Henry Billings Brown

“ While the modern policy of railway engineering usually tends to the abolition of grade crossings, there is no hard and fast rule upon the subject; and it may well be that the exigencies of a certain street or locality may demand that travel shall descend to the level of the railway, rather than ascend to a bridge built over the track. ”

“ The ordinances of February 7, 1893, were not beyond the powers of the common council with respect to the improvement of its streets. While in 1887 overhead bridges might have seemed a better and safer plan of crossing the railway than crossing at grade, the subsequent growth of the city may have demanded a different policy in 1893. It is hardly possible that the approaches required to reach an overhead bridge, which was some 10 or 12 feet above the general level of the ground, should not have affected, to a certain extent, the value of the adjoining property as city lots ”

“ Such powers, however, are personal to the municipalities themselves, and, being conferred for the benefit of the whole people, in the absence of authority to that effect, cannot be bestowed, by contract or otherwise, upon individuals or corporations, in such manner as to be beyond revocation. Whatever construction be given to the ordinance of December 20, 1887, it cannot be held to stand in the way of a power to make such changes as the growth of population may seem to require. ”

“ City of New York, 5 Cow. 538, the corporation of the city had conveyed lands for the purposes of a church and cemetery, with a covenant for quiet enjoyment, and afterwards, pursuant to a power granted by the legislature, passed a by-law prohibiting the use of these lands as a cemetery. It was held that a corporation could not by contract abridge its legislative power, and that this was not a breach of the covenant which entitled the party to damages, but was a repeal of the covenant. ”

“ Pursuant to this authority, and to a city ordinance, a formal agreement was entered into between the city and the railroad company that a certain street should be opened to public use and travel; its grade established and fixed for the purpose of having the street cross the railroad at such a height above the track as would permit the free operation of the railroad under the street, and prevent the dangers of a level crossing. The railroad, on its part, contracted to build a bridge over its track. It was held that the city had power to make the contract ”

“ The language of this ordinance is rather that of a license than that of a contract. The railway is authorized to erect new bridges of a certain construction, provided that the company shall also build sufficient approaches and grade to each of said bridges, and keep them in good repair. The ciry itself agrees to do nothing, except to permit gravel to be taken from its gravel bed, without charge, for the construction of such approaches. ”

“ In that case an act of the legislature of Connecticut abolishing grade crossings, as a menace to public safety, was held to be an exercise of the police power of the state, and applicable to the charter of a railroad corporation, which was subject to alteration and amendment by the legislature. The supreme court of Connecticut held that the statute operated as an amendment to the charters of the railroad companies affected by it ”

“ It was said that, although 'the plaintiff may have suffered inconvenience and been put to expense in consequence of such action, yet, as the act of the defendants is not unlawful or wrongful, they are not bound to make any recompense. It is what the law styles 'damnum absque injuria.' Private interests must yield to public accommodation. One cannot build his house on the top of a hill in the midst of a city, and require the grade of the street to conform to his convenience at the expense of that of the public.' To the same effect are Callender v. ”

“ This court affirmed the ruling of the supreme court of Connecticut, saying that 'the governmental power of self-protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulation in particulars essential to the preservation of the community from injury.' See, also, 2 Dill. ”

“ But, aside from the general power of municipalities to care for and improve their streets, an express power is given by section 2640 of the Revised Statutes of Ohio to the common council to care for, supervise, and control 'all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation,' and 'to keep the same open and in repair and free from nuisance.' Under a similar power granted by congress to the corporation of the city of Washington, it was held by this court in Smith v. ”