110 Kan. 274 | Kan. | 1922
The opinion of the court was delivered by
The plaintiff commenced this action under section 8462 of the General Statutes of 1915 to recover the cost of rebuilding and repairing a bridge situated principally on the right of way of the Chicago, Rock Island and Pacific Railway Company. Judgment was rendered for the plaintiff, and the defendants appeal.
The petition alleged that the bridge constituted a part of the approach to a crossing of the railroad and a public highway; that the bridge was washed out by high water; and that the plaintiff expended $764.33 in rebuilding and repairing it. A verified account of the bill for material and work was attached to the petition. The plaintiff introduced a plat or map of the immediate vicinity of the bridge, introduced the verified account, and rested. The defendants
“Let the record show that the demurrer to the evidence of the plaintiff will be first considered by the Court, and that any evidence introduced by the defendant will not'be considered until the demurrer shall be determined. In case the demurrer should be overruled the evidence of the defendants will then be considered and passed upon. You may proceed with that in the record, gentlemen. It cannot prejudice you.”
The defendants then introduced their evidence. Findings of fact and conclusions of law were made by the court as follows:
“1. The grade of defendant railway company at the crossing in question is about six feet above the natural level of the land at the crossing.
“2.' At the time the railway company made its fill across said highway there was a culvert or bridge across Bull Creek practically where the present bridge is, and said culvert or bridge was about five feet lower than the present bridge and about two feet above the natural level of the bottom land just south of said culvert.
“3. Soon after the railroad grade was built at said crossing a fill was made in the highway, and a new bridge was built at about the same grade with the present bridge.
“4. The bridge built at or about the present grade was built in 1887 and shortly after the railroad crossing was put in, and said bridge was destroyed by a flood and the present bridge was built and paid for by McPherson County.
“5. Demand was made by the plaintiff on the agent at the depot in McPherson by the plaintiff to repair said bridge, and the bridge was never repaired by the defendants or any of them.
“6. The bridge across Bull Creek is on the right of way of the defendant railway company a very small corner which is cut by the right of way line.
“7. The approach to the crossing at the time the grade was built would extend beyond and inelüde the bridge across Bull Creek.
“8. It was necessary in order to make a proper approach to make the fill in the highway from the railroad crossing to the bridge and to build the bridge at practically the present height.
“conclusions op law.
“1. When a railroad crosses a highway on a fill that puts it above the level of the highway as it was constructed before the railroad was built then the railroad company is bound in law to construct an approach to within ten feet of the railroad crossing to such a distance as may be necessary to reach the highway below, and not make the grade more than seven and one-half per cent.
“2. The bridge in question being a part of the. approach to the railroad crossing, it was the duty of the railroad company under Section 8462, General Statutes of 1915, to repair said bridge or rebuild it when it was destroyed by flood.
“It follows that the plaintiff is entitled to judgment for the .cost of rebuilding said bridge.”
“It is hereby made the duty of every person or corporation owning or operating any railroad crossed by a public highway to make and keep in good repair, good and sufficient crossings for such road over their tracks, including all the grading, bridges, ditches, and culverts that may be necessary to make a safe crossing as hereinafter provided.”
(It does not clearly appear whether the bridge was washed out before or after'April 7, 1919, the date on which chapter 242 of the Laws of 1919 took effect.) By this statute, whenever it becomes necessary to grade, bridge, or ditch in making an approach to a railroad crossing, it is incumbent on the railroad to do that work. It is as much the duty of the railroad to "build a bridge if needed as a part of the approach as it is to throw up a grade.
The defendants argue that if the railroad had not been built, it would have been necessary for the county to build a bridge across Bull creek, and that therefore the defendants are not liable. They cite State, ex rel., Lancaster Co. v. C., B. & Q. R. Co., 29 Neb. 412, where it is said that:
“The public authorities are required to build that part of the highway within the right of way which they would have been required to make had the railroad not been constructed.” (Syl. ([ 2.)
That principle was adhered to by the supreme court of Nebraska in the case of Missouri P. R. Co. v. Cass County, 76 Neb. 396. In City of Iola v. Railway Co., 97 Kan. 242, 155 Pac. 45, this court said:
“A railway company which constructs a railroad over a street of a city is bound not only to make a suitable crossing, but to "maintain the same as long ns it continues to occupy the street, and to that end it may be required to build and maintain a bridge at the crossing of a highway if such a structure is rendered necessary by the construction of the railroad.” (Syl. ¶ 2.)
This argument is avoided by the eighth finding of fact where the court in effect found that the bridge was made necessary by the building of the railroad.
Section 10'of the federal control act (40 U. S. Stat. 456, Act March 21, 1918, ch. 25) contains the following language:
“That carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this Act or any other Act applicable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by-' and against such carriers and judgment rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be ma'de thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government. . . . But no process, mesne or final, shall be levied against any property under such Federal control.”
In Mo. Pac. R. Co. v. Ault, decided by the United States supreme court June 1, 1921, this language is found:
■ “The plain purpose of the above provision was to preserve to the general public the rights and remedies against common carriers which it enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies might interfere with the needs of Federal operation. The provision applies equally to cases where suits against the carrier companies were pending in the courts on December 28, 1917; to cases where the-cause of action arose before that date and the suit against the company was filed after it, and to cases where both cause of action and suit had arisen or might arise during Federal operation.” (41 Sup. Ct. Rep. 593, 595.)
4 A. L. R. 1710-1714 contains an extended note on the “Right of action against public utility.” This language is there found:
“Under the Act of Congress of March 21, 1918, and the Joint Resolution of July 16, 1918, no restriction is placed upon the right of action against public utilities while under Federal control. Whatever uncertainty may exist from the interpretation of the orders of the Director General of Railroads as to the*279 proper forum and other restrictions attempting to impede the rights of litigants, it is generally conceded that a right of action remains unimpaired.”
A supplemental note is found in 8 A. L. R. 9.83-987, the first paragraph of which in substance repeats the above-quoted language. See, also, annotations in 10 A. L. R. 976, 11 A. L. R. 1453, and 14 A. L. R. 236. In the last note is found this language:
“According to the recent cases no judgment should be rendered against a carrier in a cause of action arising during federal control.”
If “actions at law or suits in equity may be brought by and against such carriers and judgments written as now provided by law,” judgment in this action ought to be rendered against the railroad company. This cause of action arose during federal control of the railroads but was not caused by that control, nor did the cause of action arise out of such control. The obligation that is sought to be enforced arose when the railroad was built, has existed continuously from that time to the present, and no reason has been shown why the judgment was not properly rendered against the railroad company.
The judgment is affirmed.