Parker v. Truesdale

Gilfillan, C. J. It is obvious that if the cut on the northerly part of Third avenue north, in front of plaintiff’s premises, was in accordance: with the lawfully-established grade, whether the work of cutting down to such grade was done by the city, or by some other person by its authority, or upon its requirement, no liability accrued to plaintiff by reason thereof; and under the charter of the city of Minneapolis it malíes no difference with this proposition that the grade on which the cut was made was a change from one pre [245] viously established. Henderson v. City of Minneapolis, 32 Minn. 319, (20 N. W. Rep. 322.) So tbe only questions in the case are, was the cut made upon a. legally-established grade? and was it made by authority of the city? That the grade for the cut was lower than the grade as first established, and covered or included only a part of the width of the street, leaving the other part on, or perhaps raised above, the grade, as first established, does not mate it illegal, for the authority which may establish the grade for a street may, under peculiar circumstances, adopt one plane for a part of the width of the street, and a higher or lower plane for the other part, requiring a retaining wall to sustain the part on the higher plane. Yanish v. City of St. Paul, 50 Minn. 518, (52 N. W. Rep. 925.) The charter of the city of Minneapolis (Sp. Laws 1881, ch. 76, subch. 8, § 2) authorizes the common council to establish grades, and, by a vote of two-thirds, to change the grade of any street after such grade has been established. So far as appears in this case, the council never, by ordinance or resolution passed by a two-thirds vote, made any change in the grade of Third avenue north, as it had been previously established; and if the sole power to change an established grade rests in the common council, the cut, which was below the grade as established, and not changed by the council, was, as between the abutting property owners and the person making it, unauthorized and wrongful. And this brings us to the question whether, in such proceedings as were proved in this case, which proceedings have been several times, directly or indirectly, before this court, the court has the power, equally with the council acting-under the charter, to change established grades, when deemed neces-ary. If it has, then this action in changing grades has the same effect, and precisely the same consequences, as the action of the council making a change under the provisions of the charter. It is no answer to this that the abutting property owner is not in person a party to the proceeding, nor a parly in any other sense than that the entire public interested in the use of the streets and the establishment of grades is represented by the city which prosecutes the proceeding. In no other sense would he be a party to a proceeding to change grades, before the council; and certainly no one could say that a change made by the council was invalid because he was not personally brought before it. [246] Th'e proceeding was in bebalf of tbe public, -represented by tbe municipality, to enforce tbe performance by tbe railway company of tbe duty imposed on it by its charter, to restore any street or bigbway crossed by its tracks “to its former state, or in a sufficient manner not to impair its usefulness to tbe owner or to tbe public,” which duty, as construed by this court in State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, (28 N. W. Rep. 3,) and State v. Minneapolis & St. L. Ry. Co., 39 Minn. 219, (39 N. W. Rep. 153,) includes the construction, when necessary to the free public use of the highway, of bridges or viaducts, and tbe approaches thereto. Of course tbe legislature intended that, -when not voluntarily performed, tbe courts should enforce that duty, and should have all tbe powers necessary to accomplish that end. And as said in tbe last-cited case, and as must be obvious, when tbe parties—tbe public authorities in charge of tbe streets and highways, on one side, and tbe railway company, on tbe other—do not agree as to what shall be done, it must, of necessity, be for tbe courts, when appealed to, to determine what tbe public interests require to (be done, within tbe duty imposed on tbe railway company, and bow it shall be done, including tbe grade or level upon which any bridge or viaduct, and tbe approaches thereto, shall be constructed; and for this purpose tbe court must have as full and complete authority over tbe streets and highways as tbe necessity of tbe case requires, and as tbe legislature could vest in any one. That tbe court may impose tbe duly on the company to carry tbe street across tbe tracks at a level higher or lower than tbe previously established grade, and yet it be unlawful, as to any one, for tbe company to construct tbe crossing on that level, involves an absurdity. The construction of a bridge or a viaduct across tbe tracks on.a particular street, changing the grade of tbe street, may make necessary tbe readjustment of tbe grades of other streets in tbe vicinity, so as to preserve to tbe public tbe beneficial use of such streets in connection with that on which tbe crossing is constructed. Before applying for tbe mandamus to compel the railway company to perform the duty to tbe public imposed on it by its charter, tbe city caused to be prepared by its engineer careful and comprehensive plans of tbe work it deemed necessary to be done, including that on several streets; among them, a part of Third avenue north. These plans, which [247] were attached to the alternative writ, are referred to in the judgment, and the work directed-to be done in accordance therewith. On these plans appears the cut in question, which appears as intended to preserve to the public a practicable way to and from the freight houses of the company., The judgment necessarily changed the previously established grade of that part of the avenue to the grade necessary to make the cut represented on the plan. It is not disputed that the work was done according to the plans and judgment. The case is fully covered by Robinson v. The Great Northern Railway Co., 48 Minn. 445, (51 N. W. Rep. 384.) If, in any case where a change of grade of a street is made by the proper authority, it can be alleged to be invalid because made for the purpose of benefiting a private person, it can be only where it is unmistakable that a determination of what the public interest requires was not the reason for the change. The fact that one person may be incidentally benefited by the change certainly is not enough. The cut in question is as much a public highway as the avenue ever was. No. one, except as one of the public, has any interest in it. And if the court determined—as we are bound to presume it did, and as we would have been bound . to presume of the council, had it changed the grade —that the public interest required the cut-to be made to preserve a way of access for the public to the company’s freight houses, the fact that it also facilitates the transaction by the company of its business with the public can be no legal objection to the change of grade. (Opinion published 55 N. W. Rep. 901.) Order affirmed. Mitchell, J., dissents.