ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.
MR. JUSTICE DAY delivered the opinion of the court.
This case comes here from the Supreme Court of Minnesota, to review a judgment of that court affirming a judgment in mandamus of the St. Louis County Court in that State, which required the Northern Pacific Railway Company, plaintiff in error, to repair a certain viaduct in the city of Duluth, carrying the railway company's tracks over Lake avenue.98 Minnesota, 429. The Northern Pacific Railway Company is the successor in title of the St. Paul and Duluth Railroad Company, which derived its title from the Lake Superior and Mississippi Railroad Company. The Lake Superior and Mississippi Railroad Company, whose rights and obligations have devolved upon the Northern Pacific Railway Company, had the following provisions in its charter:
"SEC. 6. The said company may construct the said railroad across any public or private road, highway, stream of water or watercourse if the same be necessary: Provided, That the same shall not interfere with navigation; but said company
shall return the same to their present state, or in a sufficient manner so as not to impair the usefulness of such road, highway, stream of water, or watercourse, to the owner or to the public."
"SEC. 17. This act is hereby declared to be a public act, and may be amended by any subsequent legislative assembly in any manner not destroying or impairing the vested rights of said corporation."
The Lake Superior and Mississippi Railroad laid its first track across what is now Lake avenue in 1869. Lake avenue was graded and improved for public traffic in the winter and spring of 1871, and since that time it has been in continuous use as a public street. In the year 1891 the amount of business on Lake avenue and the number of tracks therein had become so great that the constant passage of cars and engines endangered the safety of the public. The city of Duluth thereupon prepared plans and specifications for the construction of the viaduct over Lake avenue, and made a demand upon the railroad company to construct the same. The railroad company, after considerable negotiation, in which it denied its obligation to build the viaduct, entered into a contract with the city of Duluth, which is set up in its answer in this case as a full defense to the right of the city of Duluth to require the repair of the viaduct at the railroad company's expense. This contract was dated September 2, 1891, and provided that the city should build the bridge or viaduct upon Lake avenue to carry that street over the railroad tracks which had theretofore crossed said avenue at grade. The railroad was to contribute to the expense of the construction in the amount of $50,000, and the city undertook, for the period of fifteen years, to maintain the part of the bridge over the railroad's right of way, and to perpetually maintain the approaches. The city built the bridge at an expense of $23,000, in addition to the $50,000 which was paid by the railroad company.
In 1903, the viaduct and its approaches having become dangerous for public use, the city of Duluth acted within the
power conferred on it by law to require railroad companies to construct bridges and viaducts at their own expense at public railroad crossings, and having investigated the subject, approved the plans prepared by the city engineer, and on the thirteenth of July, 1903, passed the following resolution:
"Resolved, That the repairs set forth in said specifications are necessary and proper, and are demanded by the public safety and convenience.
"Resolved, further, That said repairs are reasonable and practicable for the repairs of said viaduct and its approaches; and that said repairs as set forth in said specifications are hereby adopted and approved.
"Resolved, further, That this council does hereby demand that the Northern Pacific Railway Company immediately proceed to repair said viaduct and approaches in accordance with said specifications.
"Resolved, further, That a copy of this resolution be forth-with served upon the Northern Pacific Railway Company in the same manner as service may be made of ...