On Motion for Rehearing.
Appellee arduously insists that we have arrived at an erroneous conclusion, because as it contends, the effect of our decision is that appellant possesses the power to compel appellee to reconstruct its road, although there appears to be no power conferred upon appellant for such purpose either by statute or franchise.
It is asserted that the effect of the decision is to impute to and confer upon municipalities powers over street railways of such potentiality as to render it possible for a municipal government to destroy a street railway company by imposing upon it financial burdens which cannot be met as incidents to compliance with requirements of reconstruction.
Such argument can be neither refuted nor sustained without reference to facts peculiarly applicable to it, and in our disposition of this case no such facts enter into the consideration of it.
The question is: Has appellant alleged facts which, if true, disclose a situation which warrants extending the relief sought? The effect of the demurrer is to say that, granting all appellant’s allegations to be true, yet the pleaded facts disclose nothing which a court will hear and base relief upon.
Appellee’s counsel admit in argument of the motion for rehearing that in their judgment article 1010 of Revised Oivil Statutes has no application whatever, and that nothing which appellant seeks to compel it to do by mandamus has such pertinence to paving that, if it were done by appellant or under its direction, a lien could be fixed or collection from appellee for the cost effected under the provisions of article 1010 or of any statutory provision related to this article.
Nothing appellant seeks to have appellee do can be done by appellant and charged to appellee by virtue of any specific statutory provision. Appellant is clothed with no special authority in the paving statutes to perform any of the acts or supply any of the material it seeks to require of appellee and charge the cost therefor against appellee or fix a lien against appellee’s property on the theory that such work and material are necessary incidents of street paving.
So far as the pleadings disclose conditions, appellant is endeavoring to exercise its lawful control over a street upon which ap-pellee has a lawful right and duty to operate its street railway. In the discharge of its duty appellant encounters a condition created by appellee which renders impossible the performance of appellant’s obvious power and duty unless appellee can be compelled to *682transform the obstructing conditions by compliance with the necessities alleged.
It is not contended that appellant has no power to pave any street which, in its judgment and discretion, the imblic interest demands to be paved, provided such paving can be done without entailing an expenditure by appellee alleged by appellant to be necessary, for definite reasons, in connection with paving the street subjected to appellee’s use. The effect of this position is that, whenever the public interests in the streets conflict with the ascertainment by appellee of its own financial interests in operating its property upon the streets, the former should yield to the latter.
Of course, appellant cannot arbitrarily impose an unreasonable requirement upon appellee or lay upon it a financial burden of a confiscatory nature. But no question of this nature arises from the pleadings, with which alone we are dealing.
The conditions which appellant seeks to require appellee to remove by compelling it through the instrumentality of mandamus to do all the acts alleged to be necessary before the street - can be paved effectively present the same situation as would exist if the prospective paving already were constructed on all parts of the street except that occupied by the roadbed, although appellee seeks to draw a distinction between the relative rights of the parties in such respective situations. These conditions bear the same relation to the rights of appellant in the one instance as in the other. If paving had already been constructed on the parts of the ' street attiguous to the roadbed, would appel-lee have the right to continue to leave its tracks lower than the paving in places and protruding higher in others so as to render, general travel on the street unsafe and uncomfortable? Would it have the right in such situation to maintain cross-ties and rails so laid as to move up and down when cars pass over them and' break and destroy the paving laid on other portions of the street solely upon the ground that the city is powerless in any event to cause it to remedy these conditions? Surely these questions call , for an answer adverse to appellee. It is no answer to them to say that appellant may require an abandonment of the street by ap-pellee and compel it to remove its equipment therefrom. Such proposition has no place in this case in its present attitude. The presumption is that the railway’s presence on the street conforms to the mutual rights and 'desires of the parties.' Why distinguish appellant’s rights and powers with reference to needed paving about to be laid from those with reference to paving already constructed? In the one instance the alleged conduct ( of' appellee prevents necessary paving; In '(he other it would impair or destroy the paving if it already existed. Why should appellant be without the right to have the described conditions relative to appellee’s roadway in the street removed immediately preceding or contemporaneously with the act of paving, thereby' eliminating the peril which is alleged, by reason of facts stated, to be certain to destroy and render worthless any paving constructed without the immediate removal of such conditions as those depicted as caused solely by appellee’s use of the street?
The case as presented, we have concluded, involves no question whatever of the right of appellant to require appellee to pave or to charge it and incumber its property for paving. The petition in the case, under the application of the test of a general demurrer, states a cause of action. It recites allegations of facts which disclose that appellee has deliberately declined to perform acts and amend conditions in its track and roadway which it is under a lawful duty to do. The petition itself, we think, fails to disclose or admit the existence of any facts to justify the nonperformance of a lawful duty appellee has the burden to discharge under the allegations. Whatever facts or circumstances may exist to justify the alleged attitude of appellee, if any do exist, are not before us, and it is not our province to indulge in conjecture or speculation as to whether or not such facts and circumstances exist.
The motion for rehearing is overruled.