"This is an action by the plaintiff railroad company against the city of Richmond, in which it claims the right to recover from the city one-half "of the total cost of bridge building and construction work done in connection with the street crossings of its James River Division Line, locally known as the Pelt Line. The total amount, one-half of which it is claimed that the city should pay, results from the depression of the tracks of the railroad from Acca to Cary street and from the building of the bridges across the railroad tracks at the crossings at Broad street, Monument avenue, Patterson avenue, and Grove avenue.
"In the year 1914 the city, by the extension of its corporate limits westwardly, brought within the limits of the city the entire line of railroad between the streets mentioned; the city limits having in fact been extended some distance beyond the entire line of railroad from Acca to the river. At that time—that is, when this railroad line was brought within the city —there was a track depression at Broad street and the street crossed the railroad tracks by a bridge 30 feet wide. The crossings at Grove avenue and Patterson avenue were grade crossings. Monument avenue had not been then extended westwardly as far as the railroad line.
"As the city grew westwardly, it became manifest to both the railroad and the city authorities that it was to the interest of both and for the benefit of the public that these grade crossings should be abolished, and that a proper bridge should be erected at the Broad street crossing, so that the bridge there should be as wide as the street, which at that point was 60 feet, whereas the bridge then there was only 30 feet wide, and that provision should be made for Monument avenue which the city contemplated to extend, so that it would at an early date cross the railroad line.
"Negotiations between the city authorities and the railroad resulted in the passage of an ordinance approved on the 11th day of May
1916, which contains the form of a deed to be executed by the railroad and by the mayor on behalf of the city. Under the terms of this deed the railroad company agreed to dedicate to the city the easement and right of way across the Belt Line for Monument avenue, and further agreed to depress its tracks according to a plan known as the Hankins Revised Plan, which met with the approval of both parties, and to construct overhead bridges for Broad street and Monument, Patterson, and Grove avenues.
"This deed contains various stipulations. The last clause in the deed, which is the part of it most material to this litigation, is as follows:
"'(4) That the work required to be done by the said company shall be by the company let to contract upon competitive bids from responsible bidders, who will be required to give bond and security for the faithful performance of the contract, and the said company will pay all the expense incident to the doing of the said work, but it is expressly understood that the said company reserves the right to institute legal proceedings against the city of Richmond when said work shall have been completed and said expense paid, to recover one-half of the said costs of said improvement, and in asserting this claim the rights of the city and of the company shall be the same as if this crossing had been made by proper legal proceedings without any agreement between the parties, but in such proceedings it shall not be maintained as the basis or reason for such recovery that such crossing at Monument avenue is an "existing crossing" at the time of the making of this deed, or at the time of the institution of such proceedings; and in case it should be established in said proceedings that the city is liable for any part of the expense of the work to be done by the company, as hereinbefore provided, the company will accept in settlement the notes of the city for the amount so due by it, payable in one and two years from the date at which the portion of the expense to be paid by the city becomes due and payable, with interest at the rate at which the city can borrow money from the banks at the time of the execution of the notes.'
"The deed was executed by the city and the railroad on May 26, 1916, and subsequently this action was instituted under the language of the agreement or deed above quoted whereby the railroad asserted against the city the right to reimbursement for one-half of the total amount expended in all the work embraced within the agreement.
"It will be seen from the language of the clause of the agreement above quoted that it was expressly stipulated that the railroad company reserved the right to institute legal proceedings against the city when the work was completed and all expenses paid to recover one-half of the cost of the improvement. The evidence shows that there was a dispute between the representatives of the railroad company and the representatives of the city as to the liability of the city for any part of the expense of this work. The railroad company asserted that one-half of the total amount to be expended should be paid by the city, whilethe city was advised that it was not liable for the total amount or any part of it.
"I take it to be manifest that the parties, after various negotiations, having come to an agreement concerning the construction of this work, the liability of the city, the right to assert which the railroad company reserved, would result only from the statutory enactment making it liable. At that time it was possible that the railroad company could have been compelled to pay the entire amount, but only upon an application by the city, or some of its citizens, to the state corporation commission, based upon the ground of great danger to the public from the existing crossings. In such a case the corporation commission would have power to direct the railroad company to make the proper improvements, certainly as to a county road and possibly as to a city street. It is evident that such proceedings were not contemplated and were not in the minds of the parties when the agreement speaks of proper legal proceedings.
"The statutory law relative to the crossings at the intersection of public highways and the railroads was contained in clauses 38 and 39 of chapter 4 of the Act Concerning Public Service Corporations, approved January 13, 1904, and carried in Pollard's Code of Virginia 1904, as clauses 38 and 39 of section 1294d. The dealings between the railroad and the city leading up to the enactment of the above-mentioned ordinance and the execution of the deed in May. 1910, show that they differed as to the proper interpretation of this statute, and as to its application to the work to be undertaken.
"The above-mentioned clauses 38 and 39 are as follows:
" 'Crossings of One Railroad hy Another, or Other Highway; Section not to Apply to Cities and Towns or to Electric Railways.
"'(38) It is hereby declared to be the policy of this state that all crossings of one railroad by another, or of a county road or highway by a railroad, or of a railroad by a county road or highway, shall, wherever reasonably practicable, pass above or below the existing structure. And every railroad hereafter constructed across another railroad or across a county road or highway, and every county road or highway hereafter constructed across a railroad, shall, wherever it is reasonably practicable, and does not involve an unreasonable expense, all the circumstances of the case considered, pass above or beneath the existing structure at a sufficient elevation or depression, as the case may be, with easy grades, so as to admit of safe and speedy travel over each. The provisions of this section shall not apply to crossings in cities or towns, nor to electric railways within or without cities and towns.
" 'Respective Duties as to Crossings.
"'(39) At every existing crossing, such as is mentioned in the preceding section, the grade of the work last constructed, to the full width of the road crossing, shall be made sufficiently smooth and level to admit of safe and speedy travel over such crossing. When such improvement is to be made in a railroad it shall be made by the corporation, company, or person operating the same. When it is to be made in a county road, street, or other highway, it shall be made by the corporation whose
track is to be crossed, and the expense shall be borne equally by said corporation and by county, city, or town having control of such county road, street, or other highway. When the crossing is at an elevation the approaches and structures shall be safe, permanent, and substantial, and when the crossing is underneath the road to be crossed, the road, street, or highway and all necessary drains and ditches shall be put in good, permanent condition, and the structure supporting the road shall be safe, substantial, and permanent. Whenever the character of the work to be done on the structures, roads, streets, or highways, drains and ditches cannot be agreed to by the corporation and the county, city, or town bearing the expense of the crossing, the same shall be fixed and determined by the state corporation commission. After said...
