People ex rel. City of Denver v. Union P. Ry. Co.

• Decision Date: 18 June 1894
• Citation: 20 Colo. 186,37 P. 610
• Parties: PEOPLE ex rel. CITY OF DENVER v. UNION PAC. RY. CO. SAME v. UNION PAC., D. & G. RY. CO. SAME v. BURLINGTON & C. RY. CO. SAME v. DENVER & R. G. RY. CO.
• Court: Colorado Supreme Court

37 P. 610

20 Colo. 186

PEOPLE ex rel. CITY OF DENVER v. UNION PAC. RY. CO.

SAME v. UNION PAC., D. & G. RY. CO.

SAME v. BURLINGTON & C. RY. CO.

SAME v. DENVER & R. G. RY. CO. ^[1]

Supreme Court of Colorado

June 18, 1894

Error to district court, Arapahoe county.

Petitions for writs of mandamus by the people of the state of Colorado on the relation of the city of Denver, against the Union Pacific, Denver & Gulf Railway Company, the Union Pacific Railway Company, the Burlington & Colorado Railway Company and the Denver & Rio Grande Railway Company. The proceedings were dismissed, and petitioner brings error. Reversed.

Mandamus to compel certain railroad corporations to construct a viaduct over their tracks on Nineteenth street, in the city of Denver. In the district court the proceedings were dismissed for insufficiency of the petitions. Petitioner brings error. Concurrent actions were brought by the city against each railroad company having tracks intersecting or extending along Nineteenth street, in the city of Denver. The facts are identical in each case, and in this court the actions were consolidated, under No. 2,884, for the purpose of argument and determination. The actions were all brought to enforce the provisions of the following ordinance of the city of Denver:

'Section 1. Whereas, the construction and operation of a great number of railroad tracks that intersect and extend along Nineteenth street, in the city of Denver, has and does impede travel upon said street to a great extent, and has made the said Nineteenth street dangerous for public travel thereon as a highway:

'Sec 2. Therefore all railroad companies the tracks of which intersect or extend along Nineteenth street, in the city of Denver, are hereby required to construct at their own expense a good and sufficient viaduct, of the width of fifty feet, over and across their said tracks, at a height of twenty-two feet in the clear above such tracks. Where the distance between any two of said railroad tracks is not sufficient to permit an approach to the viaduct over each track from the ground, to be made at a grade of not to exceed seven per cent., then the railroad company owning each of such tracks shall build such viaduct at said height to a point midway between said tracks, and in such manner as to make the same one continuous viaduct over such tracks. They are also hereby required to construct, at their own expense, good and sufficient approaches to such viaduct or viaducts, at a grade of not to exceed seven per cent.; and such railroad companies, their successors and assigns, shall thereafter, at their own expense, keep and maintain said viaduct or viaducts and the approaches thereto in a good state of repair. Said viaduct or viaducts to be constructed entirely of iron or steel crossbeams and supports set on substantial stone foundations; the longitudinal joists between such crossbeams to be of iron, steel, or wood, and the floor to be of wood. Such viaduct or viaducts, and the approaches thereto, shall be set in said Nineteenth street so as to leave an equal distance of said street unoccupied on each side of the same. The said viaduct or viaducts to be constructed with a roadway thirty-eight feet in width for vehicles, and with sideways six feet in width upon each side of such roadway for foot passengers. The said approaches shall be constructed of good and substantial stone abutments and stone and earth approaches, or said approaches may be constructed of the same material as the said viaduct, or partly of each. The width of said approaches to be thirty-eight feet in the clear from the street until the same reaches a height of at least twelve feet above the street, and for that distance the approaches shall be used only as a roadway, and from that point until they meet the viaduct the approaches shall be of the same width as the viaduct, with the roadway and sideways to conform thereto. At the point on said approaches where the sideways begin, there shall be constructed stairways of iron or wood leading to the sidewalk below on Nineteenth street. Said viaduct or viaducts and approaches on the outside thereof shall have good and substantial iron or steel railings.

'Sec. 3. The work of constructing said viaduct or viaducts and approaches thereto shall be commenced in good faith within sixty days after the passage of this ordinance, and shall be actively continued thereafter until said viaduct or viaducts be completed and ready for travel, which shall not be later than six months after the passage of the said ordinance.

'Sec. 4. Upon the completion of such viaduct or viaducts and approaches, the railroad companies whose tracks run under the same shall not be required to keep either flagman or gateman at the crossings of their tracks with said Nineteenth street.

'Sec. 5. Upon the completion of such viaduct or viaducts, any of the railroad companies aiding in the construction of such viaduct or viaducts shall have the privilege of constructing across said Nineteenth street, under said viaduct or viaducts, such new railroad tracks as may be necessary, without any special permission of the city council first had and obtained.'

Authority to pass the foregoing ordinance is claimed under the following provisions of the charter of the city of Denver, to be found on page 127 of the Acts of 1889:

'The city council shall have power by ordinance: * * * Sec. 46. To regulate the use of locomotive engines, to direct and control the location of cable and other railroad tracks, and to require railroad companies to construct, at their own expense, such bridges and their approaches, tunnels, or other conveniences at public crossings, and such viaducts and their approaches over their tracks, where the same cross or extend along public highways or streets, and to put such streets in such condition and state of repair, as not to interfere with the free and proper use of such street or crossing, as the city council may deem necessary, and, where viaduct or viaducts cross the tracks of several railroad companies, to compel them to build their proportion of a continuous viaduct or viaducts over said tracks with their approaches, and to regulate the rates of speed of all railroad trains within the city limits, and their stops at street crossings.'

J. F. Shafroth, F. A. Williams, and A. B. Seaman, for plaintiff in error.

Teller & Orahood and Walcott & Vaile, for defendants in error.

HAYT, C.J. (after stating the facts).

The duty of railroad and other companies crossing highways to relieve the danger and inconvenience of such crossings has been long recognized under the common law. In State v. St Paul, M. & M. Ry. Co., 35 Minn. 131, 28 N.W. 3, this rule is stated as follows: '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...