Montana Attorney General Opinion 15-343

Opinion No. 343 Cities and Towns-Street Railways- Grades of Streets-Streets, Changing Grades of. HELD: If and when the City of Butte avails itself of the right given hy law and the franchise ordinance enacted by it, and changes the grades of Park and Arizona Streets and Utah Avenue or any of them, then the Butte Electric Railway Company becomes obligated to raise or lower its tracks thereon at its own expense so as to make the grades thereof conform to the newly established grades of the streets. September 20, 1933 'Ve have your communication of re- cent date in the language following: "Herewith is a copy of a letter from the District Engineer of the Bu- reau of Public Roads, requesting your Ol}inion as to whether or not it is the duty of the Street Railway Company to raise their tracks in Butte to con- form to the new construction grade which is being established and to pave between the tracks and outside the rails to the ends of the ties . "Under the provisions of the Na- tional Industrial Recovery Act, cer- tain types of projects may be under- taken \vithin the limits of incorporat- ed cities and towns, using 100% Gov- erlllnent funds. Such improvements have been recommended by the High- way Commission to the Bureau of Public Roads on Park Street in Butte and also on Arizona Street-Utah Av- enue. Both streets have Street Rail- way tracks on them. We have been auyised that the Street l{ailway Com- pany is financially unable to raise the tracks and pave between them and that the State law does not require such work to be done by the Street Railway Company." Chapter 56, Part IV, Political Code of 1921, relates to the creation of spe- cial improvement districts in cities and towns. Section 5238 thereof, so far as 232 OPINIONS OF THE ATTOR~EY GENERAL material here, provided that "when- e\'er any portion of the surface of a street is occupied or used by any per- son, firm, or corporation under a fran- chise for railway or street railway purposes, the costs and expense of mak- ing such improvements between the rails and for one foot on each side thereof shall be paid by the person, firm, or corporation owning such rail- way; and where double tracks of rail- way are laid along a street or streets, such person, firm, or corporation own- ing such railway shall pay the cost of making of such impro\'ement or im- proyements between such tracks and between all switches, turn-outs, and spurs." At the legislative session of 1925, the paragraph just quoted was amended so as to read as follows: "Wheneyer any portion of the sur- face of a paved street is occupied or used for railway or street railway purposes, it shall be and continue to be the duty of the owner or operator of such railway or street railway to fully repair any injury or damage to such pavement caused by such rail- way or street railway either in the operation of its cars or in the laying or repair of its tracks, and in case of a failure or refusal of such owner or operator so to repair such pa\'ement within a reasonable time after notice. by the city council, the city council is authorized and empowered to cause such repairs to be made and to assess the cost thereof to such owner or operator and to enforce collection thereof as in the case of taxes." (Sec- tion 1, Chapter 163). It would appear, therefore, that it was the intention of the legislature to relieve a street railway company there- after of the burden imposed by Section 5238 in its original form and to compel it to do the things required by Section 5238 as amended. (Worcester v. Wor- cester Conso!. St. R. Co., 196 U. S. 530, 49 Law Ed. 591; 60 C. J. 280; 4 Mc- Quillin's Municipal Corporations, Sec- tion 1774). Section 5039, Reyised Codes 1921, as amended, gives a City or town council power "to license and authorize the construction and operation of street railroads, and require them to conform to the grade of the street as the same are or may be established" (Subd. 13), and "to grant the right of way through the streets, avenues, and other property of a City or town for the purpose of street or other railroads. (Subd. 66). The ordinance of the City of Butte which granted the Butte Electric Rail- way Company, or its predecessor in interest, a franchise for the construc- 0 tion and operation of a street railroad on Park and Arizona Streets and Utah Avenue required it to make the grades of its tracks conform to the then sur- face grades of said streets and av- enue, or to any surface grades or estab- lished grades thereof, or to any grades thereof that may be hereafter estab- lished, at the option and in accordance wi th the direction of the city council, or of its authorized committee or repre- sentative. Section 5039, as amended, also em- powers a City or town council "to es- ta'blish the grade of any street, alley, or a \·enue. and when the grade has been established, it must not be changed except by a vote of the major- ity of the council, and not then until the damage to property owners, caused h~' the change of grade, has been as- sessed and determined by three dis- interested appraisers who must be ap- pointed by the mayor and confirmed b~' the council, who must make an ap- praisement, taking into consideration the benefits, if any, to the property. and file their report with the clerk within ten days after receiving notice of their appointment, and the amount of damages so assessed must be ten- dered to the owner or his agent before any change of grade is made." (Suhd. ti8) . If and when the City of Butte avails itself of the right given it by law and the franchise ordi.nance already re- ferred to and changes the grades of Park and Arizona Streets and Utah Avenue, or any of them, then the Butte Electric Railway Company becomes ob- ligated to raise or lower its tracks thereon at its own expense so as to make the grades thereof conform to th€ newly established grades. In the absence of a statutory pro- dsion of charging the cost of conform- ing tracks to the grade of the street, the owner of the tracks is liable for such cost, (City of Little Rock vs. Cit- OPII\IOI\S OF THE ATTORXEY GENERAL 233 izens St. Ry. Co., 19 S. W. 17; Ham- mond, W. & E. C. Ry. Co. ". State Highway Commission, 152 X. E. 806; City of Syracuse v. New York State Rys., 189 N. Y. S. 763; City of Burl- ington v. Burlington Traction Co., 124 AU. S57; City of Reading v. United Traction Co., 52 Atl. 106; 60 C .• T. 278).