out of contract relations will not be enforced by writs of mandamus. It is well settled that the use of writs of mandamus is limited to the enforcement of obligations imposed by law; and duties of 223 a corporation arising wholly out of contract obligations, and not imposed by express law, or by the conditions of its charter, will not be enforced by such writs: State v. Trustees etc., 114 Ind. 389, 16 N. E. 808; Indiana etc. R. Co., v. Rinehart, 14 Ind. App. 588, 43 N. E. 238; 19 Am. & Eng. Ency. of Law, 2d ed., 742. .... .... The general railroad act of this state grants to a railroad company power "to construct its road upon or across any . . . . highway . . so as not to interfere with the free use of the same, which the route of its road shall intersect, in such manner so as to afford security for life and property; but the corporation shall restore the . . . . highway thus intersected to its former state, or in a sufficient manner not to unnecessarily impair its usefulness": Burns' Rev. Stats. 1901, cl. 5, sec. 5153; Rev. Stats. 1881, sec. 3903. It has been frequently held that under this statute a railroad company is required to make safe and convenient crossings at the intersection of all highways, whether the same were established and opened before or after the construction of the railroad: Louisville etc. R. Co. v. Smith, 91 Ind. 119: Lake Erie etc. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743; Evansville etc. R. Co. v. State, 149 Ind. 276, 49 N. E. 2; Egbert v. Lake Shore etc. R. Co., 6 Ind. App. 350, 33 N. E. 659; Baltimore etc. R. Co. v. State, 159 Ind. 510, 65 N. E. 508; Lake Erie etc. R. Co. v. Shelley, 163 Ind. 36, 71 N. E. 151; 3 Elliott on Railroads, sec. 1102. Section 5172a of Burns' Revised Statutes of 1901 (Acts 1895, p. 233, sec. 1) is as follows: "That it shall be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley in any incorporated town or city in the state of Indiana, which said street, avenue or alley has been, or shall hereafter be, by addition, plat or otherwise, dedicated to the public use, to properly grade and plank or gravel its said road and tracks at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue, in such manner as to afford security for life and property at said intersection and crossing." It is thus seen that the duty which appellee seeks to have performed by this proeceding is one specifically enjoined by law and imposed by 224 appellant's charter. The performance of a similar duty has been enforced in numerous instances by proceedings of this character: Indianapolis etc. R. Co. v. State, 37 Ind. 489; Evansville etc. R. Co. v. State, 149 Ind. 276, 49 N. E. 2; Chicago etc. R. Co. v. State, 158 Ind. 189, 63 N. E. 224; Chicago etc. R. Co. v. State, 159 Ind. 237, 64 N. E. 860; Baltimore etc. R. Co. v. State, 159 Ind. 510, 65 N. E. 508. The provisions of the franchise ordinance requiring the railway company to make and maintain safe crossings were simply declaratory of the law as it existed independently of the city's enactment, and it cannot be fairly said that the omitted duty complained of was one growing wholly out of contract obligations. In granting a franchise to use its streets, alleys or public places, the city exercises its delegated legislative powers, and for that purpose could not by contract barter away its future legislative control over such highways and places. It is the plain and continuing duty of a city to prevent the unnecessary obstruction of its streets, and to see that the same are kept in good order and safe for use by the public. The railway company, a quasi public corporation, is created to facilitate and not to impede travel, and from its nature as well as charter obligations the duty arises of keeping its intersections with highways in good repair and in condition for safe and convenient use by the public. In the case of Indianapolis etc. R. Co. v. State, 37 Ind. 489, this court disposed of a contention like that now made, in the following language: "But this ordinance is not a contract between the railroad company and the city, but simply a grant of the right of way upon certain conditions and duties subsequent, to be performed by the company. And the proper means by which a corporation may be compelled to perform a plain duty-and the duty is plain in this case-is by a writ of mandate": Chicago etc. R. Co. v. State, 158 Ind. 189, 63 N. E. 224. See, also, Seymour Water Co. v. City of Seymour, 163 Ind. 120, 70 N. E. 514, and cases cited. 225 It is next urged that the relator could have constructed the crossing and brought an action for the cost of the same and the penalty as provided in the ordinance, and thereby have secured complete and adequate redress without resort to this extraordinary remedy. It is undeniable that either under the provisions of the ordinance or of sections 5172a5172e of Burus' Revised Statutes of 1901 (Acts 1895, p. 233), the city might have pursued the course suggested; but the query remains whether such a remedy must be held adequate and exclusive. This question has been answered in the negative in the case of Indianapolis etc. R. Co. v. State, 37 Ind. 489, the court saying: "Can it be said, then, that this would be an adequate remedy? It would seem to us not. Or shall it be said that it is the duty of the city to fill up and grade the streets and alleys so as to make them convenient for passage, etc., at her own expense, in the first instance, and then be compelled to bring an action against the railroad company for reimbursement? If one have a right of action for a grievance against another, either for damages or for the specific performance of an act, it is certainly not an adequate remedy to him, to be compelled in the first instance to lay out one hundred dollars for the use of another, and then to have the right simply to recover back his money so laid out by him, and perhaps to get legal interest on his money." The fact that, in addition to the cost, a specific penalty may be recovered in lieu of legal interest does not affect the principle. It would further seem to be more expedient and conducive to safety that such work as elevating or lowering 226 railway tracks and constructing crossings should be done by skilled workmen acting under orders from the company concerned, rather than by the inexperienced employés of the municipality. Our conclusion is that mandamus was an available remedy to enforce performance of this duty, notwithstanding the provisions for a different procedure: State v. New York etc. R. Co., 71 Conn. 43, 40 Atl. 925; State v. Minnesota etc. R. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656. It is further insisted that the choice of materials to be used for making the crossing should have been left to the company, and that the provisions of the mandate requiring the company "to plank the crossing" were not justified by the terms of the ordinance or by the facts stated in the writ. The ordinance does not purport to specify the materials required to make the crossing most convenient for use. The statute requires the railroad "to properly grade and plank or gravel its said road and tracks at its intersections." Conceding that, in the first instance, the company had an option. as to materials to be used, providing the crossing was put in such condition "as to afford security to life and prop erty," it does not follow that after failure and refusal to construct any crossing, it may justly complain of a choice of materials made by the court. Appellee's petition asked for a plank crossing, the statute authorized the court to prescribe that material, and upon the facts and circumstances shown the court was warranted in requiring the crossing to be planked. The writ was not subject to the criticism of being too specific, but properly directed particularly what should be done in the construction of the crossing: 3 Elliott on Railroads, sec. 1106; Chicago etc. R. Co. v. State, 158 Ind. 189, 63 N. E. 224, and cases cited. The demurrer to the alternative writ was rightly overruled. The return of the defendant below contained in substance the following averments: That the Terre Haute and Logansport 227 Railway Company is a corporation owning and operating a line of railroad from Terre Haute to Bronson street in the city of South Bend. On December 1, 1898, the Terre Haute and Logansport Railway Company, to whom the original franchise was granted, ceased to own said railroad. On October 28, 1903, defendant was served with notice from the board of public works of the city of South Bend to open Calvert street, formerly called Elmira street. across its tracks, and to plank the crossing in the usual manner, and that it failed and refused to do said work because of the following facts: At the time of the passage of said franchise ordinance the place where Calvert, or Elmira, street crosses said railroad tracks was outside the corporate limits of said city, and in 1887 was taken into the corporate limits of the town of Myler, and in 1892 said town was annexed and became a part of said city. On August 12, 1891, Frank S. Stover and thirteen others filed with the board of trustees of said town a petition for the establishment of a street, to be known as Elmira street, over the ground where the relator now claims said street is located. The special proceedings had in connection with the establishment of said street are set out in detail, tending to show that the Terre Haute and Logansport Railway Company was not legally notified of such proceedings. It is shown that prior thereto said company had executed an outstanding deed of trust on its property, and that the trustee therein named was not notified of said proceedings; and subsequently said deed of trust was foreclosed, and upon sale said property was duly transferred to the defendant Terre Haute and Logansport Railway Company. It is further alleged that in the year 1901 the relator was claiming that by virtue of the proceedings of the board of trustees of the town of Myler, said Calvert, or Elmira, street was located and established across the right of way, land, tracks and yard of the Terre Haute and Logansport Railway Company which, because of the special facts 228 pleaded, said company in good faith denied; that on January 17, 1902, for the purpose of adjusting and settling said conflicting claims, the relator, acting by its board of public works, entered into a contract whereby said railway company agreed to construct a steel viaduct over its tracks at said alleged street, and the relator agreed to construct the approaches thereto, and each to perform other agreements therein set out, which contract was in writing and was by ordinance duly ratified by the common council of said city. The viaduct agreement and ratifying ordinance are set out in full as part of the return. The agreement provided that in lieu of a grade crossing, the railway company should construct a steel viaduct above and across its tracks at Elmira street, with a paved roadway, thirty feet wide and sidewalks on each side eight feet wide, the bottom of the same to be twenty-two feet above the top of the rail, such work to be done when the city shall have money in hand sufficient to build the approaches to said viaduct, and through its board of public works and common council shall have ordered the approaches built, appropriated the necessary funds, and notified the railway company thereof, in writing; and when completed the city should "maintain and keep in repair said approaches and said viaduct for all time." It is further alleged that the construction of said viaduct would cost thirty thousand dollars, and that the railway company is now and at all times has been able, ready and willing to perform all its agreements in said contract contained, but that the relator has performed none of its agreements and given said company no notice to construct said viaduct, and that the public had acquired no right to use the alleged street across its yard and tracks, except in the manner set out and by the special proceedings of the board of trustees of the town of Myler, which it is charged were wholly insufficient. Wherefore defendant says it should not be com |