Montana Attorney General Opinion 15-353

Opinion No. 353 Cities and Towns-Street Railways -Grades of Streets-National IndustIial Recovery Act HELD: 'Vhere the federal govern- ment undertakes to improve the streets i,f a city without changing the grade as established h~- the city, a street railway company. operating a street car line on said street, may not be re- quired 'to pay a part of the expense of such improvement. October 4, 1933. Your request for an opinion has been received. It is so lucid and complete that we take pleasure in reproducing it as follows: "Under the provisions of the Na- tional Industrial Recovery Act, high- way imprO\-ements may he under- taken on the Federal Aid System within the limits of incorporated cities and towns, to be financed ell- tirely with Government funds. Such improvements ha'-e. been recommend- ed by the Montana Highway Com- mission to the Bureau of Public Hoads on Park Street in Butte and also on Arizona Street-Utah Avenue. Both streets have street railway tracks upon them. "The Federal Bureau of Public Hoads has requested an opinion as to whether or not the Street Hailwav Company is liable for the cost of th~ new paving between the tracks. It appears that the Federal Government will be able to pay the cost of the entire new pavement from curb to curb, including the cost of paving hetween the tracks, unless the pres- ent law requires the Street Railway Company to pay the cost of the new pa ving bet wen the rails. "The grade of the street, that is the present curbs, gutters and sidewalks, will not be changed in any way. The grade of the street railway tracks will not be changed, except for a slight raise of one or two inches in some places to accommodate the new paving. "The existing paving between the tracks throughout most of the dis- tance consists of granite blocks ahout l'ix inches high and about four inches thick. It is intended to remove thesc hlocks, which are badly worn and entirely unsatisfactory, and fill in this space with cov.crete, raising the tracks slightly at the same time. so that the new thin asphaltic surface which is to be placed on top of the existing pavement outside of the rails will be flush with the top of the rails. The project, therefore, constitutes an entirely new paving and the street grade, as established by the city, is not changed. "Will you kindly furnish us your opinion as to the liability of the Street Hailway Company as to pay- ment of any portion of this project." It is made the duty of the Street Hnilway Company to fully repair any injury or damage to the pavement of a street within a special improvement (Ustrict caused -by the operation of its cars or the laying or mending of its tracks on such street. (Sec. 5238, RC.M. 1921, as amended by Sec. 1, Chnpter 163, Laws 1925). It is also made the duty of the Street Ilailway Company to raise or lower its tracks at its own expense so as to make the grade thereof conform to any new grade of the street or streets on which such tracks are laid estab- lished by the City of Butte through resolution or ordinance. (Sec 5039, RC.M. 1921, (subd. 13) as amended hy Section I, Chapter 20, Laws 1927; City of Little Rock Y. Citizens St. Ry. Co., 19 S. W. 17; Hammond, W. & E. C. Hy Co. Y. State Highway Commis- sion, 152 N. E. 806; City of Syracuse Y. New York State ·Rys., 189 N. Y. S. 763; City of Burlington v. Burlington 240 OPI~lOXS OJ!' THE A'l'TOHXEY GENERAL Traction Co., 124 Atl. 857; City of Reading v. United Traction Co., 52 Atl. 106; 60 C. J. 278; Opinion No. 343, this ,olume.) But there is no law or ordinance which requires the Street Railway Company to bear a part of the expense of the impro,ements contemplated. That heing so, it cannot, of course, be forced to assume any financial obH- ~ation in the matter. (60 C. J. 267). Besides, it may be said that neither the City of Butte nor the Street Rail- "'ay Company is directly in,olved.