City of Oconto v. Chicago & Northwestern Railway Co.

Cole, J. It was the plain duty of the defendant corporation to restore all highways and sidewalks intersected or crossed by its track, to their former state of usefulness. This obligation or duty was expressly imposed upon it by the very statute which granted it authority to cross any highway in the construction of its road. Tay. Stats., ch. 76. The grava [239] men of tbe complaint is, that tbe defendant, in tbe fall of 1871, constructed its traclt across five or more steets of the city in such a manner as not only temporarily to injure the streets and impede tbe public travel thereon, but also to permanently impair their usefulness. It is alleged that the defendant neglected to restore such streets to their former condition, though often requested so to do, and that the city was compelled to expend large sums of money in repairing the streets and sidewalks, and rendering them suitable for public use. The action is brought to recover the expenses the city incurred in making these repairs. There was surely abundant testimony offered to sustain these allegations of the complaint; and we therefore think the court below was right in refusing to grant a nonsuit. The main objection relied on to defeat a recovery is, that the city, in making the repairs, did not comply with the provisions of the charter regulating the manner in which such work should be done and paid for. It is said that the rule is general, and applicable to municipal corporations, that where the mode in which the power on a given subject can be exercised, is prescribed in the charter, this mode must be followed in order to give validity to the acts of the corporate authorities. It is not necessary to question or controvert the correctness of this proposition, in affirming this judgment. In doing the work, the city authorities seem to have substantially complied with the provisions of the charter applicable to the case. It is objected that the street commissioners had no power to do the work alleged to have been done on these crossings, at the general charge of the city, and thereupon found a claim against the defendant. The city was certainly bound to keep its streets in proper repair, and, if it neglected to perform that duty, the law is well settled in this state, that it would be liable for injuries to private persons caused by defective and unsafe streets and sidewalks. The common council have full control over the streets and sidewalks of the city, and ample [240] authority is given them to keep them in repair. The general plan or economy of the charter is, that repairs should be made, under the direction of the street commissioners, at the expense of the adjoining lots. This is obvious from chapter 7 of the charter. Consequently, power is given the street commissioners to order and contract for repairing streets and sidewalks within their respective wards, at the expense of the adjoining lots, when the owners neglect to do the work in the manner and within the time prescribed by the commissioners. Sec. 3, ch. 7. But it is provided in the same section, that “nothing herein shall be so construed as shall prohibit such street commissioners from making, or causing to be made, all necessary repairs to any sidewalk, street,” etc. But we do not think the repairs contemplated by the charter to be made at the expense of the adjoining lots, were those rendered necessary in consequence of a railroad company constructing its road aeross or over the sidewalk or street. For repairs of the latter character the law positively and clearly enjoins upon the railroad company to make. Of course, if the repairs were made at the expense of the lot-owner, the lot-owner should have his action against the railroad company for money expended for its use; and thus the corporation would be subjected to as many actions as there were lot-owners who had made repairs. Perhaj)S the railroad company would have no just ground to complain that it was subjected to numerous suits growing out of its failure to perform a plain legal duty; but still it is not the policy of the law to encourage unnecessary litigation. And, under the above proviso, we have no doubt that the street commissioners had authority to make the repairs on the streets and sidewalks which were rendered necessary by the construction of its road over them by the defendant. If such streets and sidewalks were actually left in a dangerous and impassable condition by the railroad company, the street commissioners were clearly authorized, under the circumstances, to cause them to be put in suitable repair. [241] Rut it is said that the commissioners did not comply with the provisions of the charter in respect to doing the work; that is, did not keep a record of their acts, passed no formal order, and made no written contract for the execution of the work. The evidence tends to prove, and under the charge of the court the jury must have found, that the city, by the order of the street commissioners of the ward in which repairs were rendered necessary by the acts of the defendant, authorized the repairs to be made, and that the expense of the repairs so made was reasonable in amount, and actually paid by the city. The jury were told that, in determining whether or not the expenses incurred and paid by the city for the work in question were reasonable in amount, they should consider whether the sums paid were reasonable for the work which was necessary to be done, and for the lumber and other material necessarily used in order to put the streets and sidewalks injured in as good condition as they were before the railroad crossed them. All the questions of fact seem to have been fairly submitted, and we really see no force in the technical objections taken to the action of the street commissioners in ordering and causing the repairs to be made. "We must assume that the jury found, under the direction of the court, that the agent of the company, having charge of the building of the road, was notified and requested by the city authorities to make the necessary repairs, but wholly neglected or failed to make them. And we do not think the defendant is now in a position or has any right to question the action of the common council in appropriating the funds of the city to pay for these repairs. We think this disposes of all the material questions in the case, and that the judgment must be affirmed. By the Court. — Judgment affirmed. RyaN, C. J., and LyoN, J., took no part.