dissenting:
I cannot concur in the majority opinion. The findings contained therein and the evidence show beyond question that Y street from Eighteenth to Twenty-third is in lowT ground and is subject to occasional overflows from flood-waters, especially back-waters from Antelope creek, which have interfered with the operation of the plaintiff’s track at that point; that, in reliance upon the profile and its right to maintain its track at the elevations shown thereby, it has extended its road beyond the city limits seven miles, has expended a large sum of money in so doing, and since 1906 has operated its road, seiwing a portion of the city and outlying districts not reachéd or served by any other *134railway, and has been carrying about 1,109 passengers daily; that there is a low pocket at' Twenty-first and Y streets which is boggy and marshy; that the plaintiff built its track across such marsh according to its profile, some 18 inches above the natural surface of the ground, and placed cinders and other material under the ties in the embankment and roadway tó give it sufficient stability to make its operation safe and possible.
It further appears that fire hydrants have been inserted on Y street upon a grade level with the top of the plaintiff’s track, and under the track is a sewer connection with manholes on a grade level with its surface; that Y street has been little used except for travel on plaintiff’s trains; that the tracks of the Missouri Pacific Railway, on what would be X street if the same was opened, and those of the Chicago, Rock Island & Pacific Railway cross the plaintiff’s tracks in a northerly direction along Eighteenth street a part of the way; and the elevations of said roads and tracks are not fixed or established by any ordinance, nor are said roads or the tracks of either of them required by ordinance to conform to the established grades of the streets where they intersect, but are several feet above the natural surface and the established grade of said streets; that the grade which requires the lowering of plaintiff’s tracks 18 inches at the intersection at Twenty-first and Y streets will make Y street the lowest street from Dudley on the north to X street on the south, and will cause the surface waters to flow into and stand in Y ■street; that the defendant is about to interfere with the tracks of the plaintiff at Y street, and tear up and destroy .and lower the same about 18 inches, and thus compel the plaintiff to bring its tracks down to the proposed grade, which will remove and destroy the foundation of the plaintiff’s embankment; that in seasons of freshet when waters collect it will be impossible for the plaintiff to maintain and operate its track and railroad at such a grade.
It clearly appears that no adequate provision has been made for taking care of the flood and surface waters or securing their passage from plaintiff’s track; that a por*135tion of the plaintiff’s roadbed will thereby be rendered useless, and the public will be deprived of its train service; that the establishment of a grade on Y street 18 inches below the profile and elevation of the plaintiff’s track will not benefit any one; that such grade is unnecessary, is contrary to the public interest, and a large portion of the property owners, some 42 in number, abutting on or adjacent to said street, have protested against the lowering or fixing of the grade below the profile and elevation of the plaintiff’s tracks; that the defendant should be es-topped to interfere with the plaintiff’s grade, except for the public good and by an ordinance duly enacted In that behalf, and it appears that no ordinance whatever has been enacted by the city instructing or directing the plaintiff to lower its tracks on Y street to the grade thus established.
As I view the record, the foregoing facts are established by a preponderance of the evidence. The district court made certain findings which accord substantially with the .foregoing, and I am unable to see how its findings could have been otherwise.
The supreme court of California in Pacific Telephone & Telegraph Co. v. Eshleman, 166 Cal. 640, 663, said: “But in the exercise of the police power in the regulation of public utilities, while each case which is rested upon the exercise of that power must be subject to its own individual consideration, there are certain fundamental principles which are not disputed and which govern all. The first of these is that this power goes merely to the regulation of the public utility, and that when' an order' passes beyond proper regulation it amounts to a taking of the property, and the order is then referable, not to the police power, but to the power of eminent domain. * * * Another principle, quite as important and quite as fundamental, is that Taking’ of property within the meaning of the constitution is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of its use.”
*136The police power can never be exercised to do more than to regulate the owner’s use, and cannot extend to the taking of his property from him or dispossessing him of its use and control. A street is for the use, convenience, comfort, and safety of all the people of the city — for all the users of it. Therefore, before the rights of the users of a city can be interfered with, there must be some necessity for the interference of the police power by the state. After enumerating the extent and authority of the police power, the supreme court of the United States in Lawton v. Steele, 152 U. S. 133, said: “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.”
The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. The facts of this case show that the plaintiff carries more than 1,100 passengers daily, not accessible to other roads; that the street is little used for travel or traffic aside from such use; that the interests of the public generally, as well as the abutting owners, have been disregarded and have not been considered; that the grade established at Twenty-first and Y streets will make a cesspool in floods and freshets. This is not only unduly oppressive upon individual lot-owners abutting upon said street, but upon the general public as well, and it is shown by the testimony that the accomplishment of that purpose is destructive and will defeat every purpose for which the paving is laid. The testimony discloses that to lower the grade of the plaintiff’s railroad to the proposed street grade is an arbitrary interference with its private property. This should not be done under the guise of the exercise of police power.
In City of Seattle v. Columbia & P. S. R. Co., 6 Wash. 379, the railroad was given the power of condemnation in *137a public street, similar to that conferred upon railroads by the statutes of this state. The city of Seattle had authority to establish grades and regulate the laying of railways thereon, or to prohibit the same entirely. From the facts in that case it appeared that the railroad tracks had been destroyed by fire, and after such destruction the city undertook to raise the grade of the street. The court, in speaking of the power to improve and grade streets, said: “A city’s power to improve and graduate its streets is undoubtedly a continuant power, not exhausted by its first exercise, and inalienable by the corporate authorities, and such authorities are the ones to judge of the expediency or necessity of its exercise. * * * That under this power the city’s right to establish and execute a new and higher grade on Columbia street at the place in dispute follows as a matter of course must be taken with some degree of limitation.” The court after saying that the raising of the grade would greatly impair the usefulness of the tracks, and thereby destroy the franchise and make it impossible for the railroad company to perform certain duties imposed upon it, the opinion proceeds as follows: “Under such a state of facts, we think the well-settled rule of law is that the city’s right to graduate its streets or alter the grades thereof is not an absolute one, to be exercised at its option, regardless of its effect upon others, hut it is a power which must be reasonably exercised with reference to the rights of parties interested. It cannot be exercised to the extent of working a destruction of such a franchise previously granted. This would amount to an unauthorized taking of property; and none of the cases cited by appellant, in our opinion, support such contention, as none of them go to the extent of holding that the city may so alter and change the grades of its streets as to work a destruction of a valuable property under such circumstances, but the right to change the grades of streets is sustained upon the ground that the same may be done consistent with the preservation of rights previously acquired by others.”
In Houston & T. C. R. Co. v. City of Dallas, 98 Tex. 396, 419, 70 L. R. A. 850, 863, the court sums up the question *138as follows: “If it be true that there is to be no benefit to the public from the proposed change, or a benefit which is inconsiderable when compared with the detriment to be suffered by the respondent, who will say that it is just and reasonable to subject respondent to such expense and loss as is averred? * * * When it is found that a proposed action is to be fraught with such consequences as those averred in the answer, a public exigency correspondingly great and urgent should be required in its support.”
It is said in the majority opinion that the city had no power, by contract or otherwise, to alienate its right of control over its streets. It must be remembered, however, that, when the plaintiff sought to enter the city of Lincoln with its railroad and construct its tracks therein, the statutes of this state gave the plaintiff the right to condemn its right of way through the streets of the city in case no agreement in relation thereto could be made with the city council. Recognizing-this fact, the council entered into an agreement with the plaintiff by which it was authorized to construct its tracks along Y street, and while the city could not, by contract or otherwise, wholly abandon its right to the control of its public street, still it had the power to contract with relation to the reasonable use thereof, and, having entered into such a contract, it should be required to abide by its terms, unless there has been a change of conditions such as requires it to abrogate the contract and resume the exercise of its power of control over the street in question.
As I view the record, no such public necessity has been shown, and it not appearing that the district court erred in its findings and decree, but on the contrary it appearing by the-findings set forth in the majority opinion, and by the undisputed evidence, that the judgment of the district court was right, I am of opinion it should be affirmed.