pelled to open the alleged street across its track and yard at grade.

229 Appellant's counsel assert and argue an insufficiency of the notice and return of service in the special proceedings of the board of trustees of the town of Myler for the establishment of Elmira street, a want of notice to the mortgagee of the property to be appropriated, and, in consequence, a taking of property without due process of law in violation of the fourteenth amendment to the constitution of the United States.

Appellee's counsel insist that the only question presented to and considered by the circuit court upon the demurrer to the return was the validity of the agreement therein pleaded.

Appeals are provided primarily to enable parties to secure a review of the decisions made by trial courts, and, generally speaking, upon appeal parties will be held to the position and theory assumed and maintained by them in the court below. In the preparation of issues for trial it is necessary to require parties to adopt and make their pleadings conform to some definite theory. When a pleading has been framed upon a manifestly definite theory, it must be good upon that theory or it will not be good at all. A pleading must be judged from its general tenor and scope, and when it assumes to proceed upon a distinct theory, it cannot be made good on some other by casting into it isolated statements, which if fully pleaded in separate paragraphs might constitute a cause of action or defense: Western Union Tel. Co. v. Young, 93 Ind. 118; Western Union Tel. Co. v. Reed, 96 Ind. 195; Balue v. Taylor, 136 Ind. 368, 36 N. E. 269; 21 Ency. of Pl. & Pr. 652.

The manifest theory of the pleader was to show that a reasonable and bona fide controversy existed as to the validity of the proceedings for the establishment of Elmira street by the board of trustees of the town of Myler, as an inducement to and consideration for entering into the compromise agreement pleaded, and that said contract having been legally executed and not rescinded, 230 the railway company was thereby absolved from the duty declared upon, to construct and maintain a grade crossing at the point in controversy. "A single paragraph of answer cannot perform the double function of denying the cause of action, and of confessing and avoiding it. It must be one thing or the other, but it cannot be both; and its character, in this respect, must be

determined from the general scope of its averments": Kimble v. Christie, 55 Ind. 140. The return under consideration was intended to confess and avoid the duty sought to be enforced, and its sufficiency must be determined upon that theory. This conclusion forbids a discussion of the legality of the various steps taken in the proceedings to establish Elmira street, as well as the constitutional question raised.

The only question remaining for decision is the validity of the contract made between the railway company and the city, for the construction and maintenance of a viaduct. The charter of the city of South Bend authorized its board of public works to "design, order, contract for and execute the erection of any culvert, bridge, way, viaduct, tunnel or aqueduct within such city, or to enter into a contract with any company or individual for the joint erection and maintenance of such company or individual and such city of any such structure. Provided, that such contract shall

in all cases be submitted by said board to the council of such city and approved by them by ordinance before the same shall take effect": Burns' Rev. Stats. 1901, sec. 4190n8, Acts 1901, p. 198, sec. 72.

It is appropriate to note that the necessity, if any, for the viaduct provided for by the agreement pleaded was created by the existence and operation of the railroad. If the street was lawfully established across the tracks and ground of the railway company, a fact not denied by the return as we construe it, then the duty of making and maintaining a safe and convenient grade crossing devolved upon 231 the company; and in such case the board of works would not be justified either in erecting or maintaining a viaduct solely at the city's expense. The authority, if any existed, for entering into the contract must be found in that part of the statute which empowered the board, with the approval of the council, to make a contract with any company for the joint erection and maintenance of such a structure. The power of the city to make this contract is in nowise affected by the circumstance that the agreement was the result of a compromise and settlement of an existing controversy. It is made to appear that the work contemplated has not been performed, and so far as disclosed no rights have attached by virtue of the agreement. The viaduct as planned was to

be forty-six feet wide, being fourteen feet less than the width of the street, and was to be maintained solely by the city "for all time."

Municipal corporations of this state are given exclusive control over their streets and alleys. This authority is conferred for the benefit of the public, and from it arises a continuing duty on the part of the city to exercise legislative control over its streets and alleys at all times and places when demanded by the public good. A municipal corporation has no power, by contract, ordinance or by-law, to cede away, limit or control its legislative or governmental powers, or to disable itself from performing its public duties: 1 Dillon on Municipal Corporations, 4th ed., sec. 97; Elliott on Roads and Streets, 2d ed., sec. 657; Schipper v. City of Aurora, 121 Ind. 154, 22 N. E. 878, 6 L. R. A. 318; City of Peru v. Gleason, 91 Ind. 566; City of Indianapolis v. Indianapolis etc. Coke Co., 66 Ind. 396.

If the contract relied upon by appellant is valid its obligations are secure against impairment, not only by the city of South Bend, but also by the legislature itself; and the viaduct, once constructed, must be maintained by the city to the end of time, and the company and its successors be forever relieved of all duties 232 now owing or hereafter to be imposed on account of the grade crossing. It is not at all improbable that the future policy of the state and the safety and convenience of the people may require the elevation or lowering of railroad tracks through cities and populous districts, and the preservation of ordinary highways upon natural grades free from obstructions. It is impossible to anticipate the changes which in the future may be found expedient, and the police regulations which may become necessary at this particular crossing. The viaduct contract in question provides for single maintenance by the city, instead of joint maintenance by both the parties, and it purports to bind the city and to limit and deny for all time its legislative and police control over this part of the street. That these provisions of the agreement are unauthorized and invalid is not only approved by reason and sound policy, but well supported by authority.

In the case of State v. Minnesota etc. R. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656, the supreme court of Minnesota, in holding a very similar contract void, said:

"It cannot be that the common council of 1888, by the passage of a resolution providing for the construction of a bridge sixty feet in width in a street one hundred and twenty feet wide, to be perpetually maintained by the city, could limit or control the legislative action of its successors, or could abdicate its right, as future necessity should require, to compel the construction and maintenance of a bridge or viaduct of such dimensions, width, and construction as should, as nearly as may be, restore the street to its former condition of usefulness."

In the case of Gale v. Village of Kalamazoo, 23 Mich. 344, 9 Am. Rep. 80, in discussing a kindred contract, Cooley, J., said: "What would be thought proper for the village this year might be found worse than useless the next, and no official prescience could determine with absolute or even tclerable certainty what changes a few years might 233 work. Indeed, it is impossible to predicate reasonableness of any contract by which the governing authority abdicates any of its legislative powers, and precludes itself from meeting in the proper way the emergencies that may arise. Those powers are conferred in order to be exercised again and again, as may be found needful or politic, and those who hold them in trust to-day are vested with no discretion to circumscribe their limits or diminish their efficiency, but must transmit them unimpaired to their successors': See, also, New York etc. R. Co. v. Village of New Rochelle, 29 Misc. Rep. 195, 60 N. Y. Supp. 904; Brimmer v. City of Boston, 102 Mass. 19; Milhau v. Sharp, 27 N. Y. 611, 84 Am. Dec. 314; City of Oakland v. Carpentier, 13 Cal. 540; Mott v. Pennsylvania R. Co., 30 Pa. 9, 72 Am. Dec. 664; Mayor etc. v. Bowman, 39 Miss. 671; Dingman v. People, 51 Ill. 277; Matthews v. City of Alexandria, 68 Mo. 115, 30 Am. Rep. 776.

The agreement entered into between the relator and the railway company was, on the part of the city, an unwarranted surrender of legislative power and control over the crossing, and an unauthorized assumption of the burdens of another, and is invalid and void. We have already shown that the specific duty of making and maintaining a grade crossing was imposed upon the railway company, and, the agreement relied upon to provide a viaduct in lieu

of the crossing being invalid, it follows that the return was insufficient, and the demurrer thereto rightly sustained.

Finding no reversible error, the judgment is affirmed.

The Duty of Railroad Companies to construct or repair viaducts, which is imposed upon them by a city charter and ordinance, may be enforced by a writ of mandamus, especially where authority to proceed in that manner is conferred by the charter: Chicago etc. R. R. Co. v. State, 47 Neb. 549, 53 Am. St. Rep. 557. And a writ of mandamus will issue in a proper case on relation of a telephone company to compel a street railway company to place guard wires above its trolley wires at crossings of the latter with the telephone wires, as required by the city ordinances: State v. Janesville etc. Ry. Co., 87 Wis. 72, 41 Am. St. Rep. 23.

OHIO FARMERS' INSURANCE COMPANY v. VOGEL. [166 Ind. 239, 76 N. E. 977.]

INSURANCE-Waiver of Proof of Loss.-Denial of liability by an insurance company within the time fixed for filing proof of loss is a waiver of the right to such proof. (p. 385.)

INSURANCE-Waiver of Proof of Loss-Authority of Adjuster. When an insurance company has been notified of a loss under a policy issued by it, and sends an adjusting agent to inquire into the loss, and he, while engaged in or at the conclusion of such business, refuses payment and denies all liability of the company under the policy, his action, if within the time stipulated in the policy for the making of formal proofs of loss, is a waiver of such proof by the company. (p. 385.)

CONTRACTS-Execution and Enforcement by Courts.-Courts cannot make contracts for the parties to an action. They can only enforce the contracts as made. (p. 386.)

INSURANCE-Construction of Contracts.-Policies of insurance are to be construed like any other contracts. (p. 386.)

INSURANCE-Forfeiture-Knowledge of Breach.-Courts, in the absence of fraud, will refuse to enforce a condition of forfeiture on an insurance policy in favor of an insurer who has knowledge of such condition broken when he delivers the policy, accepts and retains the premium. (p. 386.)

INSURANCE-Breach of Condition-Election.-The breach of a condition in an insurance policy that it shall be void if the building insured now is, or shall hereafter be, occupied by a tenant," does not render the policy void in case the premises are so occupied, but voidable merely at the election of the insurer, and when an elec tion has once been exercised, the insurer will be confined to its choice. (p. 386.)

INSURANCE-Breach of Condition-Retention of PremiumElection. The retention of the premium on a fire insurance policy after knowledge of the breach of a condition involving a right to forfeiture is an election to waive such breach and continue the policy