226 N.W. 470 | Minn. | 1929
The westerly approach to the present bridge, as well as to the new, begins at John street. The easterly approach to the present bridge begins at Commercial street. The city now proposes gradually to raise the grade as the bridge runs easterly to connect with Mounds boulevard and Maria avenue on top of Dayton's Bluff. Commercial street is some 90 feet below Mounds boulevard. The grade of Third street from Commercial street east to Maria avenue is over 10 per cent, entirely too steep for present day needs. This proposed plan of a viaduct or bridge from John street to Mounds boulevard and thence on a fill to Maria avenue, something over half a mile in length, at a uniform grade of 4.1 per cent, is by the city deemed necessary effectively to serve the traveling public. The commission found that the total cost of the project would be $803,000, and as we understand it $455,300 of that sum would be required to reconstruct the bridge from John street to Commercial street upon a uniform grade of 4.1. The existing bridge is something over 1,800 feet in length. Maria avenue is 125.6 feet higher than the rail of the most easterly railway track. *195
Prior to the enactment of L. 1923, p. 143, c. 134 [G. S. 1923, (1 Mason, 1927) § 4663] the law was thoroughly settled that it was the uncompensated duty of a railroad to carry a street crossing its tracks over or under the same when the public safety and convenience so required. This meant both the bridge and approaches, also the subsequent maintenance and future improvement of the same as public demands called for. State ex rel. City of Minneapolis v. St. P. M. M. Ry. Co.
It cannot be denied that the growth of a city may demand expensive changes in its streets both as to grade and width of the roadway or paved part, and also to corresponding changes in the viaducts or bridges which carry the streets across railway tracks. When such viaducts or bridges are not strong enough to carry street car traffic, when the demand for such traffic arises, the railroads must stand or share the cost of strengthening them. City of St. Paul v. G. N. Ry. Co.
In considering these appeals the court below, as well as this court, must assume the order of the commission to be reasonable and lawful, and the burden is upon those attacking the order to show that it is unreasonable, unsupported by the record, hence arbitrary, or that it violates some statute or constitutional provision. State v. G. N. Ry. Co.
As to the appeal of the city, it contends that but for the presence of railroad tracks it would have been entirely feasible at the small cost of $249,000 to carry Third street upon a fill on a 5 per cent grade to Hoffman avenue, a block east of Commercial street, and from that point south and east on the same grade to the two trunk highways mentioned or to Maria avenue. However, with tracks there, a combination bridge and fill would cost $641,000; hence, it is argued, the presence of the tracks entails an additional cost of $386,000, even were the cheapest plan adopted to reach Dayton's Bluff territory; and so it is claimed that under the law as it stood prior to 1923 the lowest cost to the railroad companies for carrying traffic over its tracks by proper grade to Hoffman avenue would have been $641,000, the least sum which should be apportioned between the city and the companies. It is contended that the city may require the approach to the bridge to begin at Hoffman avenue instead of Commercial street, and as authority is cited State ex rel. City of Faribault v. W. M. P. R. Co.
Here the railroad had found a terminus for the east end of the viaduct across its tracks at Commercial street, which intersected Third street on grade; and it would be unreasonable to require it to carry the approach to Hoffman avenue a long distance east of Commercial street and upon a greatly changed grade. In our opinion none of our decisions have gone so far as to compel the railroads to bridge in whole or in part Third street farther east than Commercial street.
The appeal of the railroad companies is based principally on the proposition that State ex rel. City of St. Paul v. St. P. M. M. Ry. Co.
As to reconstructing that portion of the bridge west of Commercial street, we do not think the railroads may object to their being compelled to share in the costs on constitutional grounds, for the situation makes applicable the above cited cases in
There might be some ground for the railroads' complaining because the commission divided the cost of the bridge up to the easterly line of Commercial street, including the viaduct carrying that street under Third street. But no particular point is made on that score, possibly because the railroad companies consider they had fair treatment, if any legal obligation at all rests upon them to bear any part of the construction of the proposed bridge. Holding, as we do, that the city has the right to change the grade of Third street, it would seem that the city should carry the cost of *199 that change from Maria avenue west to the abutment or pillars immediately east of the most easterly railroad track, and from there on to John street the cost should be divided as the commission deems equitable and just.
In our opinion the order should be and is affirmed.