State v. Chi., B. & Q. R. Co.

• Decision Date: 29 April 1890
• Citation: 29 Neb. 412,45 N.W. 469
• Parties: STATE v. CHICAGO, B. & Q. R. CO.
• Court: Nebraska Supreme Court

29 Neb. 412

45 N.W. 469

STATE

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Nebraska.

April 29, 1890.

Syllabus by the Court.

1. The act of March 31, 1887, requiring railroad corporations to construct and keep in repair suitable crossings where railroads cross public highways, is constitutional.

2. Under that act it is the duty of a railroad company to make and keep in repair suitable crossings, with approaches, notwithstanding the highway was laid out after the railroad was built. The public authorities are required to build that part of the highway within the right of way which they would have been required to make had the railroad not been constructed.

3. The board of transportation has jurisdiction to hear complaints and make orders in regard to the construction and repair of such crossings. Its order in that regard may be enforced by mandamus.

Original application for mandamus.R. D. Stearns, William Leese, Atty. Gen., and O. P. Mason, for relator.

T. M. Marquett, for respondent.

NORVAL, J.

This is an original application for mandamus to compel the respondent to construct a crossing where its road crosses public highway No. 1,119 of Lancaster county. The petition contains two counts. The first alleges “that the relator, the plaintiff, is the county of Lancaster, duly organized under the laws of the state of Nebraska. The defendant, the Chicago, Burlington & Quincy Railroad Company, commonly known as the ‘Burington & Missouri Railroad Company in Nebraska,’ is a corporation duly organized under and by virtue of the laws of the state of Nebraska, and is authorized to do business, and is doing business, in this state, as a railroad company and a common carrier. That said railroad company is the present owner and operator of the Chicago, Burlington & Quincy Railroad, and that said road crosses a public highway in the county of Lancaster and state of Nebraska, known as road No. 1,119, said public highway being laid out as a short connection between two duly laid out and traveled public highways, and as being on a section line, and that the Chiago, Burlington & Quincy Railroad track crosses said public highway along said section line between the north-east quarter of section No. 34 and the south-east quarter of section No. 27, town 10, range 6, in Lancaster county, Nebraska, and is in road-district No. 2, Garfield precinct, in said county, and that said crossing is near the center of said quarter sections 34 and 27 aforesaid. That on or about the 17th day of September, 1888, the Chicago, Burlington & Quincy Railroad Company was duly notified, as the owner and operator of the Chicago, Burlington & Quincy road as aforesaid, by one A. M. Trimble, then and now the supervisor of said district No. 2, aforesaid, to construct, make, and put in said crossing within its right of way, and over and across its said right of way, said highway No. 1,119 being in said road-district No. 2, as aforesaid, and being under the supervision and charge aforesaid of said supervisors. A copy of said notice is hereto attached and marked ‘Exhibit A,’ and made a part hereof. The plaintiff further alleges that said Chicago, Burlington & Quincy Railroad Company has not made a crossing of any kind at the point hereinbefore described, where the said Chicago, Burlington & Quincy Railroad crosses said public road or highway No. 1,119. That no grading, ditching, bridging, or other work of any kind has been done within the right of way of said railroad company, as required by law. That said road No. 1,119 is wholly useless to the public as a highway, for the purposes of travel, because of the refusal and neglect of said Chicago, Burlington & Quincy Railroad Company to comply with the requirements of the law, and said notice served upon it as aforesaid by said road overseer, A. M. Trimble. That road No. 1,119 is a connection between the A-Street highway, which has been a public highway since October 4, 1887, and road No. 433, which was duly laid out as a public highway in the month of July, A. D. 1871, and has been traveled and used as a highway ever since. That road No. 1,119, connecting the above-described highways as aforesaid, is only one-half mile long, and is upon the section line between sections 34 and 27, and is much needed by a large commercial and busy community, who have no good road facilities for gettingin and out of Lincoln, without great inconvenience, delay, and expense. A large and costly bridge has been constructed by the county commissioners of Lancaster county across Salt creek, and other bridges across branches of said stream have also been constructed near the point, and on the highway leading to the crossing of the said defendant's railroad, which said bridges are wholly useless, and the work done wholly useless, unless said railroad crossing be put in as requested.” The second count of the petition alleges that the relator, on November 15, 1889, filed a complaint, before the state board of transportation of the state of Nebraska, against the respondent, containing the same allegations as the first count of the petition above set forth. That the defendant filed its answer to said complaint with the board of transportation. A trial was had before said board upon the issues joined, and findings were made against the company, and it was ordered to put in the crossing, where said highway crosses its road, within 60 days after the service of the order upon the respondent, and that the order of the board of transportation was served on July 26, 1889, upon G. W. Holdrege, the general manager of the company.

The respondent demurs to the petition in this cause, and assigns the following grounds of demurrer: (1) That this court has no jurisdiction of the subject-matter of the action. (2) That said board of transportation had no jurisdiction to make the findings, and this court has no jurisdiction to enforce the findings of that body in a suit of this kind. (3) That the petition does not state facts sufficient to constitute a cause of action in favor of the relator, and against this respondent.

The respondent claims that, as the highway was laid out after the construction of the railroad, it is not the duty of the company to put in the crossing. In other words, a railroad company is only required to construct highway crossings at places where public roads were established prior to the building of...