ON PETITION FOR REHEARING. As we stated before, the appellant company was occupying Indianapolis boulevard with its tracks subject to the right and power of the State of Indiana to require that it should, at its own expense, remove them to the middle of the street, reconstruct them there, and restore the street to condition for travel in case they should cease any longer to be in the middle by reason of the street being relocated, widened or otherwise changed, and subject to the continuing obligation on its part, imposed by the common law and by statute, as a condition of so occupying the street for business purposes, that it would as fully as possible restore the surface of the street to safe condition for travel thereon, and would at all times so maintain its tracks that they would not render it unsafe for that purpose; and it long had been occupying them subject thereto when the statute (§ 26, Acts 1919 p. 119, supra) was enacted which provides that "the Highway Commission shall have power to remove such tracks to that part of such highway outside the area to be so improved," as set out in the original opinion. See authorities there cited.
And, after that statute was enacted, the law previously in force continued in effect, and, in occupying the street with its tracks, the appellant company continued to hold subject to the duties and obligations thereby imposed, except so far as the statute expressed *Page 475 a legislative intent to the contrary. We do not find in the statute any declaration of a purpose to relieve the company from its obligation under the common law and statutes previously in force to pay the cost of relocating its tracks and restoring the street, or of a purpose to charge that expense against the State of Indiana, as represented by the State Highway Commission.
The petition for a rehearing is overruled.
Myers and Travis, JJ., dissent.