There is no evidence that the bridge was built under agreement as provided by Act No. 92, Pub. Acts 1893 (1 Comp. Laws 1915, § 4750 et seq.). The prime purpose of that statute was to provide a means of compelling separation of grades when there was public necessity therefor. In keeping with a settled policy of law, an agreement for construction and maintenance was permitted, that the proceedings to compel such separation might be avoided. The statute contemplates in such case a division of the expense of construction and maintenance between the parties. That the bridge was built by the railroad on its own initiative and because of change in location of its tracks, that it paid the whole cost of constructing the bridge, and for 20 years has kept it in repair, shows, not an agreement under such statute, but, as contended by the attorney general, an exercise of a statutory right of the railroad to pass under the highway (2 Comp. Laws 1915, § 8243), and a recognition of its common-law duty, also declared by the statute just cited, to restore the highway to its former condition of usefulness. And the duty to *Page 18 restore is continuous and includes the duty to repair. 22 R. C. L. p. 889; 53 L.R.A. 900.
The order of the commission was within its powers. It is affirmed.
WIEST, C.J., and MOORE and STEERE, JJ., concurred with CLARK, J.