 N. J. Law, 659; People v. Chicago & A. R. Co., 67 Ill. 118; Queen v. Inhabitants of Ely, 15 Ado1. & E. (N. S.) 828; Paducah, etc., R. Co. v. Com., 80 Ky. 147.

The provisions of this statute imposing a duty on the company in favor of the public, while it is to receive a reasonable construction, must be liberally construed in favor of the public. There is no presumption that the legislature intended to limit or lessen the duty which would have existed in the absence of any provision expressly imposing it. On the contrary, their evident object was to make the duty more explicit and definite, and free from doubt. The fact stands out prominent that the legislature intended to preserve to the public the free and proper use of highways and streets, without impairment or interference, and that the use of streets and highways by the railway company should be permitted only on condition that this right of the public should be preserved. Of course, this is not to be understood in the absolute sense that the company could do nothing that would in any degree interfere with the use of the street by the public. The statute must receive a reasonable construction, and the legislature must be presumed to have understood that the construction and operation of a railroad upon, across, under, or over a street is necessarily attended with some incidental inconvenience. What was meant was merely that the company should put the street in such condition as to furnish the public a thoroughfare reasonably safe and convenient, and substantially as capable of free and proper use as it was before. Whatever accomplishes this end is a performance of the duty; what does not is an infraction of it. Hence in view of the manifest object of this provision in favor of the public, it is evident that the expression, “in such condition and state of repair as not to impair or interfere with its free and proper use,” has reference, not merely to the physical condition of that particular part of the street actually occupied by the company with its tracks, but also to the street as a thoroughfare of public travel, and to the uses to which the company put the street in operating its road.

For example, suppose the company construct their railroad under the street which they carry over their road by a bridge. The bridge immediately over their tracks might itself be properly built, and yet, without the necessary approaches, would be inaccessible to the public. This would not be a performance of the duty imposed by the statute. So, again, if the company constructed their tracks on the surface of the street, they might plank or pave between the tracks so as to furnish a perfectly smooth surface for the passage of travel, and yet the tracks might be so numerous, and the passage of trains so constant, as to obstruct travel across the street as effectually as if a Chinese wall were built across it. This would not be putting the street in such a condition “as not to impair or interfere with its free and proper use,” within the meaning of the statute.

While the company has the right, accordingly as its necessities or conveniences may require, to construct its tracks either on the surface of the street, or over the street, or under it, yet this right is subject to the condition that it can be done so as not to impair or interfere with the free and proper use of the street. The right to lay their tracks on the surface of the street is sub modo; that is, by doing it so as not to impair or interfere with the use of the street. Whatever mode they adopt, they are bound to fulfill this condition, and if it can not be fulfilled by laying their tracks on the surface of the street, they must adopt some other plan. See Rex v. Kerrison, supra; Johnston v. Providence & S. R. Co., 10 R. I. 365;People v. Dutchess & C. R. Co., 58 N. Y. 152.

It is also clear, upon both reason and authority, that this duty is a continuing one. It is not fulfilled by simply putting the street, at the time the railroad is built, in such condition as not to impair or interfere with its free and proper use at that time, nor even by maintaining it in such condition as would have accomplished that end had the circumstances and conditions originally existing continued. The requirement of the statute has a wider scope than this, and has reference to all future exigencies. The legislature never intended to fix or limit the duty of the company by the necessities of the public at any one time, or under any particular state of circumstances. They intended to impose upon the company the duty, from time to time, of putting the street in such condition and state of repair as changed circumstances-such as the increased travel on the street, or increased traffic on the railroad-might render necessary to its free and proper use. A condition of the street or mode of crossing the railroad might be entirely adequate for the accommodation of the public under one condition of things, and entirely inadequate under another; and, consequently, a provision which at one juncture would be a discharge of this statutory duty, would at another amount to its violation. For example, a single track laid on the surface of a street, in a small town, where the traffic on the railroad and the travel on the street were limited, might not, and probably would not, seriously interfere with the use of the street, while numerous tracks, in constant use, thus laid upon a crowded thoroughfare of a populous city, might almost entirely deprive the public of the use of the street. In the latter case it would be a mere technical quibble for the railway company to say that it had performed its duty because it had put the surface of the street in proper condition, although by reason of constantly passing trains the public were as completely prevented from crossing it as if the street had been divided by an impassable gulf.

The duty prescribed is to keep, at all times and under all circumstances, the streets, at points where they are intercepted by the railroad, “in a...