This is an appeal from an order of the district court overruling a demurrer to a complaint. The complaint is based upon an order, of the Eailroad Commission of the State of North Dakota, issued on the 25th day of July, 1914, directing and requiring the Chicago, Milwaukee, & St. Paul Eailway Company to construct and maintain a viaduct or passageway across its right of way, under its track, in the town of Marmarth. The relief demanded is a compliance with the order of the Board of Eailroad Commissioners. Upon this appeal the appellant argues that the complaint fails to state a cause of action in that, (1) it is not alleged that the point or place where the underground passageway is required to be constructed is upon any street, alley, or public ground, or that the same is upon a public or private highway; (2) that there is no authority in the Board of Eailroad Commissioners to establish such a highway over or across the depot grounds and right of way of the defendant; (3) that the *102establishment of a public passageway over the right of way or depot grounds of defendant company would involve a deprivation of property without due process of law; and (4) that to so extend a street or highway across the depot grounds and right of way would involve a taking of property now appropriated to a public use and a subjection of the same to another use not authorized by statute.
In the view that we take of this case, the contentions of the appellant are in no way decisive of this appeal. The complaint, aside from its formal allegations as to the official character and personnel of the Bail-road Commission and as to the defendant and its business, is merely a recital of the proceedings had prior to the issuance of the order of the Commission, coupled with a statement of the substance of the order and an allegation of noncompliance therewith by the defendant. It is specifically alleged, though we do not deem it important, that the order made was within the power and jurisdiction- of the Board of Bailroad Commissioners. In our opinion the complaint contains every allegation that is essential to a complaint under § 4132, Comp. Laws 1913. It nowhere appears in the complaint that the municipal authorities of the village of Mannarth have not taken the steps necessary to extend a village street across the right of way of the railroad company at the point where the order required the building of the subway. It does not even appear that such steps on the part of the village authorities were ever necessary. For aught we know, the- railroad at this point may intersect an established highway, the use of which might have been discontinued at the time the railroad was constructed on account of the high grade. The court will not, upon a demurrer, assume the nonexistence of facts which, if they did not exist, would render the order, of the Bailroad Commission untimely and inappropriate. We are not prepared to say, however, that there is a rigid order of chronological sequence in the extension of a highway by the village authorities across a railroad right of way, and the ordering by the Bailroad Commission of the construction of a necessary safety device in the shape of a subway. We do- not understand it to be seriously contended on behalf of the respondent that the Bailroad Commission has authority to lay out or extend highways across railroad rights of way, but it is contended that in so far as the establishing of *103a highway is a prerequisite to the relief demanded in the complaint, the existence of such fact.should be assumed as against a demurrer. There was no appeal from the order, and every fact requisite to have made the order regular and valid when made is impliedly alleged when the order is made the basis of relief. If, upon a trial of the issues framed by the complaint and the answer to be filed, it should appear that there is no legally established highway' at the point in question, the district court will have ample power to enter a conditional decree requiring compliance with the order whenever the highway or street shall be legally extended. The proceeding is equitable in its nature, and the court is given ample authority to administer the appropriate relief.
Finding no provision of the statute granting the power, we are of the opinion that the Board of Bailroad Commissioners has no authority to establish a highway across the right of way of the defendant company. But in response to the contention that the establishment of a public highway would involve a deprivation of property without due process of law, and the taking of property now appropriated to a public use' and subjecting it to another use not authorized by law, we need only cite the case of Ashley v. Minneapolis, St. P. & S. Ste. M. R. Co. post, 147, 163 N. W. 727, just decided by this court. In so far as compliance with the order of the Bailroad Commission may involve an expenditure of money by the defendant railroad Company, we are of the opinion that it is hut the fulfilment of an obligation which rests upon the railroad company by reason of the character of its business, for which it is not entitled to reimbursement or compensation. The order of the Bailroad Commission, being an exercise of the police power of the state, must be justified as a reasonable measure for the protection of the lives and property of the public, or as being reasonably required for the safe conduct of the defendant’s business. For necessary expenditures in this direction the railroad company is not entitled to reimbursement. State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 98 Minn. 380, 28 L.R.A.(N.S.) 298, 120 Am. St. Rep. 581, 108 N. W. 261, 8 Ann. Cas. 1047; affirmed in 214 U. S. 497, 53 L. ed. 1060, 29 Sup. Ct. Rep. 698; Northern P. R. Co. v. Minnesota, 208 U. S. 583, 52 L. ed. 630, 28 Sup. Ct. Rep. 341; Cincinnati, I. & W. R. Co. v. *104Connersville, 218 U. S. 336, 54 L. ed. 1060, 31 Sup. Ct. Rep. 93, 20 Ann. Cas. 1206.
The order appealed from is affirmed.