The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1899-08-05
AGAINST Thu ROADS !
JUDGES BRILL, OTIS AND BUM
GRANT PEREMPTORY WRIT
OF MANDAMUS
AGAINST TRANSFER COMPANY

of the Most Important That
Has Been Rendered in Years
Disposes OF Considerable Litiga-
ton Now Pending.
Judges Brill, Otis and Bum, acting
jointly, yesterday filed a decision grant
ing the peremptory writ of mandamus
prayed for in the REALTORS petition
against the Minnesota Transfer Railway
company. The proceedings were insti-
tuted for the purpose of compelling the
respondent company to meet the expense
of painting and repairing the bridge over
the Minnesota Transfer tracks, on Uni
Versity avenue.
The city council in 1898 directed the city
engineer to prepare plans for the repair
ing Of the bridge, and the cost of the
work found to be necessary was est-
mated at about SIS, 900. The question then
arose as to whether the Transfer Railway
company was not required to make the
repairs az its expense. A demand was
made on the company and was refused.
An alternative writ of mandamus was
then applied for BY the city, and against
this the company set up an agreement
made between the city and the company
in 1888, at the time the bridge was con-
structed, which provided that if the COM
pany built the bridge the city should
stand the expense of maintenance. The
corporation attorney asked for a per-
emptory writ on the ground that the
answer of the company did not constitute
a legal defense, and the decision handed
down yesterday grants the writ. The
judges hold that the city council did not
have the power to enter into any such
agreement as the one made in 1888 In
the memorandum accompanying the de-
cision the judges say, in part:
l. It seems to be well established that,
even in the absence of a statute or char
ter provision requiring it, a railroad COM
pany, which lays its tracks across high
way previously dedicated to publice use,
must leave such highway at the point of
crossing in reasonably safe condition
for public travel over such tracks. If
necessary to this end such company may
be compelled to bridge the tracks and
prepare suitable abutments therefor, all
at Its own expense
1t is directly settled by our supreme
court in Flynn VS.. Little Falls E. &, w.
Co. that it is not within the power of
the municipal authorities to enter into
contract binding the municipality for all
time or for an unreasonable length of
| time. whereby it valves or forfeits any
OF It's rights, privileges or franchises, even
though there may be consideration for
| such contract.
3. With these principles established we
may concede for the purpose of this case
that the proposition by respondent sub
mitted to the Common council, and it's
acceptance by resolution, and what was
done pursuant to such action amounted
to contract, provided the city authori-
ties mad power to make it. In our
judgment this power did not exist As
We construe the contract so attempted to
be made, it binds the city for all future
lime to maintain bridge of the kind
there speclhed; OF the same height width
construction and character, without re-
gard to the future needs of the city and
eXlgencleS OF public travel. 1t binds the
city for all future tin!is 5,,t to cross the
tracks at the surface s1-sFs: nor to allow
any street car or -T2cIIaa company so
to do, or to so cross at any other grade
| man that liked by the height of the
| bridge. 1t forever valves a most vaIu-
| able right Of the city, given to it at
common law, viz, the right to compel the
| fespcEdent to provide and forever main
| tam suitable ard. safe crossings on Uni
| VeTs1ty avenue over it's tracks and other
grounds, distance of over 300 feet and
II relieves the respondent for all time
| irom any and all obligations in that be-
| half a most careful examination of the
| proposed agreement cOmpelS this con-
strucuon OF 1t, nor does the respondent 5
| counsel suggest that this is not the con-
StrucuOn to be given to and which he
| claims for it. Such an arrangement. in
our OPINION, was ultra wires, directly with
| IN the inhibition of Flynn VS.. Little Falls
| Il. & ". Co, supra, and binding neither
upon the city nor the respondent That
the city can thus be bound hand and foot
| 1Gr all future time, by any act of the
| municipal authorities not expressly au-
| thoflzed by the legislature, is not to be
| tnought Of without regard to whether
| there was or was not consideration fo.
! the arrangement. In the case last men
| toned the vice of the attempted contract
was no want of consideration but an un-
I h
| thirty years, and here, without any lin
! ltaton as to time of any kind
| l. 1t is urged that no necessity for this
| particular Kind of bridgs+ - -i.ade to an
| pea. 1t does appear, hoveve<. with rea-
| Sonable certainty, that so.,e kind of
prldge was and is necessary to enable
| the travelling public to cross these tracks
| IN safety. This is the bridge which was
! built and accepted, and presunlL IveIv was
! or was deemed necessary for the nur-
| pose. respondent is not here off@riag any
| otnef means of crossing to LSees the
| eXlgehcleS OF the case, but 81 4he con
| trary plants itself upon the IlrIte.,a HE
GROUND tnat 1t IS not obliged to provide
! any crossing whatever, and that If is
released from all cOmmon-law Obligation
| IN the premises Since this strIctIire nv
| mutuaI consent has been adopted, for the
| purposes OF erecting safe crossing and
| since, as we have decided, the obIiga fior
rests upon respondent to provide and
MAINTAIN a crossing of such character, it
! must repair and maintain the cr0ssine
! mere so provided or some other entirei9
| suitable for the purpose II will No. ~ y
| heard to claim that this structure is mn
| necessary, and at the same time refuse
| TO provide suitab bic substitute.
! moreover the unusual length of this
| bridge, of which complaint is made was
| occasloned in part to enable resn0ndenf
! TO ENJOY the free use of its lands 0utsi5o
| of its tracks, and in part by the tranite
themselves If the laying Of the tracks
| called for bridge at University aVen3io
| and the construction of a bridge sI1itabIo,
| LOT the purpose on that avenue with tbe
! approaches would obstruct travail on
! cleveland avenue, it certainly was inc1In1-
| Dent on respondent to adjust the con
! structlon 50 as to accommodates bO+h
| streets. The extension over CIeveIan nd
| avenue IN such case necessarily resnItad
| from laying the tracks across TTnfversi+I
| avenue, and respondent was e0uaIIy
! pound TO make provision for it. ResnOnJ
ent can not complain of the Ien@tb ~
| the bridge so far as it is constructed o,-e+
| It's land outside of its tracks, for his va
LOT respondents own convenience and az
ccmmodation. Under the circumstance
We are OF the opinion relator Is nntitieS
70 a Peremptory writ in the form de.
manded. I'm "e-
Brill, ].
| Otis J.
| Corporation Attorney Markham af+o,
reading the decision, pronounced If one
of the most important, as far as the citI
was concerned, that has been rendered ~
| years. Indirectly, he said, it holds in
valid all agreements made between th.
city and railroad companies regarding tbt
obligations of the city to maintain
bridges after they had been constrIIctat