Parker v. Truesdale

• Decision Date: 21 July 1893
• Citation: 55 N.W. 901,54 Minn. 241
• Parties: PARKER v TRUESDALE.
• Court: Minnesota Supreme Court

54 Minn. 241

55 N.W. 901

PARKERvTRUESDALE.

Supreme Court of Minnesota.

July 21, 1893.

(Syllabus by the Court.)

In enforcing against a railway company the duty imposed by its charter, to construct, when necessary, on a street or highway crossing its tracks, a bridge or viaduct, with the approaches, the court has power to establish the grade therefor, though that involves a change in the grade previously established for the street or highway. Mitchell, J., dissenting. State v. Minneapolis & St. L. Ry. Co., 39 N. W. Rep. 153,39 Minn. 219, and Robinson v. Railway Co., 51 N. W. Rep. 384,48 Minn. 445, followed.

Appeal from district court, Hennepin county; Lochren, Judge.

Action by William W. Parker against William H. Truesdale, as receiver of the Minneapolis & St. Louis Railway Company, to compel defendant to restore a street crossed by the railway to its former state. Judgment, from which plaintiff appeals. Affirmed.

A. M. Harrison, for appellant.

Albert E. Clarke and Wilbur F. Booth, for respondent.

GILFILLAN, C. J.

It is obvious that if the cut on the northerly part of Third avenue north, in front of plaintiff's premises, was in accordance with the lawfully-established grade, whether the work of cutting down to such grade was done by the city, or by some other person by its authority, or upon its requirement, no liability accrued to plaintiff by reason thereof; and under the charter of the city of Minneapolis it makes no difference with this proposition that the grade on which the cut was made was a change from one previously established. Henderson v. City of Minneapolis, 32 Minn. 319,20 N. W. Rep. 322. So the only questions in the case are, was the cut made upon a legally-established grade? and was it made by authority of the city? That the grade for the cut was lower than the grade as first established, and covered or included only a part of the width of the street, leaving the other part on, or perhaps raised above, the grade, as first established, does not make it illegal, for the authority which may establish the grade for a street may, under peculiar circumstances, adopt one plane for a part of the width of the street, and a higher or lower plane for the other part, requiring a retaining wall to sustain the part on the higher plane. Yanish v. City of St. Paul, (Minn.) 52 N. W. Rep. 925. The charter of the city of Minneapolis (chapter 8, § 2) authorizes the common council to establish grades, and, by a vote of two-thirds, to change the grade of any street after such grade has been established. So far as appears in this case, the council never, by ordinance or resolution passed by a two-third vote, made any change in the grade of Third avenue north, as it had been previously established; and if the sole power to change an established grade rests in the common council, the cut, which was below the grade as established, and not changed by the council, was, as between the abutting property owners and the person making it, unauthorized and wrongful. And this brings us to the question whether, in such proceedings as were proved in this case, which proceedings have been several times, directly or indirectly, before this court, the court has the power, equally with the council acting under the charter, to change established grades, when deemed necessary. If it has, then this action in changing grades has the same effect, and precisely the same consequences, as the action of the council making a change under the provisions of the charter. It is no answer to this...