Opinion by
Mr. Justice Mitchell,The bill and cross-bill were considered together by the court below, and it will be convenient to follow the same plan. The substantial controversy in these appeals arises on the cross-bill.
The facts as found by the court are not in dispute. The Franklin and Jamestown railroad located its tracks on Buffalo street in the city of Franklin in 1867, with the express consent of the city, given by ordinance. It is conceded that the railroad company derived no additional authority from the ordinance, but a reference to it is relevant as bearing on the present equities between the parties. The court found that the entry on the street was made under and in conformity with the provisions of the general railroad act of 1849, and that the tracks were built and have been maintained “ as such roads usually are constructed and maintained,” with the exception of not now being in good repair. The railroad, however, owing to *506the formation of the natural surface of the ground, was partly-built on an embankment which interferes with the general use of the street by the public, and there is not sufficient or proper drainage for water under the track, resulting at times in an accumulation on the westerly side. For this condition of things, however, the court finds that “ the railroad company is not alone at fault.” No grade of the street was ever established by the city until after these suits had reached final hearing and the first opinion of the court had been filed.
The facts are found very clearly and explicitly by the learned judge below, and the law in general correctly stated. But we are of opinion that its application was more severe on the appellant than the equities between the parties will sustain. The location of the track Avas with the express consent of the city, and the method of its construction had been acquiesced in for thirty years. For the present inconvenient condition of the street the court found that the railroad was not alone at fault, and further, that just prior to these suits the railroad proposed “ to place the track in proper condition, conforming to the grade of the street as established by the city, at any reasonable time the city might undertake the improvement of the street.” This was substantially all that the equities of the city entitled it to, and the offer should have been accepted. By its refusal the city made itself responsible for the subsequent litigation, and the relief now awarded to it must MIoav the general lines of the rejected proposition. So much of the decree therefore as requires the appellant to grade the entire Avidth of the street, and to proceed in advance of the city’s action, must be stricken out. The city should carry out the grade established by ordinance, and, concurrently or subsequently, the railroad should conform its tracks to such grade. In regard to drainage the duty is primarily on the city, but such additional Avork or expense in providing an adequate system as may result from the presence of the tracks in the street should be done or paid for by the railroad. If the parties cannot agree on this the court may upon supplemental bill determine any questions arising in regard to the matter.
In one other respect the decree is also too broad. The part of the track in dispute, though still claimed by the railroad to be part of its main line, is now used principally as a switch or *507branch to move cars to and from its yard and to receive and deliver freight (and perhaps passengers) to points not easily reachable by the main line. This within reasonable limits is a legitimate use of the road, and the court found that it “ would not exceed on the average once in a month.” The second paragraph of the decree must therefore be altered so as not to make the prohibition absolute, but only against such use as will unnecessarily and unreasonably occupy the street and interfere with the use thereof by the general public.
The decree is reversed and directed to be modified in accordance with this opinion. Costs of the whole proceedings to be paid by appellees.