Railroad corporations may be required, at their own expense, not
only to abolish grade crossings, but also to build and maintain
suitable bridges or viaducts to carry highways, newly laid out,
over their tracks or to carry their tracks over such highways.
This rule has been declared as the established law of the State
of Minnesota by its highest courts.
The same rule applies to a highway laid out to increase the
Page 232 U. S. 431
of a public park. Such a highway is a crossing devoted to the
public use. Shoemaker v. United States, 147 U.
The same rule also applies where the crossing is a canal or
waterway connecting other waters, and although within a public
park; the fact, and not the mode, of public passage controls.
The condemning of a strip of the right-of-way of a railroad
company and compelling that company to build at its own expense a
bridge over the part so taken so as to permit a municipality in
Minnesota to construct a canal connecting two lakes all within the
limits of a park devoted to public recreation is not an
unconstitutional taking of private property without due process of
law within the meaning of the Fourteenth Amendment.
115 Minn. 460 affirmed.
The facts, which involve the determination of whether the
condemnation of a part of the right-of-way of a railroad company,
and compelling it at its own expense, to construct a bridge over a
waterway connecting two lakes within a park, amounts to a taking of
property without compensation within the meaning of the due process
clause of the Fourteenth Amendment, are stated in the opinion.
Page 232 U. S. 436
MR. JUSTICE HUGHES delivered the opinion of the Court.
This is a writ of error to review a judgment of the Supreme
Court of the State of Minnesota, which affirmed a judgment entered
in a controversy submitted upon an agreed statement of facts. The
statement, in substance, shows:
Within the limits of the city of Minneapolis are Lake Calhoun,
Lake of the Isles, and Cedar lake, lying in close proximity to each
other, and used by the public for pleasure boating and other
recreations. The city, having acquired for park and parkway
purposes the shores of Lake Calhoun and Lake of the Isles, and a
portion of the shores of Cedar lake, together with large tracts of
land in the vicinity, is engaged in constructing two canals which
will connect the lakes and will greatly enhance their usefulness to
the public. Between Lake Calhoun and Lake of the Isles is a strip
of land, 600 feet wide in its narrowest part, through which one of
these canals is to be opened. Along this strip and near its center
lies the right of way -- 100 feet in width -- of the appellant, the
Chicago, Milwaukee & St. Paul Railway Company, which is used by
it in the operation of its road. The city, in order to provide for
the canal and walks on either side, seeks to condemn an easement in
a piece of land 100 feet wide across the right of way. The two
lakes are now connected by a small watercourse which crosses the
right of way about 59 feet from the center of the proposed canal,
and is carried under the railway tracks by a pipe about 3 feet in
diameter. The construction of the canal will render the watercourse
and pipe useless, and permit the closing of this channel. At the
point where the land is to be taken by the city, the railway tracks
are upon an artificial embankment about eighteen feet above the
established level of the
Page 232 U. S. 437
water in the lakes. The city's improvement will require the
construction of a bridge to carry the tracks across the canal and
walks. The agreed value of the mere land proposed to be taken,
irrespective of the cost of the bridge, is the sum of $10, and the
estimated cost of building a bridge in accordance with plans
prepared by the city and accepted by the railway company is the sum
of $18,513. It is agreed that an adequate bridge for railway
purposes, built according to the plans usually adopted by the
railway company, would cost only $15,969. The difference in cost,
or $2,544, is due to ornamental features, and this amount it is
agreed that, in any event, the city shall pay. For the purposes of
this proceeding, the railway company conceded the authority of the
city to take the described land under the power of eminent domain,
and it was agreed accordingly that the city should take the land
and construct the canal and walks, and that the railway company
should build the bridge after the city's plans; but no claim for
damages or compensation to which the railway company was entitled
under the law by reason of the taking was waived.
The controversy submitted was as to the amount which the company
should receive. It was contended by the company that it should be
paid (1) the sum of $10 as the agreed value of the land taken, (2)
the entire cost of the bridge, and (3) such further sum as would be
sufficient to maintain the bridge. It was also insisted that to
divest it of its property without such payment would be a violation
both of the state constitution and of § 1 of the Fourteenth
Amendment to the federal Constitution. In the court of first
instance, it was held that the company was entitled to recover only
the sum of $2,554, being the value of the land and the cost of the
ornamental features of the bridge, and this judgment was affirmed
by the supreme court of the state. 115 Minn. 460.
The question thus presented is whether the refusal
Page 232 U. S. 438
to allow compensation for the cost of constructing and
maintaining the necessary railroad bridge across the gap in the
right of way, made by the building of the canal, amounts to a
deprivation of property without due process of law.
It is well settled that railroad corporations may be required,
at their own expense, not only to abolish existing grade crossings,
but also to build and maintain suitable bridges or viaducts to
carry highways, newly laid out, over their tracks, or to carry
their tracks over such highways. N.Y. & N.E. R. Co. v.
Bristol, 151 U. S. 556
151 U. S. 567
C., B. & Q. R. Co. v. Chicago, 166 U.
, 166 U. S. 252
166 U. S. 255
C., B. & Q. R. Co. v. Nebraska, 170 U. S.
; Northern Pacific Ry. Co. v. Minnesota,
208 U. S. 583
208 U. S. 597
St. P., Minn. & Man. R. Co. v. Minnesota, 214 U.
; C., I. & W. Ry. Co. v.
Connersville, 218 U. S. 336
218 U. S.
-344. See also Detroit &c. Railway v.
Osborn, 189 U. S. 383
New Orleans Gaslight Co. v. Drainage Comm'n, 197 U.
, 197 U. S. 462
C., B. & Q. Ry. Co. v. Drainage Comm'rs, 200 U.
, 200 U. S.
-593; Atlantic Coast Line v. Goldsboro,
decided this day, post,
p. 232 U. S. 548
rule, as established in the State of Minnesota, was thus declared
in the case of State ex Rel. Minneapolis v. St. P., Minn. &
Man. Ry. Co.,
98 Minn. 380 (see
115 Minn. p.
"A railroad company receives its charter and franchise subject
to the implied right of the state to establish and open such
streets and highways over and across its right of way as public
convenience and necessity may, from time to time, require. That
right on the part of the state attaches by implication of law to
the franchise of the railroad company, and imposes upon it an
obligation to construct and maintain at its own expense suitable
crossings at new streets and highways to the same extent as
required by the rules of the common law at streets and highways in
existence when the railroad was constructed."
In that case, it appeared that, long after the construction of
the railroad, the City of Minneapolis had laid
Page 232 U. S. 439
out a street across the railroad right of way, building at its
own cost a bridge over the railroad tracks. After the bridge had
been maintained for several years by the city, it was destroyed by
fire, and the city then demanded that the railroad company should
build a new one. This demand the state court sustained, and,
mandamus having thereupon been awarded (101 Minn. 545), the case
was brought to this Court, one of the grounds being that the action
of the state deprived the company of its property without due
process of law. The judgment was affirmed (St. P., Minn. &
Man. Ry. Co. v. Minnesota, 214 U. S. 497
this conclusion being reached upon the authority of Northern
Pacific Ry. Co. v. Duluth, 208 U. S. 583
Although the Duluth
case was earlier in this Court, the
decision therein by the supreme court of the state immediately
followed that of the same court in the Minneapolis
and applied the principle which had been there announced. State
ex Rel. Duluth v. Northern Pacific Ry. Co.,
98 Minn. 429. The
facts were that, after the railroad had been built, a street had
been opened across the right of way, and subsequently a viaduct for
the crossing had been constructed at the joint expense of the city
and the railroad company, the former agreeing to maintain it.
Later, the city, repudiating the agreement, insisted that the
company should repair the viaduct at its own expense. The state
court entered judgment for the city, holding that the obligation to
construct and maintain the viaduct rested upon the railroad
company, and that hence the contract was invalid. This Court
affirmed the judgment, saying:
"As the Supreme Court of Minnesota points out in the opinion in
98 Minn. 380, . . . the state courts are not altogether agreed as
to the right to compel railroads, without compensation, to
construct and maintain suitable crossings at streets extended over
its right of way, after the construction of the railroad. The great
weight of state authority
Page 232 U. S. 440
is in favor of such right. See
cases cited in 98 Minn.
380. There can be no question as to the attitude of this Court upon
this question, as it has been uniformly held that the right to
exercise the police power is a continuing one; that it cannot be
contracted away, and that a requirement that a company or
individual comply with reasonable police regulations without
compensation is the legitimate exercise of the power, and not in
violation of the constitutional inhibition against the impairment
of the obligation of contracts. . . . In this case, the Supreme
Court of Minnesota has held that the charter of the company, as
well as the common law, required the railroad, as to existing and
future streets, to maintain them in safety, and to hold its charter
rights subject to the exercise of the legislative power in this
behalf, and that any contract which undertook to limit the exercise
of this right was without consideration, against public policy, and
void. This doctrine is entirely consistent with the principles
decided in the cases referred to in this Court."
In C., I. & W. Ry. Co. v. Connersville,
218 U. S. 336
218 U. S.
-344, a street was opened through an embankment upon
which the railroad tracks were laid. At the time of the
construction of the railroad, that part of the embankment was
outside the city limits. But the city was extended, and the
intersecting street was laid out in order to provide a suitable
means of communication between the parts of the city on either side
of the embankment. On reviewing the judgment entered in the
condemnation proceeding, it was held that there was no violation of
the Fourteenth Amendment in refusing to allow to the company the
cost of building a bridge for its tracks over the opening made by
the street. "The question," said the court,
"as to the right of the railway company to be reimbursed for any
moneys necessarily expended in constructing the bridge in question
is, we think, concluded
Page 232 U. S. 441
by former decisions of this Court. . . . The railway company
accepted its franchise from the state, subject necessarily to the
condition that it would conform at its own expense to any
regulations, not arbitrary in their character, as to the opening or
use of streets, which had for their object the safety of the
public, or the promotion of the public convenience, and which
might, from time to time, be established by the municipality, when
proceeding under legislative authority, within whose limits the
company's business was conducted. . . . Without further discussion,
. . . we adjudge, upon the authority of former cases, that there
was no error in holding that the city could not be compelled to
reimburse the railway company for the cost of the bridge in
Under the doctrine of these decisions, it necessarily follows
that, if the City of Minneapolis had opened a public road through
the embankment of the plaintiff in error, the latter would have had
no ground to complain that its constitutional rights had been
violated because it was compelled to bridge the gap at its own
cost. No different rule could be applied because the highway was
laid out in order to increase the advantages of a public park. In
this aspect, it would be equally a crossing devoted to the public
use (Shoemaker v. United States, 147 U.
, 147 U. S.
), and we see no basis for a distinction in principle
in the case of an intersecting public road opened under competent
authority because such a highway might lead to public recreation
grounds instead of to places of business, or might connect lakes
instead of avenues.
If there is a distinction in the present case, it must lie in
the fact that the crossing is an artificial waterway, instead of a
road. But it is nonetheless a public highway, established to afford
an appropriate place of public passage. Walks are provided for
those who go afoot, and it does not concern the plaintiff in error
that others go in
Page 232 U. S. 442
boats instead of vehicles. "The way sought to be established,"
said the Supreme Court of Minnesota, "a canal or waterway, with
walks along each side," was "clearly a public way, subject to the
rules governing public ways." It cannot make a difference in the
constitutional rights of the railway company that this way was not
constructed entirely, or chiefly, of solid earth; it is the fact,
and not the mode, of public passage, that is controlling. The case
must be regarded as being one of a public crossing provided by law,
and the authorities we have cited lead to the conclusion that the
state, without infringing the guaranties of the federal
Constitution, could require the railway company to make suitable
provision for carrying its tracks over the crossing without
The judgment is affirmed.