St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-04-07
Supreme Court.
DECISION.
The City OF Minneapolis, appellant, VS.. The
st. Paul. Minneapolis & Manitoba Railway
COInnanv rasnnnnant


The City Of Minneapolis, appellant, vs. The
st. Paul, Minneapolis & Manitoba Railway
Company, respondent.
SyllabuS-The charter provides that the
railway company shall have the right and au-
thorlty TO construct its railroad upon, along,
across, under or over any public highway,
road or street II necessary, 'but the said
company shall put such highway, road or
street in such condition and state of repair as
not to impair or interfere with its free and
proper USE" Held. tat the right of the
company TO lay its tracks on or across q street
is not absolute, but subject to the condition
that IL be done so as not seriously or substan-
TALLY to impair or interfere with the use of
the street. The grant is subject to the duty
to put the street in such condition as to fur
nish the public thoroughiare substant ally
as capable or safe and convenient use as be-
fore. This duty is continuing one. 1t is
not fulfilled by putting the street at the time
of building the railroad in such condition as
not to impair or interfere with its use at that
time, nor by maintaining it in such condition
as would have accomplished that end had the
state of things originally existing continued.
The duty has reference to future exigencieS
and requires the railroad company from time
to time to put the street in such cOndit.O as
changed circumstances may render neces-
Sary. Hence, although railway crossing on
the surface OF the street may have been ade-
quate at the time the railroad was built, yet
if by reason of the increase in the number of
tracks and 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, 1t becomes the duty of the COM
pany to provide some other mode of crossing,
as by carrying the street under or over their
tracks. This includes the doing of whatever
is needed to accomplish the required 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 yiaduct carrying the street over
or under the railway tracks. If compensa-
ton has to be made to the owners of abutting
property injured by change of grade of the
street in making lateral entertainments or ex-
cavatlons, as approaches to the crossing,
| this expense must be borne bv the company,
it being a necessary part of the cost of put
| ting the street In the condition and state of
repair required by statute, the necessity for
! which was created by the presence of the
railway in the street. The duty imposed
| upon the company carries with it the power
| to perform it. and in the exercise of that
power all other needful auxiliary powers
| given by its charter; and of these is the
! power to take lands for the purposes of the
| corporations; the construction of bridge or
viaduct, and of the approaches thereto when
| necessary to carry street under or over the
| railroad, is part Of the enterprise author
lied by the charter. Order quashing the writ
| reversed and proceedings remanded.
| MITCHELL, J.
Chief Justice Gilfllan dissents.
| APRIL TERM.
Helen NJ. Wiswen, administrative Of the
| estate of James A. Wiswell. deceased, re-
spondent, vs. William H. Wiswell appellant.
| Submitted on br efs.
The Walter A. Wood Moving and Reaping
| Machine company, respondent, VS.. @. NJ.
Kingsley, appellant Motion by respondent
to dismiss appeal argued.
In the matter of the last will of John S.
Brown, deceased. George W. Brown, Mary L.
| Martin and A. G. Brown, proponents and ap-
pellants, vs.. Emma Brown, Ada Hall and Ida
/ Brown, contestants and respondents. Order
to show cause why appeal should not be dis
missed.