State v. Northern P. Ry. Co.

• Decision Date: 13 December 1930
• Docket Number: 6735.
• Citation: 295 P. 257,88 Mont. 529
• Parties: STATE ex rel. CITY OF MILES CITY v. NORTHERN PAC. RY. CO. (YELLOWSTONE LUMBER CO. et al., Interveners).
• Court: Montana Supreme Court

295 P. 257

88 Mont. 529

STATE ex rel. CITY OF MILES CITY v. NORTHERN PAC. RY. CO. (YELLOWSTONE LUMBER CO. et al., Interveners).

No. 6735.

Supreme Court of Montana

December 13, 1930

Rehearing Denied Feb. 4, 1931.

Appeal from District Court, Custer County; John Hurly, Presiding Judge.

Action in mandamus by the State of Montana, on the relation of the City of Miles City, Montana, against the Northern Pacific Railway Company, in which the Yellowstone Lumber Company and another intervened. From the judgment, relator appeals.

Affirmed.

D. L O'Hern and P. F. Leonard, both of Miles City, for appellant.

Gunn Rasch & Hall, of Helena, and Loud & Leavitt, of Miles City for interveners and respondents.

ANGSTMAN J.

The city of Miles city commenced this action in mandamus to compel the Northern Pacific Railway Company to construct a subway under its tracks on Main street in Miles City, in obedience to the requirement of a city ordinance. Upon the filing of the complaint an alternative writ was issued. Over objection of the city, the Yellowstone Lumber Company and the Miles City Grain Company were permitted to file complaints in intervention, showing that they hold leases on lands situated on the railroad right of way adjacent to Main street, on which they have constructed buildings and are engaged in extensive business operations; that, if the subway is constructed, it will lower the grade of Main street in front of their property from 7.2 to 8.4 feet and to such an extent as to destroy the means of ingress and egress, and thus render the business sites valueless and destroy their business and property; that the city has not agreed upon, or fixed or determined by appraisement, the amount of damages that interveners will sustain because of the change of grade, and they ask that the alternative writ be quashed and the city enjoined from compelling the railway to change the grade until the damage to interveners has been determined and paid. After issue was joined by appropriate pleadings, the cause was tried to the court without a jury, the Honorable John Hurly, Judge, presiding. The railway company and interveners objected to the introduction of any evidence on behalf of relator, because the application for the writ did not show that relator had complied with the law requiring the assessment and payment of damages to property owners which will result from a change in the grade. Evidence was submitted by all the parties, from which the court made findings of fact in substance as follows:

That the Northern Pacific Railway Company operates a railroad between Duluth, Minnesota, and Tacoma, Washington, which passes through Miles City, Montana, in a general easterly and westerly direction; that Miles City was first settled in 1878 and the railroad constructed in 1881; that the track was located on the 400-foot right of way donated to the railway company by Congress by Act of July 2, 1864 (13 Stat. 365); that Main street in Miles City is now situated identically where a highway existed before construction of the railroad and has been used and traveled by the public and recognized by the public authorities; that the city was incorporated in 1887, and since that time the railway company, under direction of the city, has maintained and repaired the crossing over its tracks and right of way; that the cost of constructing the subway would be about $100,000; that the city has a population in excess of 7,500, about one-half being south of and the remainder north of the track. The findings show that the topography of the city, the situation of its churches, schools, and hospital, and the location of its business district, are such as to constitute Main street the principal street of the city, traveled daily, at the crossing in question, by hundreds of school children, pedestrians, and vehicles; that long freight trains frequently block Main street crossing and other crossings for a period of time in excess of the time provided by city ordinance, and that sometimes, when the crossing is blocked, pedestrians and school children crawl under or over the freight cars; that the blocking has interfered with the operation of ambulances and fire trucks; that the railway company has five separate tracks across Main street, known as the main track, two passing tracks, and a separate track serving each of the interveners; that it has installed an electric wigwag warning signal at the crossing which operates only when a train is approaching on the main track; that the signals operate occasionally when cars are placed on the main track and when no train is approaching; that the buildings belonging to interveners and situated on the railroad right of way, held under lease by interveners, are close to Main street and obstruct the view of the tracks and contribute to and enhance the danger of the crossing; that the construction of the subway will materially change the grade of Main street at the place of construction and that no proceedings have been had in conformity with the statutes of this state to change the grade; and that if the change is made in the grade, interveners will suffer substantial damages.

From these findings of fact the court concluded as a matter of law that because of the failure of the city to comply with the statutes in attempting to change the grade of Main street at the point where it abuts upon the property of interveners, the application for the writ should be denied. Judgment was accordingly entered quashing the alternative writ and dismissing the proceedings. The appeal is from the judgment.

It is insisted on behalf of the city that the court erred in permitting the complaints in intervention to be filed, in awarding judgment for defendant and interveners, and in not entering judgment for relator.

The law is well settled that a city may, in the exercise of the police power conferred upon it by the Legislature, enforce uncompensated obedience to reasonable regulations requiring the construction of crossings by railway companies, designed to promote the safety of the public and the general welfare ( New Orleans Public Service v. City of New Orleans, 281 U.S. 682, 50 S.Ct. 449, 74 L.Ed. 1115; Lehigh Valley Railroad Co. v. Board, 278 U.S. 24, 49 S.Ct. 69, 73 L.Ed. 161, 62 A. L. R. 805), and that contracts made by the railway company are made subject to the exercise of that right (Erie Railroad Co. v. Board of Public Utility Commissioners, 254 U.S. 394, 41 S.Ct. 169, 65 L.Ed. 322).

But it is also the rule that the extent of the police powers of a city and the manner in which they may be exercised depend upon applicable legislative acts. McQuillin on Municipal Corporations (2d Ed.) § 948. "The source of the police power of a municipality is the state. The extent of it must be ascertained from the law creating the municipality, and from the laws of the state bearing upon the same subject." Helena, etc., Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446, 447. Of this same question the Supreme Court of Iowa, in Trustees of Protestant Episcopal Church v. City of Anamosa, 76 Iowa, 538, 41 N.W. 313, 314, 2 L. R. A. 606, said: "The city must exercise its power in the manner prescribed by its charter. If authority be conferred upon it to establish grades and cause streets to be graded by ordinances, these things cannot be done in any other way. The city must pursue the law granting it authority." In consequence, we must look to the statutes to determine whether the city has the right to enact the ordinance in question here, and whether its authority was properly exercised.

Subdivision 12 of section 5039, Revised Codes 1921, as that section was finally amended by chapter 20 of the Laws of 1927, gives the city the power "to require the construction of crossings on the line of any railroad track or route within the city *** where the said track intersects or crosses any street, *** and to fix and determine the size and kind of such crossing and the grades thereof; and, in case the owner of such railroads fails to comply with such requirements, the council may cause the same to be done, and it may assess the expense thereof against such owner, and the same constitutes a lien on any property belonging to such owner within such city or town, and may be collected as other taxes."

But under subdivision 68 of section 5039 (amended by Laws 1927, c. 20), which must be read in connection with subdivision 12, it is expressly provided that when once the grade of a street has been established, "it must not be changed *** until the damage to property owners, caused by the change of grade, has been assessed and determined by three disinterested appraisers who must *** make an appraisement, taking into consideration the benefits, if any, to the property, *** and the amount of damages so assessed must be tendered to the owner or his agent before any change of grade is made."

Also, section 5300 provides: "When the grade of any street *** is established *** and a building shall thereafter be constructed upon a lot abutting on said street, no change must be made in the grade of such street *** which requires the raising or lowering of any building so constructed until the damages which may accrue by reason of such raising or lowering are ascertained and paid, as is hereinafter provided."

Section 5301 provides for the method of appraising the damages, and succeeding sections give the right of appeal from the appraisement.

These statutory provisions, whether necessary or not to save subdivision 12 of section 5039 from transgressing the constitutional inhibition contained in section 14, article 3 of the Montana Constitution, constitute a part of the law under which the city may exercise its police power effecting a change in the grade of a street. They...