I concur in the decision by the majority that the city council was not acting legislatively, under the police power, in this case, and that the apportionment was a matter of judicial review.
However, the facts in this case were undisputed, and I construe the resulting equities from them as did the trial judge. After holding that it was not just to require one railroad to construct a safeway across the right of way or any part of the right of way of another railroad to remove the menace to the traffic at the *Page 448 crossing, and referring to the fact that all three railroads had for years equally divided the expense of maintaining a watchman at the crossing, and that, when a railroad pays for making a safe passage over its own right of way, it ought not to be called to contribute to that part of the bridge over its neighbor's right of way, he continued:
"But this reasoning does not apply beyond the limits of the rights of way. The crossing above the rights of way being made safe, the railroad must make that safe overhead crossing accessible to traffic. This can be done only by approaches. Approaches to the overhead crossing are as necessary as the overhead crossing. Each of the three railroads in this case owes the duty not only to make the crossing over its right of way safe, but to make that overhead crossing accessible. This is a common duty. Approaches are as necessary to one as to the other. Neither one of these overhead crossings can be reached without approaches, and the approach to one of these overhead crossings is the approach to all three. Manifestly, the three should contribute equally to the construction of the approaches. . . . The apportionment of costs for approaches on any basis other than equally would likewise in this case be unjust and arbitrary."
In my opinion, therefore, the apportionment made by the trial judge was just and equitable.
I consider that the judgment of the trial judge should be affirmed, and dissent from the reversal thereof. *Page 449