This suit was brought by the City of Mena to condemn a right-of-way for a street over the property of the appellant. Judgment was rendered for appellant for the sum of $50, which included only the value of the right-of-way taken. Appellant offered to introduce evidence that it was required to еxpend $181.39 in the re-arrangement and shifting of its tracks made necessary by the opening of the street, and that it had already expended $137.37 in installing the сrossing. But this evidence was excluded hy the court upon the ground that the railway company was not entitled to compensation for these еxpenses and the correctness of this holding presents the only question for our consideration. The proof shows that the railway compаny has a number -of tracks across the proposed street and that the construction of this crossing will necessitate the “shifting” of these tracks аnd the removal of a switch-stand.
Since the opinion of this court in the cases of St. Louis S. W. Ry. Co. v. Royall,
In the case of St. Louis S. W. Ry. Co. v. Royall, Mr. Justice Biddick, speaking for the court, said: “It would seem that under this provision of the law it was the duty of the viewers to assess the damages sustained by the company by reason of the laying out and еstablishing the roadway across the track, unless the statute permits highways to be established across the right-of-way and roadbed of the compаny without compensation for damages. But we find nothing in the statute that gives such authority. The statute provides that where any public- road or highway shall сross any railroad, the railroad company shall construct the crossing, and -also keep it in repair. Kirby’s Digest, -section 668Í. Now, this does not say that any public road may be established .and opened across á railroad without compensation, but that when public highways are established аcross a railroad, the railroad company must construct the crossing and keep it in repair. We think it may well be inferred from the language of this statute that no compensation was intended to be paid the company either for constructing the crossing or for keeping it in repаir. When a highway is' established across a railroad track in this State it becomes its duty under this statute to construct the crossings .and keep it in repair. This is а police regulation and similar provisions are found in the statutes of other states. As nothing is said in the act about compensating the company for this burden which the law places upon it, we think that none can be implied. It seems plain to us that none was intended, for it is not usual to allo\f compensation for expense of obeying a police regulation. Chicago, B. & Q. R. Co. v. Chicago,
And in the case of St. Louis & S. F. Rd. Co. v. Fayetteville, supra, the court, again speаking through Mr. Justice Biddick, said:
“In the case of C., B. & Q. Ry. Co. v. Chicago,166 U. S. 226 , 255, the Supreme Court of the United States, after quoting decisions to the effect that no damages could be claimed, eithеr by a natural person or corporation, on account of being compelled to render obedience to a policе regulation designed to secure the common welfare, said: ‘We concur in these views. The expenses that will be incurred by the railroad cоmpany in erecting gates-, planking the crossing, and maintaining flagmen, in order that its road may be safely operated — if all that should be required — necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the State. Such expenses must be regarded as incidental tо the exercise of the police powers of the State. What was obtained, and all that was obtained, by the condemnation proсeedings for the public was the right to open a street across land within the crossing that was used, and was always likely to be used for railroad traсks. While the city was bound to make compensation for that which was actually taken, it can not be required to contpensate the defеndant for obeying lawful regulations enacted for the safety of the lives and the property of the people. ’ ’
In the case of City of Grafton v. St. Paul, etc., Ry. Co.,
“An examination of the foregoing cases will disclose, we think, that the conflict in the holdings of these courts is mainly due to the difference in the statutes of the respective statеs; but some of them are based upon the decisions in Massachusetts, in which State there are express statutory provisions requiring compensаtion for these structural changes. Cases decided upon a statute such as the one in Massachusetts can not possibly have any weight in cоnstruing a statute so widely different as the one in this State.”
The court announced its conclusion as follows:
“In our opinion the better rule, as the one we shall adopt, is that the railroad company should be compensated for the diminution in value of its exclusive right to the use, for railway purposes, of the property sought to be condemned, caused by the use of the same by the public for a street crossing, and that the items proved by appellants for grading, planking, .and constructing sidewalks at such crossing, are not proper elements of damage. The trial court, in view of the state of the record, there being no рroof relating to the proper measure of damages, correctly instructed the jury to return a verdict for nominal damages merely. We аre supported in our views by what we consider the weight of authority and the best considered cases.”
The court cited as supporting that cоnclusion a number of cases, including our case of St. Louis & S. F. Rd. Co. v. Fayetteville, supra. This North Dakota case is reported in 22 L. R. A. (N. S.) page 1, where an extended discussion of this and collateral questions can be found.
It follows from what we have said, and from the previous decisions of this court cited above, that the appellant was not entitled to the damages claimed, and the judgment of the court below is, therefore, affirmed.