street occupied by its tracks if at the time they were laid, the street was not in that condition.880 However, after the space between tracks of a railroad is paved by a municipality, the duty to keep in repair this pavement, rests upon the company.83i

$859. Highway crossings.

It is inevitable that both steam and street railroads cross at times, with their lines of road, highways already legally established. A duty of the railroad company may arise in respect to the compensation which shall be paid by it. This is determined by principles and cases already referred to in the preceding sections.832 In the case of a highway crossing, relatively a small portion of the highway is occupied but this will not change or vary the rules applicable to the questions in respect to the occupation of a street by a railroad.

A duty also arises on the part of the railroad company, and especially a steam commercial railroad, in respect to the construction of its road thereafter.833 The police power of the state can

830 City of Chicago v. Sheldon, 76 U. S. (9 Wall.) 50; Ft. Dodge Elec. Light & Power Co. v. City of Ft. Dodge, 115 Iowa, 568, 89 N. W. 7; State v. New Orleans, C. & L. R. Co., 42 La. Ann. 550, 7 So. 606. Construing special contract. State V. Corrigan Consol. St. R. Co., 85 Mo. 263; Kansas City v. Corrigan, 86 Mo. 67; Dean v. City of Paterson, 67 N. J. Law, 199, 50 Atl. 620; City of Binghamton v. Binghamton & P. D. R. Co., 61 Hun, 479, 16 N. Y. Supp. 225; Davidge v. Common Council of Binghamton, 62 App. Div. 525, 71 N. Y. Supp. 282; City of Philadelphia v. Evans, 139 Pa. 483, 21 Atl. 200; Leake v. City of Philadelphia, 150 Pa. 643, 24 Atl. 351; City of Philadelphia v. Spring Garden Farmers' Market Co., 161 Pa. St. 522, 25 Atl. 1077; Gulf City St. R. & Real Estate Co. v. City of Galveston, 69 Tex. 660, 7 S. W. 520.

But see Chicago B. & Q. R. Co. v.
City of Quincy, 136 Ill. 563, 27 N. E.
192. See, also, Sioux City St. R.
Co. v. Sioux City, 78 Iowa, 742.

831 State v. Jacksonville St. R. Co., 29 Fla. 590, 10 So. 590; Gilmore v. City of Utica, 121 N. Y. 561, 24 N. E. 1009, reversing 55 Hun, 514, 9 N. Y. Supp. 912. Abutting property owners cannot enforce a permissive duty in this respect. Leake v. City of Philadelphia, 150 Pa. 643, 24 Atl. 351. A voluntary paving by a street railway company of the middle of the street occupied by its tracks creates no liability for the subsequent repair at its own expense.

832 See §§ 743 et seq., ante.

833 Farley v. Chicago, R. I. & P. R. Co., 42 Iowa, 234; Thayer v. Flint & P. M. R. Co., 93 Mich. 150; Lincoln v. St. Louis, I. M. & S. R. Co., 75 Mo. 27; Moberly v. Kansas

be exercised equally in regard to a highway crossing as to the occupation of a larger portion of the highway by a railroad and the state or subordinate public corporation can pass all necessary laws for the protection of the public using a highway crossing. The limitations upon an exercise of the police power have already been considered.835

§ 860. Duty to restore and maintain.

When a railroad is constructed across a public highway, it then becomes its duty not only to restore the highway as nearly as possible to its original condition, but also to maintain the crossing in that condition which will result in the least inconvenience and the greatest safety to the public.s The existence of a steam commer

cial road on or across a public highway is a source of constant danger and a menace to life and property which did not exist before the construction of the crossing. The authorities hold with reason clearly to the existence of the duty to restore and maintain the highway in as nearly as possible its original condition.837

In respect to the duty to construct crossings over highways which are not in existence at the time of the construction of the highway the decisions are in conflict, the greater number, however, maintain the doctrine that under such circumstances the railroad company is not bound to construct a crossing at its own.

expense.

838

§ 861. Restoration of highways. The duty to construct overhead or underground crossings.

The existence of a railroad for well known reasons and already stated on or across a public highway is a constant menace to life and property because of the size and weight of trains and the speed at which they are operated and the resulting condition of lack of quick and effective control.839 In many cases it might be said to be the universal rule, because of these and other reasons,

838 Illinois Cent. R. Co. v. City of Bloomington, 76 Ill. 447; Rock Creek Tp. v. St. Joseph & G. I. R. Co., 43 Kan. 543; Chicago, K. & W. R. Co. V. Chautauqua County Com'rs, 49 Kan. 763, 31 Pac. 736; Northern Cent. R. Co. v. City of Baltimore, 46 Md. 425; Old Colony & F. R. R. Co. v. Inhabitants of Plymouth, 80 Mass. (14 Gray) 155; People v. Lake Shore & M. S. R. Co., 52 Mich. 277, 17 N. W. 841; People v. Detroit, G. H. & M. R. Co., 79 Mich. 471, 44 N. W. 934, 7 L. R. A. 717;

Kansas City v. Kansas City Belt
R. Co., 102 Mo. 633, 14 S. W. 808, 10
L. R. A. 851; New York & L. B. R.
Co. v. Capner, 49 N. J. Law, 555;
State v. Wilmington & W. R. Co.,.
74 N. C. 143; Dyer County v. Padu-
cah & M. R. Co., 87 Tenn. 712; Gulf,
C. & S. F. R. Co. v. Rowland, 70-
Tex. 298. But see to the contrary
the following cases: Chicago & N.
W. R. Co. v. City of Chicago, 140
Ill. 309; Boston & M. R. Co. v. York
County Com'rs, 79 Me. 386; State v.
Chicago, B. & I. R. Co., 29 Neb. 412

839 Evansville & T. H. R. Co. v. Crist, 116 Ind. 446, 2 L. R. A. 450; People v. New York Cent. & H. R. R. Co., 74 N. Y. 302; Wasmer v.. Delaware, L. & W. R. Co., 80 N. Y. 212; Com. v. Erie & N. E. R. Co., 27 Pa. 339. See, also, cases cited gen-erally under this section.

841

that railroads have been required to construct and maintain overhead or underground crossings.840 The performance of this duty was strongly contested for many years by railroad corporations. Their occupation of a highway is not regarded as a legitimate use of the highway. The duty to construct a bridge or an underground crossing to be enforceable by the state or a municipal corporation need not be included, necessarily, in the grant of the authority to occupy or use a highway. Under the police power, if no other, these facilities can be required and their cost of construction must be paid exclusively by the railroad corporation.8+2 The expense of an abolition of grade crossings may be apportioned between a railway and the municipality by special contracts which will be enforced according to the rules applying to the interpretation of contracts.843 And the liability to either of the parties to such a contract to the other for damages caused by its carrying out will be determined according to the same rules.844 The rights and liabilities of a public corporation and a railroad whether street or steam as well as the abutting property owners is based upon the existence of a legal highway,845 or, where these are altered or changed, these rights and liabilities are shifted to the new loca

840 English V. New Haven & Northampton Co., 32 Conn. 240; Smith v. Town of New Haven, 59 Conn. 203; Illinois Cent. R. Co. v. City of Chicago, 141 Ill. 586, 30 N. E. 1044, 17 L. R. A. 530; In re Selectmen of Hadley, 178 Mass. 319, 59 N. E. 805; Harper v. City of Detroit, 110 Mich. 427, 68 N. W. 265; State v. City of Camden, 52 N. J. Law, 322, 21 Atl. 565; In re Road in Sterrett Tp., 114 Pa. 627, 7 Atl. 765. A grade crossing may be dangerous but it is not illegal per se. Pennsylvania R. Co. v. Warren St. R. Co., 188 Pa. 74, 41 Atl. 331; New York Cent. & H. R. R. Co. v. Warren St. R. Co., 188 Pa. 85; Chester Traction Co. v. Philadelphia, W. & D. R. Co., 188 Pa. 105, 41 Atl. 449, 44 L. R. A. 269; Barron v. Chicago, St. P., M. & O. R. Co., 89 Wis. 79, 61 N. W. 303. But see State v. Leb

anon & N. Turnpike Co. (Tenn. Ch. App.) 61 S. W. 1096.

841 People v. Union Pac. R. Co., 20 Colo. 186.

842 New York & N. E. R. Co. v. Town of Bristol, 151 U. S. 556; Town of Suffield v. New Haven & Northampton Co., 53 Conn. 367; Town of Fairfield's Appeal, 57 Conn. 167; Doolittle v. Selectmen of Brayford, 59 Conn. 402; New York & N. E. R. Co.'s Appeal, 62 Conn. 527; In re City of Northampton, 158 Mass. 299.

843 In re Grade Crossing Com'rs of Buffalo, 66 App. Div. 439, 73 N. Y. Supp. 10.

844 In re Grade Crossing Com'rs of Buffalo, 66 App. Div. 439, 73 N. Y. Supp. 10.

846 Burnes v. Multnomah R. Co., 15 Fed. 177,

he duty exists on the part of the railroad comt an overhead crossing, its performance may be ndamus.847 The duty is further regarded as a

crossings. Right of the public corporation to

ration may, in the extension of a highway, find oss the already established lines of a steam coma street railway. The rights of the parties then sed as compared with the discussion in the preIt is true that property devoted to one public use ted in part for another public use or that a joint. lished,849 though private property devoted to a - be appropriated as an entirety for similar pub

ew York, L. E. D. Div. 452, 75 N.

nah & O. Canal Boggs v. Chi., 54 Iowa, 435; Chicago, R. I. & , 422; State v. 0., 33 Kan. 176; L. R. Corp., 133 V. Chicago & W. 108, 17 N. W. a Water Power (Spencer) 659; R. Co. v. State, Town Council of nce & S. R. Co., also, cases cited

aul, M. & M. R. 8 N. W. 3; State St. L. R. Co., 39

R. Co. v. Joliet, 5 Ill. 388. "Unry railroad coright of way subof the public to

have other roads, both common highways and railways, constructed' across its track whenever the public exigency might be thought to demand it, the grant of the privilege to construct a railroad across or through the state would be an obstacle in the way of its future prosperity of no inconsiderable magnitude."

Chicago & N. W. R. Co. v. City of Chicago, 140 Ill. 309, 29 N. E. 1109; City of Ft. Wayne v. Lake Shore & M. S. R. Co., 132 Ind. 558, 32 N. E. 215, 18 L. R. A. 367. Private corporations acquire the right to construct roads subject to the dominant right of the state to cross such road whenever the public necessity demands that new roads or streets shall be opened and for this reason it is held that the general power to construct and open streets or other public highways carries with it the power to construct them across railroad tracks. Boston & Albany R. Co. v. Middlesex County Com'rs, 177 Mass. 511, 59 N. E. 115;