The City of Iola v. The Missouri Pacific Railway Company

• Decision Date: 12 February 1916
• Docket Number: 19,904
• Citation: 97 Kan. 242,155 P. 45
• Parties: THE CITY OF IOLA, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Kansas Supreme Court

155 P. 45

97 Kan. 242

THE CITY OF IOLA, Appellee, v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant

No. 19,904

Supreme Court of Kansas

February 12, 1916

Decided, January, 1916.

Appeal from Allen district court; OSCAR FOUST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. RAILROADS--Crossing Highway--Restoration of Highway. Under its common-law duty a railway company which constructs its road across a highway is bound to restore the highway, by some reasonably safe and convenient means, to its former condition.

2. RAILROADS -- Crossing Public Street -- Duty to Make and Maintain Crossings--Bridges. Under the statute which requires a railway company that builds its road over a street or highway to restore it "to its former state, or to such a state as to have not necessarily impaired its usefulness" (Gen. Stat. 1909, § 1763, subdiv. 4), a railway company which constructs a railroad over a street of a city is bound not only to make a suitable crossing, but to maintain the same as long as it continues to occupy the street, and to that end it may be required to build and maintain a bridge at the crossing of a highway if such a structure is rendered necessary by the construction of the railroad.

3. RAILROADS -- Along Public Street -- Duties in Relation to Crossings, Bridges and Watercourses. When a railway company is given permission to build its road along a street of a city upon the condition that the company will construct and maintain suitable crossings at all points of intersection with other streets, it is the duty of the company which builds along that street and over others to make crossings appropriate to the situation at the points of intersection; and where the company in the course of constructing its road diverts a small creek from its natural channel into an artificial one along the side of its track and across a street, using the earth obtained in digging the channel to make an embankment or grade for its road, and the railroad and channel so made render the construction of a bridge over a street across which the railroad is built necessary for the safety and convenience of those using the street, it is incumbent upon the railway company to construct and maintain such bridge or other structure, and when reasonably necessary, to rebuild and replace it with a new one.

W. P. Waggener, A. E. Crane, both of Atchison, and Altes H. Campbell, of Iola, for the appellant.

H. A. Ewing, S. A. Gard, and G. R. Gard, all of Iola, for the appellee.

OPINION

JOHNSTON, C. J.:

In this action the city of Iola asks a peremptory writ of mandamus to compel the Missouri Pacific Railway Company to build a bridge at the intersection of Walnut and Benton streets in that city.

The railroad was built through Iola in 1881, and preliminary to its construction the city enacted an ordinance granting to the company the right to build its road along Benton street which runs east and west. The grant was made on the condition "that said railroad company constructs and maintains suitable crossings on said street and all points of intersection thereof by other streets and highways within the limits of said city." In constructing its railroad on Benton street the company diverted a small stream called Coon creek from its regular course. It had run across Benton street near the intersection of Benton and North streets, and ran in a southwesterly direction about a block and then made a bend, turning north and crossing Benton street again two blocks distant at its intersection with Walnut street. The company constructed its road near the middle of Benton street, and from a point at North street to one about a half a block beyond Walnut street, a distance of about two and a half blocks, it dug a new channel for Coon creek north of its tracks, and closed up the old channel. The earth taken from the bed made for the new channel was used by the railway company in making the embankment or grade on which the track was laid. The track was 3.57 feet higher than the original grade of Benton street, and the new channel as made by the railway company for the creek is 6.34 feet lower than the rails of its track. The railroad and the new channel so made practically rendered Benton street useless for ordinary travel for a distance of two and a half blocks, extending from North street to a half a block beyond Walnut street. At the intersection of Benton and Walnut streets the channel made by the railway company is about forty feet wide, and the height and character of the grade and the depth of the channel practically destroyed the crossing and made Walnut street impassable at this place. To overcome this difficulty and make the crossing passable the railway company about the time its road was built erected a wooden bridge over the channel, which has been maintained by the railway company ever since that time. That bridge has become so weakened by decay and use that it is no longer safe for public travel. The city is now improving Walnut street, and has by ordinance required the railway company to build a...