From a judgment in condemnation proceedings awarding it damages for the extension of a street across its right of way and railroad tracks in the town of Emery, the defendant has appealed. No question as to the sufficiency of the award is raised. The appeal raises merely questions of law.
The respondent is an incorporated town, existing under the provisions of chapter 15, Rev. Pol. Code. Sections 1441, 1442, Pol. Code, provided:
Section 1441: “The board of trustees shall have * * * power to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve roads, streets, alleys, avenues, sidewalks, wharves, parks and public grounds, and vacate the same, and to construct and keep in repair bridges, culverts and sluice-ways, * * *”
Section 1442: “Any incorporated town shall have the power to condemn and appropriate private property for all such public uses and purposes as provided for by this article, which power shall be exercised upon a resolution therefor, passed by a two-thirds vote of the trustees of such town, which shall state the purpose and extent of such appropriation; and the proceedings thereunder shall be as is provided for by chapter 40 of the Code of Civil Procedure.”
■ The Legislature of 1913, by chapter in, amended the above-quoted powers, contained in section 1441, Pol. Code, by adding thereto the following:
- “To extend, any street, alley, or highway, over and across, or to construct any sewer under or through any railroad tracks, *587right of way or land of any railway company within the corporate limits.”
After this amendment became effective, and on November 24, 1913, the board' of trustees, by a unanimous vote, passed a resolution opening and extending the west 47 feet of Third Street south across the defendant’s right of way to connect with Third street in an addition to the town on the south -side of said right of way. Said resolution further recited the necessity of condemn-’ ing and appropriating said strip of land, and that a petition be filed in the circuit court praying that the just compensation to be made for such property so appropriated and condemned be ascertained by a jury, and that further proceedings be had, as provided by chapter 40, Code Civ. Proc.
[1] It is first contended by appellant that the- amended section 1441, Pol. Code, does -not authorize condemnation proceedings. That is true, It -does not purport to do so; but section 1442,- Pol. Code, does authorize condemnation proceedings in the cases ■ provided by article 2, c. 15, Pol. Code, which article embraced sections 1438 to 1442, inclusive. When section 1441 was amended, then section 1442 applied to the amended section 1441 with like force and effect as though section 1442 were enacted simultaneously with or subsequently to the amended section 1441. It is therefore clear that there is express authority in the town by the vote of two-thirds of its trustees to appropriate and condemn the right of way of a railway company for street purposes. The board in this case has acted unanimously.
[2] It is next claimed that the power of the railway company, under - its right of eminent domain, is superior to that of the plaintiff, and that, the railway company having exercised its right, the city has no further power; that it has been exhausted by its exercise by the defendant. It is further contendéd that the action of the city violates section 10, art. x, of the Constitution of the United States and amendment 14 thereto, in that it amounts to an impairment of the obligation of contract between the railway company and the state and is a taking of its property without due process of law. There surely is not the least merit in.'any of these contentions.. 9 Ency. U. S. S. C. Rep. 494. The police power of the state to subject private property-to public use was not surrendered when the railway company obtained this right .of *588way, nor has there since been any such surrender, even if there could be.
In Chicago, B. & Q. R. Co. v. Illinois ex rel. Grimwood, 200 U. S. 561, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175, the court said:
“But the railway company, in effect, if not in words, insists that the rights which it asserts in this case are superior and paramount to any that the public has to use the water course in question for the purpose of draining the lands in its vicinity, although such water course was in existence, for the benefit of the public, long before the railway company constructed its bridge. This contention cannot, however, be sustained, except upon the theory that the acquisition by the railway company of a right of way through the lands in question, and the construction on that right of way of a bridge across Rob Roy creek, at the point in question, carried with it a surrender by the state of its power, by appropriate agencies, to provide for such use of that natural water course as might subsequently become necessary or proper for the public interests. If the state could part with such a power, held in trust for the public (which is by no means admitted), it has not done so in any statute either by express words or by necessary implication. When the railway company laid the foundations of its bridge in Rob Roy creek, it did so subject to the rights of the public in the use of that water course, and also subject to the possibility that new circumstances and future public necessities might, in the judgment of the state, reasonably require a material change in the methods used in crossing the creek with cars.”
In Louisville & Nashville Ry. Co. v. City of Louisville, 131 Ky. 108, 114 S. W. 743, 24 L. R. A. (N. S.) 1213, the court said:
“When the state grants to a public or private corporation the right to exercise a part of its sovereign power to take private property for a public use, it always does so with the implied understanding that future control over the property so taken is not surrendered by the state. It reserves for the public good the power to take again, and as many times as may be necessary, so much of the property as is needful for the use of the public, al*589though this may in some cases go to the extent of destroying the first use.”
So here, when the railway company obtained its right of way and laid its tracks across this land, it did so subject to the rights of the public, defined, or to be thereafter defined, by the Legislature acting within its police power. It is the right of eminent domain in the public that is superior in this case, not the right of the railway company. It is true, as claimed by the appellant, that its property is devoted to a public use, but that use does not make of it public property. It is still private proprety and subject to appropriation and condemnation for public use for street purposes.
[3,4] The proceedings in this case were strictly regular. They were authorized by express legislative enactments. Such ,enactments violated no .provision of the federal Constitution nor of the state (Constitution.
The judgment appealed from is affirmed.