St. Paul daily globe., 1886-08-20

and proper use."
In the case of the St. Paul & Duluth
Railroad company the provision of the char
ter is that ''the said company may con-
struct the said railroad across any public or
private road, highway, stream of water or
water course if the same be necessary; pro-
vided, that the same shall not interfere
with navigation; but said company shall
return the same to their primitive state or
In sufficient manner SO as not to impair
the usefulness Of such road. highway,
stream of water or water course to the
owner or to the public"
The Union Depot company is organized
under the general laws of this state relat-
ing to corporations. The provisions OF the
statutes under which this company is
organized with reference to roads, streets,
alleys or public ways is as follows:
If it become necessary in the location
OF any part of a railroad to occupy any
road, street, alley OF public way or any part
thereof. it shall be competent for the mu-
nicipal or other corporation or public Off
Ger or public authorities owning or having
charge thereof and the railroad company to
agree upon the manner and upon the terms
and conditions upon which the same may
be used or occupied; or such company may
be necessary for the purposes of said road
in the same manner and upon the same
terms as is herein provided for the appro-
priation of the property of individuals. {"
This last clause being to the effect that
such right may be secured by condemnation
proceedings. This Board is not advised
that any such condemnation proceedings
have been instituted by the Union Depot
Railway company with reference to the
Third street crossing, or that there has been
any agreement with reference to the same
between said company and the authorities
of the City of st. Paul.
KittSon's addition to the City of ST.
Paul, in which is located the Third street
crossing now under consideration. was laid
out i'll the year 1854, and the plat was put
on record Dec. 1, 1854.
The dedication of this part of Third
street as a public highway antedated not
only the location and construction of the
railways named but is prior to the organi-
Zation of the companies themselves.
The common law rule with reference to
railway crossings over highways or public
streets does not differ materially from the
conditions inserted in the charters of the
st. Paul, Minneapolis & Manitoba and the
st. Paul q Duluth Railroad companies
No consideration of a crossing of Third
street by the Union Depot company could
be had upon any different terms and it is
reasonable to suppose that no agreement
between said company and the municipal
authorities of ST. Paul could be found upon
any other basis. So far as the st. Paul.
Minneapolis & Manitoba railway is con-
cerned, their duties and obligations with ref
erenee to street crossings have been judi
cially determined by the supreme court of
this state in the case of the City of Mime
apolis VS.. the st. Paul. Minneapolis & Man
itoba Railway Company.
In this case the court holds that under
the charter the right of the company to lay
It's tracks on or across a street is not alb
solute but subject to the condition that it
be done so as not seriously or substantially
to impair or interfere with the use of the
street. The grant is subject to the
duty as to furnish the public a
thoroughfare substantially as cap
able of safe and convenient use
as before. That this duty is a continuing
one. 1t is not fulfilled by putting the street
at the time of building the railroad in such
cond ton as not to impair or interfere with
its use at that time; not by maintaining it
in such condition as would have accom-
plished that use had the state of things
originally existing continued. The duty
has reference to future exlgencies and re-
quires the railroad company from
time to time to put the street
in such condition as changed cir
cumstances may render necessary. Hence,
although a railway crossing OF the surface
of the street may have been adequate at the
time the railroad was built, yet if by reason
Of ha in tla f +roa
railway traffic and of the increase of travel
on the street, such crossing becomes unsafe
and dangerous, and seriously impairs and
interfereS with the free and proper use of
the street. it becomes the duty of the COM
pany to provide some other mode Of cross
ing, as by carrying the street under or over
their tracks. This includes the doing of
whatever is needed to accomplish the de-
sired end, and which is rendered necessary
to be done by reason of the presence OF the
railroad in the street, as, for example, the
approaches to the bridge or viaduct carrying
the street over or under the railway tracks.
If compensation has to be made to the
owner of abutting property injured by a
change of grade of the street in making
lateral embankmentS or excavations as ap-
proacheS to the crossing, this expense must
be borne by the company, it being neceS-
sary part of the cost Of putting the street in
the condition and state of repair required
by statute, the necessity for which was
created by the presence of railways in the
street.
Such is believed by the Board to be the
common law governing the crossing in
question, and such is the law of Minnesota
as laid down by the highest judicial trb-
unal, with reference to crossings like the
one in question.
The burthen, the obligation and the duty,
not only of the bridge but of the approaches
to such bridge, and of any change of grade
rendered necessary by reason of such bridge
or its approaches, Is clearly laid upon the
railway companies.
1t follows as a matter of course that this
burthen, obligation and duty cannot by the
action of any department of the city gov
ernment, or by the action OF all the de-
partments combined, be transferred to the
taxpayers of the city, or any portion there
of. without their full and free consent.
The Board is of opinion that any attempt
to transfer the expense of this bridge. or OF
its approaches, or of damages for change
of grade rendered necessary thereby, with
out such consent first had and obtained,
would be defeated i'll the courts
Such al assessment is believed to be be-
yond the power of the city government.
The case cited, and the conclusions
reached by the supreme court therein, are
at all points exactly applicable to thecr
ings of Third street in this city by the
companies named.
With reference to the fourth question OF
the preliminary order, the Board reply that
the improvement contemplated has not, so
far as it is, ever been asked for upon the
petition or application of majority OF the
property to be assessed for such improve
ment. there beng in the opinion of the
Board no property liable to be assessed
therefor.
In reply to the fifth request of the order,
the Board send herewith plan OF profile
of said improvement as prepared by the
City Engineer.
With reference to the Sixth requirement
of the preliminary order, the Board reply
that thav cannot send nrOner nrdar diraot-