State Ex Rel. City of Miles v. Northern Pacific Railway Co. , 88 Mont. 529 ( 1930 )

There is only one major question to decide in this case: Is it the duty of the railway company to comply with the ordinance in question, and is the enforcement of such uncompensated obedience a taking of the property of the railway company without due process of law? Incidental thereto and as a side issue, which appellant claims has no place in these mandamus proceedings, the question also arises: Have the interveners any right to be parties to this action, and, if so, have they property rights on the right of way of the railway company superior even to that of the railway company and the sovereign right of the public?

The trial judge failed to distinguish between the power of eminent domain or the construction of public improvements and the authority of the state under the police power. Under eminent domain the state takes property because it is useful or necessary to the public but under the police power the state regulates, takes or destroys property because it is harmful and the property itself is the cause of the public detriment. It is important to keep this distinction in mind in the consideration of this case. As said in Patrick v. Riley, 209 Cal. 350,287 P. 455, "In the exercise of the right of eminent domain, private property may not be taken without compensation therefor, whereas, in the exercise of the police power, the use of property may be restricted or it may even be destroyed, and no legal liability arise to compensate the owner therefor." (See MilesCity v. State Board of Health, 39 Mont. 405, 412, 25 L.R.A. (n.s.) 589, 102 P. 696.)

The railroad company owes uncompensated obedience to the regulation established by the ordinance under the police power for the public health or safety and its enforcement is not an unconstitutional taking of property without compensation or without due process of law. (Lehigh Valley R. Co. v. Board ofPublic Utility Commrs., 278 U.S. 24, 62 A.L.R. 805,73 L. Ed. 161, 49 Sup. Ct. Rep. 69; New Orleans Public Service v. Cityof New Orleans, 281 U.S. 682, 74 L. Ed. 1115,50 Sup. Ct. Rep. 449; Nashville, C. St. L. Ry. Co. v. White, 278 U.S. 456,73 L. Ed. 452, 49 Sup. Ct. Rep. 189; Erie R. Co. v. Board ofPublic Utility Commrs., 254 U.S. 394, 65 L. Ed. 322, 41 Sup. Ct. Rep. 169; Denver Rio Grande R. Co. v. Denver, 250 U.S. 241,63 L. Ed. 958, 39 Sup. Ct. Rep. 450; Great Northern R. Co. v.Minnesota ex rel. Clara City, 246 U.S. 434, 62 L. Ed. 817,38 Sup. Ct. Rep. 346; Atlantic Coast Line R. Co. v. Goldsboro,232 U.S. 548, 58 L. Ed. 721, 34 Sup. Ct. Rep. 364; Cincinnati, I. Western Ry. Co. v. Connersville, 218 U.S. 336, 20 Ann. Cas. 1206, 54 L. Ed. 1060, 31 Sup. Ct. Rep. 93; State ex rel.Minneapolis v. St. Paul, M. M.R. Co., 98 Minn. 380, 120 Am. St. Rep. 581, 8 Ann. Cas. 1047, 28 L.R.A. (n.s.) 298, 108 N.W. 261; Gibbons v. Missouri, K. T.R. Co., 142 Okla. 146,285 P. 1040; Euclid v. Amber Realty Co., 272 U.S. 365,71 L. Ed. 303, 47 Sup. Ct. Rep. 114; Durham v. Southern Ry. Co., 185 N.C. 240, 35 A.L.R. 1313, 117 S.E. 17, affirmed in 266 U.S. 178, 69 L. Ed. 231,45 Sup. Ct. Rep. 51; 12 C.J. 1198; 6 R.C.L. 201.)

The law makes no provision for an intervention in a mandamus suit or for the joinder of a third party or collateral issues. It is not considered a civil action, and the court would be without jurisdiction to determine or adjudicate any rights of the interveners. (Bailey v. Edwards, 47 Mont. 363,133 P. 1095.) It is true that the writ may incidentally and as a result affect the rights of these tenants on the right of way, but that is not the prime object of the writ, and, even in California, where mandamus is considered a civil action, intervention is not permitted where the interest of the party seeking intervention is consequential, collateral, remote or contingent, or, where it would broaden the scope or function of the proceedings. (Wright v. Jordan, 192 Cal. 704, 221 P. 915; LeMesa Lemon Grove S.V. Irr. Dist. v. Halley, 195 Cal. 739, 235 P. 999.) InCommercial Nat. Bank v. Robinson, 66 Okla. 235, L.R.A. 1918C, 410, 168 P. 810, under a similar statute, intervention was not permitted because the only pleadings permitted in mandamus were the application, writ and answer.

But if this court should permit the complaints in intervention to stand as did the trial court, then it remains to be considered: Whether the interveners have the right to suspend the police power of the state and prevent the city, as an arm of the state, from adopting a reasonable regulation for the safety of its citizens. If the decision is affirmed and becomes the law of the state, then it must necessarily follow that the railway company may indirectly vest rights through contract with its tenants on the right of way superior to the rights of the railroad itself and superior even to the sovereign power of the state. The question as to the rights of the tenant on the right of way with reference to changing the grade has been answered adversely to the interveners in the case of Erie R. Co. v.Board, supra, where it was contended that the change required would necessitate a change of grade and was therefore unlawful: "This ground fails, and the company must adjust itself to the lawfully changed conditions." "Contracts made by the road are made subject to the possible exercise of the sovereign right."

In the complaints in intervention the tenants expressly admit that: "The Northern Pacific Railway Company would not be liable and could not be required to pay or reimburse plaintiff in intervention the amount of said damages that the plaintiff in intervention will and would sustain by reason of the lowering and changing of the grade." If the rights of the tenant are limited to the lease, and if the railway company, the landlord is not liable for any damages that it would cause the tenants, if it were to comply with the ordinance, why would the city be liable to such tenants? If the tenants were located away from the right of way and their property did not contribute to or enhance the dangerous condition of the crossing by obstructing the view thereof, and if the viaduct or subway extended outside of the right of way and thereby changed the grade of the street to the damage of the interveners, the rule is that the railway company would be required to make compensation to such tenants. (SeeWhite v. Southern Ry. Co., 142 S.C. 284, 57 A.L.R. 634,140 S.E. 560, and the annotations thereto in 57 A.L.R. 657.) For a case much in point see, also, Phoenix Mut. Life Ins. Co. v.City of Lincoln, 91 Neb. 150, 135 N.W. 445. (See, also,Burritt v. City of New Haven, 42 Conn. 174; Twin CitySeparator Co. v. Chicago, M. St. P. Ry. Co., 118 Minn. 491,137 N.W. 193; Morris v. Indianapolis, 177 Ind. 369, Ann. Cas. 1915A, 65, 94 N.E. 705.)

The decision of the trial court stands alone and is not supported by one single authority. If the decision be affirmed by the supreme court then it will follow that the railway companies will in the future be absolved from protecting street crossings as it would be cheaper to lease out the right of way to a tenant and thereby escape from the duty to comply with any like ordinance until damages were paid by the state to the tenants, which in many cases could not be done for lack of funds. If the tenant could claim one dollar damages against the city, there would be no limit to what might be claimed by such tenant and there would be no limit to the improvements that might be constructed on such right of way to be paid by the city and the sovereign power would be powerless to protect its citizens, because the more dangerous the tenant made the right of way by building thereon and obstructing the view, the more damages the state or city would be required to pay for the safety of the public. Right of intervention: The facts in this case, when considered in connection with the allegations of the complaints of the interveners to the effect that they each have a leasehold interest in the abutting property which will be destroyed if the change of grade of Main Street is made, as contemplated by the plans for the subway, clearly establish the fact that they each have "an interest in the matter of litigation" in order to meet the requirements of section 9088, Revised Codes 1921, in reference to intervention. (See Foster v. Coyle, 59 Mont. 444,197 P. 747; Equity Co-operative Assn. v. Equity Co-op.Milling Co., 63 Mont. 26, 206 P. 349.)

Intervention was allowed to oppose the issuance of a writ of mandamus in the following cases where the intervention statute was not as broad as ours, as the statute did not contain the word "proceeding": First Nat. Bank of Neligh v. Lancaster,54 Neb. 467, 74 N.W. 858; State ex rel. Bullion Exchange Bank v.Mack, 26 Nev. 430, 69 P. 862; Conlee v. Clay City, 31 Ky. Law Rep. 533, 102 S.W. 862; Kruegel v. Murphy Bolanz,59 Tex. Civ. App. 482, 126 S.W. 680; Johnston v. Conway,151 Ark. 398, 237 S.W. 80; State ex rel. Graeber v. Malley,17 Neb. 564, 24 N.W. 200; McBrayne v. City Council of Lowell,241 Mass. 380, 135 N.E. 311. In a comparatively recent case this court has in a mandamus proceeding, indirectly at least, recognized the interests of third persons in the proceeding and thereby indirectly recognized the right of intervention in such proceedings. (State ex rel.Larsen v. District Court, 78 Mont. 435, 254 P. 414.)

The contention of the interveners is that while this proceeding is an ordinary proceeding for a writ of mandate, it is more than that, because upon the face of the pleadings it clearly appears that necessarily involved therein is a radical change in the grade in that part of Main Street which is directly opposite to the property held under lease by the interveners. The complaints in intervention show that the right of access to these two pieces of property from Main Street will be entirely cut off, and that the right of ingress to and egress from this property will be destroyed; that it will be impossible for these parties to continue in business in these locations provided the grade of Main Street is lowered in accordance with the city ordinance and the plans and specifications for the subway which are attached to relator's affidavit. Their rights in this proceeding are based in part upon the provisions of section 14, Article III of the Constitution, which reads as follows: "Private property shall not be taken or damaged for public use without just compensation having first been made to or paid into court for the owners." (See Less v. City of Butte, 28 Mont. 27, 98 Am. St. Rep. 545, 61 L.R.A. 601, 72 P. 140; Eby v. City of Lewistown,55 Mont. 113, 173 P. 1163; Dickerson v. Okolona, 98 Ark. 206, 36 L.R.A. (n.s.) 1194, 135 S.W. 863; Searle v. City of Lead,10 S.D. 312, 39 L.R.A. 345, 73 N.W. 101; Brown v. City ofSeattle, 5 Wash. 35, 18 L.R.A. 161, 31 P. 313, 32 P. 214;Reardon v. City and County of San Francisco, 66 Cal. 492, 56 Am. Rep. 109, 6 P. 317; City of Elgin v. Eaton, 83 Ill. 535, 25 Am. Rep. 412; Rigney v. City of Chicago, 102 Ill. 64;Johnson v. Parkersburg, 16 W. Va. 402, 37 Am. Rep. 779;Atchison, T. S.F. Ry. Co. v. Armstrong, 71 Kan. 366, 114 Am. St. Rep. 474, 1 L.R.A. (n.s.) 113, at pages 136, 137, 80 P. 978.)

An abutting owner has an indefeasible right of access to and from his property to the street, a right which is appurtenant to his lot and his private property, and therefore cannot be taken away or materially impaired or interfered with even under legislative authority without compensation. (13 R.C.L., sec. 125, p. 142, and authorities cited; Minnequa Lumber Co. etal. v. Denver, 67 Colo. 472, 186 P. 539; Chicago v.Lonergan, 196 Ill. 518, 63 N.E. 1018; Chicago v. Jackson,196 Ill. 496, 63 N.E. 1013, 1135; Chicago M. St. P. Ry. Co. v. City of Minneapolis, 238 Fed. 384; Reardon v. City andCounty of San Francisco, supra; Kemp v. City of Seattle,149 Wash. 197, 270 P. 431; Walters v. Baltimore Ohio R. Co.,120 Md. 644, 46 L.R.A. (n.s.) 1128, 88 A. 47; Dickerson v.Town of Okolona, supra; case note, 35 L.R.A. (n.s.) 1195;Schimmelmann v. Lake Shore M.S. Ry. Co., 83 Ohio St. 356, 36 L.R.A. (n.s.) 1164, 94 N.E. 840; Lane v. San Diego Elec.Ry. Co., 208 Cal. 29, 280 P. 109; 29 C.J. 547; 15 Cyc. 662, 663, and note 50, citing large number of cases; Rockridge PlaceCo. v. City of Oakland, 61 Cal. App. 791, 216 P. 64;Spencer v. Metropolitan Street Ry. Co., 120 Mo. 154, 22 L.R.A. 668, 23 S.W. 126; Butters v. City of Oakland, 53 Cal. App. 294,200 P. 354.)

A leasehold is sufficient to justify the recovery of damages in case of a change of a grade which interferes with right of access to property. (City of Detroit v. Little Co., 141 Mich. 637,104 N.W. 1108.) The property located on the right of way of a railway company, which had waived any claim of damages, where a recovery is permitted at all, a tenant for years is generally entitled to recover any damages sustained by him, even though the statute simply makes provision for a recovery by abutting owners. (13 R.C.L., sec. 96, p. 107; Chiesa Co. v. Des Moines,158 Iowa, 343, 48 L.R.A. (n.s.) 899, and note, 138 N.W. 922;Bentley v. Atlanta, 92 Ga. 623, 18 S.E. 1013; Pause v.Atlanta, 98 Ga. 92, 58 Am. St. Rep. 290, 26 S.E. 489.) The word "owner" includes any person having an interest in the estate taken or damaged. (Beste v. Cedar County (Dugan v. CedarCounty), 87 Neb. 689, 128 N.W. 29; State v. Missouri P. R.Co., 75 Neb. 4, 10, 105 N.W. 983; Brigham City v. Chase,30 Utah, 410, 85 P. 436; Sheehan v. City of Fall River,187 Mass. 356, 73 N.E. 544; Chiesa Co. v. Des Moines, supra; Corrigan v.Chicago, 144 Ill. 537, 21 L.R.A. 212, and note, 33 N.E. 746;Parker v. Minneapolis St. L. Ry. Co., 79 Minn. 372,82 N.W. 673; Stubbings v. Village of Evanston, 136 Ill. 37, 29 Am. St. Rep. 300, 26 N.E. 577, 11 L.R.A. 839, and note, with long list of cases; Woodstock Hardwood Spool Mfg. Co. v. CharlestonLight Water Co., 84 S.C. 306, 66 S.E. 194; State v.Missouri P. Ry. Co., 75 Neb. 4, 105 N.W. 983.) A tenant as such owner may sue for damages or apply for an injunction when an unlawful injury to the property under color of eminent domain is inflicted or threatened. (10 R.C.L. 135; Lowery v. Pekin,186 Ill. 387, 51 L.R.A. 301, 57 N.E. 1062; Kensington Commrs. v.Wood, 10 Pa. St. 93, 49 Am. Dec. 582; Gluck v. Baltimore,81 Md. 315, 48 Am. St. Rep. 515, 32 A. 515; Pause v. City ofAtlanta, supra; Stubbings v. Village of Evanston, supra;Corrigan v. City of Chicago, supra.)

Cities in the exercise of the police power are subject to the provisions of state and federal Constitutions and with state or federal statutes. (Chicago, M. St. P. Ry. Co. v. City ofMinneapolis, 238 Fed. 384; Bettey v. City of Sidney,79 Mont. 314, 56 A.L.R. 872, 257 P. 1007; 43 C.J. 309, 319;Dobbins v. Los Angeles, 195 U.S. 223, 49 L. Ed. 169,25 Sup. Ct. Rep. 18; Porter v. Lewiston, 41 Idaho, 324,238 P. 1014; Baker v. Boston, 12 Pick. (Mass.) 184, 22 Am. Dec. 421;State v. New Orleans, 149 La. 788, 90 So. 196; Herlihy v. Donohue, 52 Mont. 601, Ann. Cas. 1917C, 29, L.R.A. 1917B, 702, 161 P. 164.)

Messrs. Gunn, Rasch Hall, for Respondent Northern Pacific Railway Company, submitted a brief; Mr. E.M. Hall argued the cause orally.

Taking or damaging property without compensation: The record shows that no street was ever established by public authority, gift, deed or otherwise across defendant's 400-foot right of way at Main Street in Miles City. The only right the plaintiff has is such an easement as it may have acquired by adverse usage for more than ten years. Assuming it has acquired an easement by adverse usage to cross over defendant's right of way at this point and thereby has established a street crossing, has that given the city anything more than the bare right to a grade crossing, the thing it has used for more than ten years?

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,67 L. Ed. 322, 43 Sup. Ct. Rep. 158, the court said: "The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so shortsighted as to acquire only surface rights, without the right of support, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place, and refusing to pay for it because the public wanted it very much. * * * So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought."

An easement acquired by prescription cannot be changed or enlarged from that acquired by the nature of the use made or enjoyment had during the period of prescription. (Pearne v.Coal Creek Min. M. Co., 90 Tenn. 619, 18 S.W. 402; State v.Anchard, 22 Mont. 14, 55 P. 361; Babcock v. Gregg,55 Mont. 317, 178 P. 284; Lowry v. Carrier, 55 Mont. 392,177 P. 756; Allen v. Neff, 102 W. Va. 230, 50 A.L.R. 1293,135 S.E. 2; Bremer v. Manhattan Ry. Co., 191 N.Y. 333,84 N.E. 59; Town of Bethel v. Pruett, 215 Ill. 162, 74 N.E. 111; 19 C.J., p. 966, secs. 200, 201, and p. 977, secs. 222, 223;Winslow v. City of Vallejo, 148 Cal. 723, 113 Am. St. Rep. 349, 7 Ann. Cas. 851, 5 L.R.A. (n.s.) 851, and cases in note,84 P. 191.)

It appears that the plaintiff has paved this street across the right of way and thereby established a grade for abutting property. (Thorberg v. City of Hoquiam, 77 Wash. 679,138 P. 304; Harman v. Bluefield, 70 W. Va. 129, 73 S.E. 296;Jones v. City of Clarksburg, 84 W. Va. 257, 99 S.E. 484;Less v. City of Butte, 28 Mont. 27, 98 Am. St. Rep. 545, 61 L.R.A. 601, 72 P. 140.) It also appears that the defendant was assessed as abutting owner for its part of the cost of this pavement. This necessarily establishes a grade and the city cannot change the same and destroy the paving paid for by the abutting property owners and thus damaging their property without compensating them therefor, as provided by subdivision 68 of section 5039 and sections 5300 to 5305, Revised Codes.

Cities are given power to establish, alter, or otherwise improve streets by subdivision 6 of section 5039, Revised Codes. But that a city cannot take or damage private property, to open or alter streets, or "for any other public use" except by condemning the same under the eminent domain statutes is provided by subdivision 75 of section 5039. If cities were not expressly given this power of eminent domain by said subdivision 75 and by section 9934, Revised Codes, they could not take private property for such purposes at all. (State ex rel. McLeod v. DistrictCourt, 67 Mont. 164, 215 P. 240.)

The defendant's answer and the evidence show that defendant's right of way adjacent to this crossing is valuable for sites for elevators, lumber-yards, warehouses, etc., and that the construction of this proposed subway will damage such building sites many thousands of dollars.

In Chicago, B. Q. Ry. Co. v. Public Utilities Com.,69 Colo. 275, 193 P. 726, it is said: "Property consists, not in the thing said to be owned, but in the right to dominion over it, control of its use, and disposition. The thing owned may be tangible or intangible, a fee in land or an easement in it. A railroad company across whose tracks a street is opened loses the exclusive control — which is property — over the part devoted to street purposes, and hence a part of its property is ``taken.' Its right to compensation for that part is a natural right, protected by express constitutional provisions. Such is the declaration of the United States Supreme Court in the case last cited." (See, also, Missouri, K. T.R. Co. v. Oklahoma, 271 U.S. 303, 70 L. Ed. 957, 46 Sup. Ct. Rep. 517; Commissioner of Parks, etc., v. Chicago etc. R. Co., 91 Mich. 291, 51 N.W. 934; Louisville N.R. Co. v. City of Louisville, 131 Ky. 108, 24 L.R.A. (n.s.) 1213, 114 S.W. 743; Chicago, B. Q.R. Co. v. PublicUtilities Com., 69 Colo. 275, 193 P. 726.)

Section 14, Article III of our Constitution provides that property shall "not be taken or damaged" without just compensation therefor first being made. This constitutional provision in many states limits compensation to property taken for public use and omits the word "damaged." Many cases may be cited construing such constitutional provision, in which it is held that an abutting owner is not entitled to compensation, except when his property is actually taken. Such cases, of course, are not in point here where the Constitution is different. The effect of these different constitutional provisions is clearly pointed out in 20 C.J., pp. 692 to 697. Among other things it is there said: "In other jurisdictions, where the constitution requires compensation for property ``damaged' or ``injured' as well as for that ``taken,' an abutting owner may recover compensation for injuries resulting from a change of an established grade by the municipality, if the damages are direct and peculiar to his property, and not such as are shared by the general public, irrespective of the ownership of the fee in the street, although in some jurisdictions having such constitutional provisions the right of recovery is limited to cases where the change is unusual or extraordinary." (See, also, Less v. City of Butte, 28 Mont. 27, 98 Am. St. Rep. 545, 61 L.R.A. 601, 72 P. 140; Eby v. City of Lewistown,55 Mont. 113, 173 P. 1163; Searle v. City of Lead, 10 S.D. 312, 39 L.R.A. 345, 73 N.W. 101; Brown v. City of Seattle,5 Wash. 35, 18 L.R.A. 161, 31 P. 313, 32 P. 214.)

In opposition to the contention of counsel for appellant that what is sought to be done is to be done under the police power of the municipality, and not under the power of eminent domain, and that therefore the land owner is not entitled to compensation, we cite: Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 186 S.W. 1053; McKeon v. New Yorketc. R. Co., 75 Conn. 343, 61 L.R.A. 730, 53 A. 656, affirmed in 189 U.S. 508, 47 L. Ed. 922, 23 Sup. Ct. Rep. 853; Chicago, B. Q.R. Co. v. Public Utilities Com., supra; Lewis on Eminent Domain, 3d ed., sec. 6; 20 C.J., p. 518, sec. 6; 10 R.C.L., p. 8;Ex parte Hall, 50 Cal. App. 786, 195 P. 975; Coppage v.Kansas, 236 U.S. 1, 59 L. Ed. 441, 35 Sup. Ct. Rep. 240; 12 C.J., secs. 441, 443, pp. 929 and 932.

(NOTE: Decision of other questions treated by counsel for defendant railway company, such as due process of law — the authority of cities to abolish grade crossings and order in subways — that the ordinance is arbitrary, oppressive, unreasonable and unjust in imposing the entire expense of constructing the subway, etc., being deemed unnecessary by the court in disposing of the appeal, citations in their support are omitted.) The city of Miles City commenced this action in mandamus to compel the Northern Pacific Railway Company to construct a subway under its tracks on Main Street in Miles City, in obedience to the requirement of a city ordinance. Upon the filing of the complaint an alternative writ was issued. Over objection of the city, the Yellowstone Lumber Company and the Miles City Grain Company were permitted to file complaints in intervention, showing that they hold leases on lands situated on the railroad right of way adjacent to Main Street, on which they have constructed buildings and are engaged in extensive business operations; that, if the subway is constructed, it will lower the grade of Main Street in front of their property from 7.2 to 8.4 feet and to such an extent as to destroy the means of ingress and egress, and thus render the business sites valueless and destroy their business and property; that the city has not agreed upon, or fixed or determined by appraisement, the amount of damages that interveners will sustain because of the change of grade, and they ask that the alternative writ be quashed and the city enjoined from compelling the railway to change the grade until the damage to interveners has been determined and paid. After issue was joined by appropriate pleadings the cause was tried to the court without a jury, the Honorable John Hurly, Judge presiding. The railway company and interveners objected to the introduction of any evidence on behalf of relator, because the application for the writ did not show that relator had complied with the law requiring the assessment and payment of damages to property owners which will result from a change in the grade. Evidence was submitted by all the parties, from which the court made findings of fact in substance as follows:

That the Northern Pacific Railway Company operates a railroad between Duluth, Minnesota, and Tacoma, Washington, which passes through Miles City, Montana, in a general easterly and westerly direction; that Miles City was first settled in 1878 and the railroad constructed in 1881; that the track was located on the 400-foot right of way donated to the railway company by Congress by Act of July 2, 1864; that Main Street in Miles City is now situated identically where a highway existed before construction of the railroad and has been used and traveled by the public and recognized by the public authorities; that the city was incorporated in 1887 and since that time the railway company, under direction of the city, has maintained and repaired the crossing over its tracks and right of way; that the cost of constructing the subway would be about $100,000; that the city has a population in excess of 7,500, about one-half being south of and the remainder north of the track. The findings show that the topography of the city, the situation of its churches, schools and hospital, and the location of its business district, are such as to constitute Main Street the principal street of the city, traveled daily, at the crossing in question, by hundreds of school children, pedestrians and vehicles; that long freight trains frequently block Main Street crossing and other crossings for a period of time in excess of the time provided by city ordinance, and that sometimes, when the crossing is blocked, pedestrians and school children crawl under or over the freight-cars; that the blocking has interfered with the operation of ambulances and fire trucks; that the railway company has five separate tracks across Main Street, known as the main track, two passing tracks and a separate track serving each of the interveners; that it has installed an electric wigwag warning signal at the crossing which operates only when a train is approaching on the main track; that the signals operate occasionally when cars are placed on the main track and when no train is approaching; that the buildings belonging to interveners and situated on the railroad right of way, held under lease by interveners, are close to Main Street and obstruct the view of the tracks and contribute to and enhance the danger of the crossing; that the construction of the subway will materially change the grade of Main Street at the place of construction and that no proceedings have been had in conformity with the statutes of this state to change the grade, and that if the change is made in the grade, interveners will suffer substantial damages.

From these findings of fact the court concluded as a matter of law that because of the failure of the city to comply with the statutes in attempting to change the grade of Main Street at the point where it abuts upon the property of interveners, the application for the writ should be denied. Judgment was accordingly entered quashing the alternative writ and dismissing the proceedings. The appeal is from the judgment.

It is insisted on behalf of the city that the court erred in permitting the complaints in intervention to be filed, in awarding judgment for defendant and interveners, and in not entering judgment for relator.

The law is well settled that a city may, in the exercise of[1-4] the police power conferred upon it by the legislature, enforce uncompensated obedience to reasonable regulations requiring the construction of crossings by railway companies, designed to promote the safety of the public and the general welfare (New Orleans Public Service v. City of New Orleans,281 U.S. 682, 74 L. Ed. 1115, 50 Sup. Ct. Rep. 449; Lehigh Valley R. Co. v. Board, 278 U.S. 24, 62 A.L.R. 805,73 L. Ed. 161, 49 Sup. Ct. Rep. 69), and that contracts made by the railway company are made subject to the exercise of that right. (Erie R.Co. v. Board of Public Utility Commrs., 254 U.S. 394,65 L. Ed. 322, 41 Sup. Ct. Rep. 169.)

But it is also the rule that the extent of the police powers of a city and the manner in which they may be exercised depend upon applicable legislative Acts. (McQuillin on Municipal Corporations, 2d ed., sec. 948.) "The source of the police power of a municipality is the state. The extent of it must be ascertained from the law creating the municipality, and from the laws of the state bearing upon the same subject." (Helena Light Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446, 447.) Of this same question the supreme court of Iowa, in Trustees ofProtestant Episcopal Church v. City of Anamosa, 76 Iowa, 538, 2 L.R.A. 606, 41 N.W. 313, 314, said: "The city must exercise its power in the manner prescribed by its charter. If authority be conferred upon it to establish grades, and cause streets to be graded by ordinances, these things cannot be done in any other way. The city must pursue the law granting it authority." In consequence, we must look to the statutes to determine whether the city has the right to enact the ordinance in question here, and whether its authority was properly exercised.

Subdivision 12 of section 5039, Revised Codes 1921, as that section was finally amended by Chapter 20 of the Laws of 1927, gives the city the power "to require the construction of crossings on the line of any railroad track or route within the city * * * where the said track intersects or crosses any street, * * * and to fix and determine the size and kind of such crossing and the grades thereof; and, in case the owner of such railroad fails to comply with such requirements, the council may cause the same to be done, and it may assess the expense thereof against such owner, and the same constitutes a lien on any property belonging to such owner within such city or town, and may be collected as other taxes."

But under subdivision 68 of section 5039, which must be read in connection with subdivision 12, it is expressly provided that when once the grade of a street has been established "it must not be changed * * * until the damage to property owners caused by the change of grade, has been assessed and determined by three disinterested appraisers who must * * * make an appraisement, taking into consideration the benefits, if any, to the property, * * * and the amount of damages so assessed must be tendered to the owner or his agent before any change of grade is made."

Also, section 5300 provides: "When the grade of any street * * * is established * * * and a building shall thereafter be constructed upon a lot abutting on said street, no change must be made in the grade of such street * * * which requires the raising or lowering of any building so constructed until the damages which may accrue by reason of such raising or lowering are ascertained and paid, as is hereinafter provided."

Section 5301 provides for the method of appraising the damages, and succeeding sections give the right of appeal from the appraisement.

These statutory provisions, whether necessary or not to save subdivision 12 of section 5039 from transgressing the constitutional inhibition contained in section 14, Article III of the Montana Constitution, constitute a part of the law under which the city may exercise its police power effecting a change in the grade of a street. They, in effect, contain limitations upon the authority of the city to exercise the power conferred by subdivision 12, and must be observed whenever there is a change in the grade of an established street.

The record here shows that the street as it exists now has been used as the grade line for about fifty years and that it has been paved and improved, and hence the grade has become established in contemplation of law. (Thorberg v. City ofHoquiam, 77 Wash. 679, 138 P. 304; Jones v. City ofClarksburg, 84 W. Va. 257, 99 S.E. 484; City of Youngstown v.Moore, 30 Ohio St. 133; 13 R.C.L. 104.) Obedience to the requirements of the ordinance will result in a material change in the established grade. (See in this connection Wilkin v. Cityof St. Paul, 33 Minn. 181, 22 N.W. 249, and City of Cleveland v. General Storage Co., 28 Ohio App. 480, 162 N.E. 819.) This, under our statutes, may not be done without first assessing and paying compensation for damages caused thereby to property owners.

But the city, conceding that if interveners owned property not[5] on the railroad right of way, they would possibly be entitled to compensation for damages sustained by a change in the grade, contends that since their rights were acquired by lease from the railway company, a different rule obtains. We see no merit in this contention.

The right of way of the railway company was granted to it by Act of Congress of July 2, 1864 (13 U.S. Stats. at Large, 365.) The railway company owns the right of way in fee. (Missouri,Kan. Tex. Ry. Co. v. State of Oklahoma, 271 U.S. 303,70 L. Ed. 957, 46 Sup. Ct. Rep. 517.) The right of way was granted for railroad purposes and therefore the city contends that the railway company has no right to deed or lease any portion of it to interveners for other purposes. So far as this case is concerned we need not determine whether the railway company has the right to make the leases to interveners. Interveners are using their property for legitimate purposes. The use made of their property involves no question of good morals; their business is not opposed to public policy. If the railway company has not the right under the grant from the government to lease the lands, as it has done, the government alone can complain. The railway company has made the leases and the lessees have constructed buildings which, according to their evidence, will be rendered valueless if the ordinance is enforced. They have property rights which will be damaged and which under our statutes entitle them to compensation before changing the grade of the street.

Nor is there any merit in the claim of the city that this result permits the railway company to make a contract depriving the city of its police power. Whatever the law may be in other jurisdictions, the police power of a city in this state, in so far as its exercise causes a change in the grade of a street, is limited by the statutory provisions requiring compensation to be first made for damages to property owners. The exercise of that right by the city is not affected by the lease. In this state the law applicable to the change of grade of a street is substantially the same as in condemnation proceedings and requires compensation to be first paid for damages to property owners. There is nothing in the lease inconsistent with the proper exercise of the police power of the city. And neither is unlawful interference with the proper exercise of the police power accomplished by requiring the power to be exercised as the law directs.

It is also asserted by the city that to require compensation[6] to be made to interveners for damages sustained by them is to place them, as lessees, in a better position than the railway company, the lessor. This result does not follow. The railway company may be required to construct a subway at its own expense, yet if its property must be taken to establish the street, it is entitled to receive compensation, which does not include, however, the cost of constructing the subway. (Missouri etc. Ry.Co. v. State of Oklahoma, supra.) Likewise, if it owned the buildings in question here which will be damaged because of a change of grade in the established street by the construction of a subway, it would have a right under our statutes to compensation for the damages, other than the cost of construction, the same as any other property owner, and the[7] lessees have the same right and no more. A tenant's term is property (City of Detroit v. Little Co., 141 Mich. 637,104 N.W. 1108; Pause v. City of Atlanta, 98 Ga. 92, 58 Am. St. Rep. 290, 26 S.E. 489), and a statute requiring compensation to owners of property damaged by a change in the grade of a street authorizes recovery by a tenant for years. (Chiesa Co. v. City of DesMoines, 158 Iowa, 343, 48 L.R.A. (n.s.) 899, 138 N.W. 922;Beste, Exr., v. Cedar County, 87 Neb. 689, 128 N.W. 29; Sheehan v. City of Fall River, 187 Mass. 356, 73 N.E. 544; Corrigan v.City of Chicago, 144 Ill. 537, 21 L.R.A. 212, 33 N.E. 746; Parker v.Minneapolis St. L.R. Co., 79 Minn. 372, 82 N.W. 673; WoodstockHardwood etc. Co. v. Charleston Light Water Co., 84 S.C. 306,66 S.E. 194; 10 R.C.L. 135; 13 R.C.L. 107.)

The fact that the leases are terminable at the option of the[8] railway company upon thirty days' written notice does not destroy the right of the tenant to compensation, but is a circumstance to be considered in determining the amount of the proper award to be made. (City of Detroit v. Detroit UnitedRy. Co., 156 Mich. 106, 120 N.W. 600.)

Counsel for the city further contend that it was error to[9, 10] permit the filing of the complaints in intervention. In other words, they contend that the interveners have no right to be heard in this proceeding.

By section 9088, Revised Codes 1921, any person who has an interest in the matter in litigation may intervene in an action or proceeding. "The statute is broad enough to permit intervention in any case, provided only the person seeking to intervene can show either an interest in the subject matter of the action, or an interest in the success of either of the parties, or an interest in the subject matter against both." (Foster v. Coyle, 59 Mont. 444, 197 P. 747, 749.)

Sections 9847 et seq., Revised Codes 1921, provide for proceedings in mandamus. Section 9866, Id., provides: "Except as otherwise provided in sections 9836 to 9867, the provisions of sections 9008 to 9832 of this Code are applicable to and constitute the rules of practice in the proceedings mentioned in sections 9836 to 9867." Thus, by section 9866 the provisions of section 9088 are made applicable to mandamus proceedings except or unless otherwise provided. There is no statutory provision which indicates that the legislature intended that section 9088 should not have application to mandamus proceedings.

The supreme court of California, in speaking of their statute which is the same as section 9088 of our statute, in Robinson v. Crescent City M. T. Co., 93 Cal. 316, 28 P. 950, 951, said: "This section, it will be observed, does not limit the right to intervene to any particular kind or class of actions or proceedings, but is general."

The word "proceeding" means special proceedings provided for by statute (State ex rel. Carleton v. District Court,33 Mont. 138, 8 Ann. Cas. 752, 82 P. 789), and includes every application to a court for a judicial remedy not comprehended in the term "action." (Sec. 8998, Rev. Codes 1921.) An application for a writ of mandamus is a special proceeding of a civil nature. (State ex rel. Bennetts v. Duncan, 47 Mont. 447,133 P. 109.) Such proceedings are not, however, civil actions, and interveners could not in this proceeding recover the damages which they will sustain by the change of grade. (Bailey v.Edwards, 47 Mont. 363, 133 P. 1095.) But they are not seeking the recovery of damages but merely to prevent the enforcement of the ordinance because the damages have not been first paid to them as required by statute.

Issuance of a writ of mandamus has been held properly resisted[11, 12] by proceedings in intervention in the following cases: First National Bank of Neligh v. Lancaster,54 Neb. 467, 74 N.W. 858; State ex rel. Bullion Exchange Bank v.Mack, 26 Nev. 430, 69 P. 862; Conlee v. Clay City, 31 Ky. Law Rep. 533, 102 S.W. 862; Kruegel v. Murphy Bolanz,59 Tex. Civ. App. 482, 126 S.W. 680; Johnston v. Conway,151 Ark. 398, 237 S.W. 80; McBrayne v. City Council of Lowell,241 Mass. 380, 135 N.E. 311.

Since the writ never issues as a matter of right but rests in the discretion of the court, and since in exercising that discretion the court may take into consideration not alone the defendant's rights but the interests of third persons as well (State ex rel. Larsen v. District Court, 78 Mont. 435,254 P. 414), we think the court properly permitted interveners to file the complaints in intervention. By so doing they may not, however, broaden the scope or functions of the proceeding in mandamus, but may oppose or resist the granting of the writ, as here. (Wright v. Jordan, 192 Cal. 704, 221 P. 915.)

Since the evidence shows and the court found that interveners will sustain substantial damages if the ordinance is enforced, and since it is conceded that no proceedings have been taken to appraise and pay the damages resulting to interveners by a change in the grade of Main Street, the court properly sustained the motion to quash the alternative writ and properly entered judgment dismissing the proceedings. Other questions presented by the railway company need not be considered.

The judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, GALEN and FORD concur.