(dissenting). The amount involved in the present case is considerable, but the principle involved is of far greater importance. I am so strongly convinced that the public burdens are wrongly distributed by the judgment that I feel it a duty to state the grounds on which that conviction is based.
The fundamental propositions are these: (1) The law contemplates that a railway company crossing a highway shall not impair its usefulness and shall, in case the crossing is thereby made dangerous to' life or an obstruction to travel, construct and forever maintain such substituted way or ways as may be best calculated to restore the safety and convenience of the original way. (2) The viaduct in question here is in part (the extent- of which part is easily ascertainable) a substituted way for the Muskego avenue crossing which was made dangerous by the defendant’s tracks, and hence the defendant should rightfully pay its proportionate share of the cost of repairs of the viaduct.
There will probably be little disagreement as to the first proposition and Í shall spend little time on it. Since 1872 the statutes of this state have provided that a railroad company constructing a railroad across a street shall restore the *548same to its former state or to such condition that its usefulness shall not be materially impaired and thereafter maintain the same in such condition against any effects produced by such railroad. Sec. 1836, Stats.
This requirement is, however, but a statutory 'recognition of a common-law principle which existed long before the passage of our statute. State ex rel. Minneapolis v. St. P., M. & M. R. Co. 35 Minn. 131, 28 N. W. 3; State ex rel. Minneapolis v. St. P., M. & M. R. Co. 98 Minn. 380, 108 N. W. 261 and cases cited in opinion. '-This-court has-approved the doctrine to» the fullest extent. Superior v. Roemer, 154 Wis. 345 (141 N. W. 250) on p. 356.
The charter of the city of Milwaukee (ch. 184, Laws 1874, sub. 48, sec. 3, subch. IV) recognized the principle by giving the city council power “to require railroad companies to construct and maintain at their own expense, such bridges, viaducts, tunnels, or other conveniences, at public railroad crossings, as the common council may deem necessary.” Doubtless similar power is conferred by most of the city charters of the state. It is to- be found in the general city charter — sub. (51), sec. 925 — 52, Stats. — and in the special charter of the city of Superior.
The authorities which hold that a city cannot contract with a railroad company to keep such a structure in repair and thus relieve the railroad company from its duty because there is no' consideration for such a contract, are numerous and decisive. Furthermore, the question has been directly decided by this court. Superior v. Roemer, supra, and authorities there cited, to which may be added Newton v. C., R. I. & P. R. Co. 66 Iowa, 422, 23 N. W. 905; Wabash R. Co. v. Defiance, 167 U. S. 88, 17 Sup. Ct. 748.
Proceeding to take up the second proposition, I freely admit that the viaduct satisfies and was intended to satisfy certain public needs not resulting from the construction of the railroad or the presence of the tracks. Here was a deep valley, four fifths of a mile wide, containing two canals run*549ning through the city, and it goes without saying that a viaduct making possible travel at grade between the two parts of the city thus separated is a municipal improvement demanded by considerations of convenience and public welfare whether there is any railroad in the valley or not. But the fact that the viaduct was demanded by and efficiently answers to such needs does not prevent it from answering other needs, i. e. the need of a safe crossing in place of the old Muskego- avenue crossing. If it does this it is in substance the Muskego avenue crossing changed to- a slightly different location, and just so far as it serves the purpose of that crossing the railway company should be required to maintain it. That the city, the railway company, and the legislature all regarded this new way and viaduct as a substitute for the Muskego avenue crossing and deemed that the proportionate share of the whole expense of the viaduct which this substitute justly represented was capable of definite ascertainment, cannot in my judgment be doubted.
The very first act passed by the legislature on the subject (doubtless at the request of the city authorities) conclusively shows that the legislative thought then was that the proposed viaduct was made necessary in part because the defendant’s tracks had made it dangerous to use Muskego avenue. This act (ch. 476, Laws 1887) requires the railway company to build the south half of the viaduct simultaneously with the building of the north half by the city, and provides for perpetual maintenance of the same by the railway company and the city in the same proportions. The railway company did not comply with this act and apparently no attempt was made to compel obedience. It is unnecessary to discuss the question here whether obedience could have been compelled or not: the chief significance of the act is that it expressed the judgment of the legislature at that time that the improvement was a joint improvement, to the expense of which the railway company should be 'required to contribute a just proportion. This could only be on the *550theory that the company had so greatly impaired the usefulness of the Muskego avenue crossing that it became its duty to provide another.
This act having failed of its purpose, ch. 231, Laws 1889, was passed, providing that the city should at once condemn the lands over which the viaduct now passes and should have power to use the lands condemned for a bridge or viaduct and any other proper street. In this act no reference is made to the railway company. Whether it had been concluded by the city that the company could not be compelled to coin-tribute to a viaduct not located on the line of Muskego avenue, or whether it was thought that it would be best to make the Sixteenth street viaduct purely a city enterprise and require the railway company to build a separate viaduct on the line of Muskego avenue, is not clear and probably not important.
At any rate it is certain that in January, 1891, the common council of the city had determined that, if the railway company was not willing to contribute its just share of the expense of the contemplated viaduct at Sixteenth street, it should be compelled to build a separate viaduct at Muskego avenue carrying that avenue over all the company’s tracks which crossed the same. This appears from two' resolutions passed by the council, the first January 12, 1891, providing for the appointment of a special committee to confer with the officers of the railway company relative to the construction of a viaduct over their tracks in the Menominee valley and as to what proportion of the expense the company would bear, and the second, passed February 9, 1891, directing the railway company to build separate viaducts, with easy approaches and on plans approved by the city engineer, over all its tracks where the same cross Muskego avenue and Thirteenth street.
This was the situation of affairs when ch. 122, Laws 1891, was passed March.30th of that year; the railway company had declined to contribute to the expense of constructing the *551joint crossing at Sixteenth street and had been ordered by the common council to build separate viaducts carrying Mus-kego avenue over all its tracks. Doubtless the defendant’s officers realized that this order was perfectly valid and capable of enforcement. Naturally enough, results began to follow very quickly; the tirpe for delay had passed, and ch. 122, Laws 1891, was placed upon the statute book.
Remembering that the railway company was at that time under order to construct its own viaduct, it becomes entirely plain that the act was the result of negotiation between the city and the company, and it becomes perfectly clear, also, that all parties interested understood that the viaduct authorized by that act was to be in part a substitute for the Muskego avenue crossing and as to such part to be paid for by the railway company. The act shows on its face that in case agreement could be reached between the city and the company? as to the just amount which the company should contribute to the expense of the viaduct, so much of Mus-kego avenue crossed by the tracks as was desired by the company was to be vacated and the crossing abolished, and, as a necessary result, the portion contributed by the railway company to the Sixteenth street viaduct accepted by the public in place of the old Muskego avenue crossing. I shall not attempt to dissect the act in order to demonstrate this. The very careful provisions requiring the vacation of those parts of Muskego avenue as soon as the company had paid its proportion of the expense of the viaduct, and the further provisions formally relieving the company of the duty to build any viaduct over any part of Muskego avenue for all time to come, however great the multiplication of tracks, leave no room for doubt on the point. So far as this crossing is concerned, Muskego avenue was to be transferred to the Sixteenth street viaduct when the arrangements authorized by this act were carried out.
Nor is it difficult to determine how large a portion of the new viaduct is in effect the Muskego avenue substitute cross*552ing. The city and the company agreed on $125,000 as the just amount which the railway company should pay for its share of the viaduct, and the engineer of the defendant, testifying on the present trial, stated that the cost of the Muskego avenue viaduct ordered to be built in 1891 (exclusive of the drawbridge over the canal) would have been $116,386. Apparently the sum agreed upon quite fairly represented the railway company’s share.' The- proportion which this amount bore to' the total cost of the viaduct would in my judgment correctly represent the proportion of the expense of repairs which the railway company should be required to pay. No agreement relieving the company of its obligation to pay this proportion could be made, because not only did the act of 1891 fail to authorize it, but no such agreement would bind the city in any event under the principles already stated.
Our statutes not only allow but provide'for making reasonable change in the location of highways and crossings which' have been made dangerous or undesirable by thé presence'óf railroad track's. Sub. (5), sec. 1828, and sec. 1836, Stats.
"To my mind that is substantially what was done in the present case by the joint affirmative action óf 'the state,.the city, arid.the company.' - If so, the viaduct has become in substance the old crossing in a changed location. True, it is •more than that: it is also a great municipal improvement demanded by'other public neéds, but that does not prevent it from being to á definite and ascertainable extent the Mus-kego avenue crossing in a different location. To hold'otherwise. seems to me to subordinate the substance of things to mere names. ' ‘
In my opinion the judgment in this case relieves the company by judicial action of a duty laid upon it not only by the common law but by statute.
Kerwin and Rosenberry, JJ., concur iri the foregoing dissenting opinion.