State v. Missouri Pac. Ry. Co.

• Decision Date: 06 February 1885
• Citation: 33 Kan. 176,5 P. 772
• Parties: THE STATE OF KANSAS v. THE MISSOURI PACIFIC RAIL-WAY COMPANY, et al
• Court: Kansas Supreme Court

5 P. 772

33 Kan. 176

THE STATE OF KANSAS v. THE MISSOURI PACIFIC RAIL-WAY COMPANY, et al

Supreme Court of Kansas

February 6, 1885

Error from Atchison District Court.

ACTION of mandamus. The alternative writ, after alleging that the respective railroad companies are railroad corporations, and that the city of Atchison is a municipal corporation, and a city of the first class, then alleges as follows:

"And [the railroad companies] having the right-of-way and privilege to lay down their tracks over certain streets and alleys in the said city of Atchison, and to run and operate their cars, engines and trains over the same, and over and along an alley between Main street and Utah avenue in said city, and crossing Sixth street between said Utah avenue and Main street, and now and then have a large number of tracks and side-tracks running over and along said right-of-way and across said Main street, at said point, over which cars engines and trains were and are continuously passing at all hours of day and night, said tracks and rights-of-way of said various railroad companies adjoining and running parallel with each other, and said streets so named being regularly laid out and dedicated streets of said city, and regularly opened and used for public travel, and running through and intersecting the populous portions of said city; that in the year 1882, it became and was necessary to regulate the crossings of said railways over said streets, and to regulate and provide cautions and prescribe rules and regulations to prevent accidents at crossings and on the tracks of said railways, and to require said railway companies to erect a viaduct over their said railroad tracks by such railroad companies, and it appearing that the public necessity and convenience required that the said Sixth street should be covered by a viaduct or bridge over said Sixth street, used and occupied by said railroad companies, with suitable, safe and convenient methods of approach to the same, with sufficient sidewalks on either side of the same, and the public safety and convenience of the public required the construction and erection of said viaduct, it was thereupon ordered by the mayor and councilmen of said city that the same be constructed, by resolution of the mayor and councilmen duly passed on the 29th day of December, 1882, of which said resolution and order the said railroad companies had due notice, but neglected and refused to erect or construct the said viaduct, or approaches thereto, and still refused so to do; that on or about the 20th day of August 1883, the said necessity for said viaduct still existing as above set forth, the mayor and councilmen of said city, on the 20th day of August, 1883, duly passed an ordinance setting forth the necessities of said bridge and viaduct, and requiring the construction thereof by said railroad companies over their tracks, rights-of-way across said street, to be commenced within ten days thereafter, which said ordinance was duly approved and published, and a copy thereof, duly certified by the clerk of said city, was duly served upon said respective railroad companies in said city, county and state, upon the 25th day of August, 1883, and that said ordinance was in due form of law, and the said railroad companies were duly notified and required according to law to construct and maintain said viaduct; that said railroad companies, though said necessities for said bridges and viaduct still exist, and the same are necessary for the safety and convenience of the public in the use of said street, and they have been duly required and notified to build and maintain the same, refuse and neglect to construct the same, or any portion thereof, or to take any steps, measures, or means for the commencement of said work of constructing said viaduct, and that without said viaduct said street at said crossing is unsafe for public travel and public use, by reason of said railroad tracks crossing the same, and by reason of the running and operation of cars, engines and trains over and across the same; that there is no plain or adequate remedy at law, by which said railroad companies can be compelled to comply with the law, or the duty imposed upon them in the construction and maintenance of said viaduct, and plaintiff is without remedy in this case, except by the authority of this court, by a writ of mandamus."

So much of the foregoing ordinance as is necessary to be quoted, reads as follows:

"SECTION 1. That it is necessary, to prevent accidents, and for the public convenience it requires, and the safety of the public demands, that a viaduct be constructed over the railway tracks crossing Sixth street, between Utah avenue and Main street, in the city of Atchison, and that it is necessary to have such viaduct constructed and said railway tracks and street bridged over, in order to render said street safe and convenient for the travel of the public, and to restore it to as safe a condition as before said railway tracks crossed the same, and that said crossing in its present state is unsafe and inconvenient for public travel.

"SEC. 2. That the Atchison, Topeka & Santa Fe railroad company, the Missouri Pacific railway company, the Central Branch Union Pacific railroad company, and all other companies owning a right-of-way and operating a railway over and through a right-of-way across said Sixth street, between Utah avenue and Main street, shall erect, construct and maintain over said railway tracks and road-beds of said companies, along said Sixth street, and over the entire width thereof, a suitable and proper viaduct or bridge, substantially constructed and safe, with sufficient walls on each side of the roadway of the same, with suitable and necessary approaches thereto, at a reasonable and proper grade, and inclined so as to permit the same to be conveniently used as a street, and for public travel by footmen and vehicles, and at such height as to permit engines and trains to pass under the same without unnecessary danger to said structure.

"SEC. 3. That the city marshal of said city forthwith serve a copy of this ordinance, duly certified by the city clerk, upon each of the above-named railroad companies, and such other railroad companies, if any, as he may find having rights-ofway along and over said Sixth street, between Utah avenue and Main street, and that he file in the office of the city clerk an affidavit showing the manner and date and service of a copy of this ordinance; and that the same shall be notice to said railroad companies to commence the erection and construction of said viaduct; and that said railroad companies shall thereupon, within ten days after the service of such notice, duly made upon them, commence the erection and construction of said viaduct in good faith; and that the same shall be completed within six months from the date thereof, and in suitable condition for public travel."

The defendants filed separate answers, the substance of which is set forth in the opinion of the court. To each answer the plaintiff filed a motion to strike out and quash the same, and also filed a separate demurrer to each answer, on the ground that it did not state facts sufficient to constitute any defense to the plaintiff's alternative writ. At the November Term, 1883, the court overruled all these motions and demurrers. The plaintiff brings these rulings here for review. The opinion of the court states all the other necessary facts.

Judgment affirmed.

John C. Tomlinson, for plaintiff in error.

James Hagerman, A. A. Hurd, Mills & Wells, and Geo. W. McCrary, general counsel, for the Atchison, Topeka & Santa Fe railroad company, defendant in error.

Everest & Waggener, for the Missouri Pacific railway company and the Central Branch Union Pacific railroad company, defendants in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action of mandamus, brought October 6, 1883, in the district court of Atchison county, by the county attorney, in the name of the state of Kansas, against the Missouri Pacific railway company, the Central Branch Union Pacific railroad company, and the Atchison, Topeka & Santa Fe railroad company, to compel the defendants jointly to construct a viaduct over the defendants' railroad tracks where the same cross Sixth street, in the city of Atchison, Kansas. An alternative writ of mandamus was issued in the case and served upon each of the defendants, and each filed a separate answer to the alternative writ. The plaintiff then filed a separate motion to each answer to strike out and quash the same, and also filed a separate demurrer to each answer, setting forth as a ground for such demurrer, that the answer did not state facts sufficient to constitute any defense to the plaintiff's alternative writ. The court below overruled all these motions and demurrers, and the plaintiff excepted, and now brings the case to this court for review.

The alternative writ, after alleging in substance that the respective railroad companies are railroad corporations, and that the city of Atchison is a municipal corporation and a city of the first class, and after alleging that the defendant railroad companies had the right-of-way and privilege to lay down their tracks across said Sixth street and to operate their trains over them, and that they did so lay down their tracks, and did so operate their trains over them, then alleges in substance that the public safety and convenience require that a viaduct be constructed over said tracks where the same cross Sixth street, and that proper approaches to said viaduct, and sidewalks, should also be constructed; and further alleges, that the city of Atchison, by an ordinance duly passed on August 20, 1883, ordered...