source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Railroad Company v. Defiance.

      Powers of municipal corporations — Supervision and improvement of county road brought into, by annexation of contiguous territory —Section 4906, Revised Statutes — Removal of bridge as part of highway — -Failure of property owner to file claim for damages —Sections 2804 and 2815. Revised Statutes— When cannot enjoin improvement — Municipal powers with respect to streets a continuing trust — Section S288, Revised Statutes — Grants m derogation of public use strictly construed — Council members sole judges of necessity of street improvement — Their decision not subject to judicial revision■ — Constitutional law.

    1. Where part of a county road is taken into a municipal corporation by the annexation of contiguous territory, it is subject to the control and supervision of the municipal authorities, who may improve it by grading, or otherwise, at the expense of the corporation. Section 4906, of the Revised Statutes, does not apply to unimproved county roads.
    2. A bridge, in such portion of the road, over a railroad track, constitutes a part of the highway, and may be removed, when the council deem it necessary for the public convenience to make the crossing at grade.
    3. When the resolution declaring the necessity of a proposed street improvement has been passed, and published, and notice thereof given as required by section 2304, of the Revised Statutes, to an owner whose property will be taken or injured in the making of the improvement, and he fails to file his claim for compensation or damages, in accordance with section 2315, of the Revised Statutes, his claim is waived, and barred.
    4. An owner who has been afforded an opportunity of having compensation and damages assessed him, in the constitutional mode, for property taken or injured in the making of a street improvement, but failed to avail himself of the opportunity at the proper time, cannot enj oin the improvement, on the ground that compensation has not been paid or tendered him.
    5. The powers conferred on municipal corporations with respect to the opening, improving, and repairing of'their streets and public ways, are held in trust for public purposes, and are continuing in their nature, to be exercised from time to time as the public interests may require; and they cannot be granted away, or relinquished, or their exercise suspended, or abridged, except when, and to the extent legislative authority is expressly given to do so; such authority is not given by section 3283, of the Revised Statutes.
    6. Every grant in derogation of the right of the public in the free and unobstructed use of the streets, or restrictive of the control of the proper agencies of the municipal body over them, or of the legitimate exercise of their powers in the public interest, will be construed strictly against the grantee, and liberally in favor of the public, and never extended beyond its express terms when not indispensable to give effect to the grant.
    7. An ordinance which in terms authorizes a railroad company to erect new bridges of a specified description over the track of its ráilway where it crosses designated streets, the bridges to be kept in repair by the company, does not divest the municipal authorities of their control over the streets, norimpair their power to improve the same, nor entitle the railroad company to perpetually maintain the bridges as constructed ; but the ordinance and privilege granted by it are subject to a proper exercise by the municipal body, of its power to improve the streets, and make such changes in the grades as may be necessary to sub-serve the public interest.
    8. The comparative dangers in the use of grade and overhead crossings, and the relative public benefits and private disadvantages that may result from a contemplated improvement of the streets are matters for the consideration of the members of the council, who are the sole judges of the propriety, as well as of the necessity of the improvement; and their decision, when not transcending their powers, nor induced by fraud, is not subject to judicial revision.
    9. When a case is tried to the court, the extent to which expert testimony shall be received, rests largely in its discretion.
    (Decided February 5, 1895.)
    Error to the Circuit Court of Defiance county.
    The original action was brought in the court of common pleas of Defiance county, by The Wabash Railroad Company against the City of Defiance, to enjoin the defendant from, proceeding with a contemplated improvement of North Clinton street, and Ralston avenue, by which those streets would be so graded as to necessitate the removal of the bridges erected by the plaintiff over its roadway where it crosses the streets, • and also the approaeh.es constructed by the plaintiff to those bridges.
    The petition alleges that the plaintiff “is a corporation, duly organized under the laws of the state of Ohio, for the purpose of maintaining and operating a railway, and as such now owns and operates a line of railway through the city of Defiance. The defendant,, the city of Defiance, is a municipal corporation of the state of Ohio, aforesaid. Said line of railway was formerly owned and operated by the Wabash, St. Louis & Pacific Railway Company, and during the years 1887 and 1888, was operated by one John McNulta, as receiver, appointed by the United States circuit court for the Northern District of Ohio, Western Division, in a certain cause pending in said court, wherein James R. Jessup et al., were complainants, and the Wabash, St. Louis & Pacific Railway Company et al., were defendants; which suit had been instituted for the purpose of foreclosing the railway mortgages upon all the railwajr property of said Wabash, St. Louis & Pacific Railway company. That in the year 1887, said line of railway crossed two certain public streets or highways in said city, known as the Holgate pike, and the Brunersburg road, respectively, at a grade about eighteen feet below the grade of said streets, at the crossing of said railway and said streets; and that there were two overhead wooden bridges over the said line of railway at about the distance aforesaid above the track of said railway. And thereupon, on the 26th day of December, 1887, the city council of said city of Defiance, duly passed an ordinance, in words and figures following, to-wit:

      ‘An Ordinance
    ‘Permitting Wabash., St. Louis & Pacific Railway to construct bridges at Holgate Pike and Brunersburg Road.

      ‘Be it ordained, by the Council of the City of Defiance, Ohio:
    ‘Section 1. That the "Wabash, St. Louis & Pacific Railway Company is hereby authorized to erect new bridges over and across the track of the railway of said company where the same crosses the public streets in the Third ward of said city, known as the Brunersburg’ road, and Holgate pike, provided said bridges shall be of good and substantial construction, placed in the center of said street, be eighteen feet wide roadway, with good and substantial sidewalk eight feet wide on each side of said bridges, with proper railings on each side of said walks, said bridges and sidewalks to be at all times kept in good order and repair by said company.’ And said railway company is hereby further authorized to construct each of said bridges of sufficient height to give a distance of twenty-one feet in the clear between the tops of the rail of said railway at its present grade and the bottom of the floor beams of said bridges ; provided always, that said company shall provide and construct good and ■sufficient approaches and grade to each of said bridges, and extend the same to sufficient distance to give a grade of not to exceed one and one-fourth inches to the foot, and to conform to the width of the present street; said grade to be made firm and solid, by either stone or gravel, at the option of said company; provided that if gravel be used, said city will permit it to be taken from their gravel bed without charge, and to construct and keep in constant repair good and proper approaches to said sidewalks, and brought to the proper level of the present walk by broad, safe steps where the grade would be too great for a safe incline; and all to be done to the approval of the city, and all to be kept in repair to the extent of said company’s right of way at all times by said company.
    ‘Section 2. The entering upon the work of constructing said bridges by said company shall be taken as an acceptance of the terms thereof by. said company, and shall be regarded as superseding any contract or agreement heretofore existing between said company and said city as to either of said.bridges.
    ‘Section 3. This ordinance shall take effect and be in force from and after its passage and due publication.
    ‘Done at the council chamber, in regular session, this 20th day of December 1887.
    ‘Attest: Jas. A. Kitchel,
    ‘ City Clerk.

    ‘I, Jas. A. Kitchel, do hereby certify that the foregoing ordinance was published in the Defiance Democrat, a paper of general circulation in said city and county.
    ‘Jas. A. Kitchel,
    ‘ City ClerkS

    “Said ordinance was duly published according to law. Said ordinance was passed for the purpose of allowing and permitting said McNulta, as receiver of said railway, to construct said bridges. And thereupon said MeNulta, acting as receiver aforesaid, caused the overhead bridges described in said ordinance to be constructed, and as a part of said structures caused the necessary approaches to be constructed at a large cost and expense to said receivership, to wit: Of more than $2,300.00. Said work was done under and by virtue of the authority of said ordinance and in all respects in conformity thereto; and all the terms and conditions imposed by said ordinance upon said railway and its receiver, have been faithfully kept and performed by him and by plaintiff since it was placed in possession of said railway property under the orders of said court as hereinafter stated. That thereafter said railway property-was sold under the decree and orders of said United States court, and such proceedings were' had as that plaintiff became the purchaser under said decree and orders, and under said orders became vested with all the said railway property'and all rights, assets, ehoses in action belonging to said receiver as such, including all rights arising under said ordinance and the acts of the receiver thereunder. And plaintiff says that on or about the 7th day of February, 1893, the city council of said city of Defiance, in utter disregard of the rights vested in said receiver and plaintiff by the foregoing ordinance and the action taken thereunder, and the orders and decrees of said court as above set forth, passed two ordinances in words and figures following, viz.:
    An Ordinance
    ‘To improve part of Nortli Clinton Street, in the city of Defiance, Ohio, and providing for the payment of the costs and expense of said improvement.
    ‘ Whereas, The city council of the city of Defiance, Ohio, at its meeting duly held at the council chamber in said city on the sixth day of September, A. D. 1892, duly passed and adopted a certain resolution declaring- it necessary to improve part of North Clinton street, in said city, between the points hereinafter specified and in the manner hereinafter provided; and

      ‘ Whereas, Due publication of said resolution has been made, and more than twenty days written notice of the passage of said resolution has been given to each and all of the owners of property abutting on said improvement, in. all respects as required by law, and in conformity to said resolution ; and

      ‘ Whereas, ■ More than two weeks have elapsed since the service of said notice and the completion of said publication, and no claims for damages by reason of said improvement have been filed with the city clerk of said city; now, therefore,

      Be it ordained, By the city council of said city of Defiance, Ohio, as follows:
    ‘ Section 1. That the said improvement of that part of North Clinton street, formerly known as Center street and Holgate pike, in the city of Defiance, Ohio, which extends from the distance of twenty-five (25) feet north of the south line of the intersection of High street with said North Clinton street to the distance of nine hundred (900) feet north of said south, line of said intersection of High street, be proceeded with, in accordance with said resolution, by changing the grade of that part of said street, and excavating and grading the same to the following grade, to wit: Commencing at a point in the center of said North Clinton street, twenty-five (25) feet north of a point in the center of said street and in the south line of the intersection of High street therewith, at a distance of sixty-nine hundredths (69-100) of a foot lower than the water table on the store building of George Miller, and running thence north along’ the center of said North Clinton street, ascending at the rate of twenty-five hundredths (25-100) of a foot in each one hundred feet, for the distance of three hundred and twenty-five (325) feet; thence descending at the rate of four and -fifty-hundredths (4 and 50-100) feet in each one hundred feet, for the distance of two hundred (200) feet; thence at a level for the distance of fifty (50) feet; thence ascending at a rate of four and forty-seven hundredths (4 and 47-100) feet in each one hundred feet, for the distance of three hundred (300) feet, and there to terminate, in conformity to the profiles, plans and specifications on file in the office of the city civil engineer of said city, to which reference is hereby expressly had and made, and w;hieh said grade, plans, profiles and specifications are hereby approved, established, adopted and. confirmed.
    ‘Section 2. That the costs and expenses of said improvement shall be paid out of the general fund and levied and assessed upon the general tax list upon all real and personal property in the corporation.
    ‘Section 3. This ordinance shall take effect and be in force from and after its passage and due publication.
    ‘ Passed February 7, 1893.
    ‘Edward Squire,
    ‘ President of the Council.

    ‘Attest: J. J. Malley,
    ‘ City Clerk.

    ‘ The State of Ohio, City of Defiance, ss.

    ‘ I do hereby certify that the foregoing is a true copy taken from’the records and proceedings of said city council.
    ‘J. J. Malley
    ‘ City Clerk.

    ‘Defiance, Ohio, February 7, 1893d

    ‘An Ordinance
    1 To improve part of Ralston avenue, in the city of Defiance, Ohio, and providing for the payment of costs and expense of said improvement.
    ‘ Whereas, The city council of the city of Defiance, Ohio, at its meeting duly held at the council chamber in said city, on the 6th day of ■ September, A. D. 1892, duly passed and adopted a certain resolution declaring it necessary to improve a part of Ralston avenue, in said city, between the points hereinafter mentioned and in the manner herein provided;
    ‘ And whereas, Due publication of said resolution has been made and more than twenty days written notice of the passage of said resolution has been given to each and all of the owners of property abutting on said improvement,, in all respects as required by law, and in conformity to said resolution ;

      ‘And tohereas, More than two weeks have elapsed, since the service of said notice and the completion of said publication, and no claims for damages by-reason of said improvement have been filed with the city clerk of said city; now, therefore,
    ‘ Be it ordained By the city council of Defiance, Ohio, as follows:
    ‘Section 1. That the said improvement of that part of Ralston avenue, formerly known as the Brunersburg road, in the city of Defiance, Ohio, which extends from its intersection with North Clinton street, to a point six hundred (600) feet northwesterly from the center of said intersection, be proceeded with, in accordance with said resolution, by changing the g’rade of that part of said Ralston avenue, and excavating and grading the same to the following g’rade, to wit: Commencing at the center of the intersection of said Ralston avenue and North Clinton street, at the distance of six hundredths (6:100) of a foot lower than the water table on the store building of George Miller, and running thence northwesterly along- the center of said Ralston avenue, descending at the rate of five (5) feet in each'one hundred feet, for the distance of two hundred (200) feet; thence on a level for the distance of fifty (50) feet; thence ascending at the rate of two and ninety hundredths (2 and 90-100) feet in each one hundred feet for the distance of three hundred and fifty (350) feet, and there to terminate, in conformity to the plans, profiles and specifications on file in the office of the city civil engineer of said city, to which reference is hereby expressly had and made, and which said grade, plans, profiles and specifications are hereby approved, established, adopted and confirmed.
    ‘Section 2. That the costs and expenses of said improvement shall be paid out of the general fund, and levied and assessed upon the general tax list on all real and personal property within the corporation.
    ‘Section 3. This ordinance shall take effect and be in force from and after its passage and due publication.
    ‘Passed February 7, 1893.
    ‘Edward Squire, President of Council.

    ‘Attest: J. J. Malley,

      ‘City Clerk.

      iThe State of Ohio, City of Defiance, ss.:

    ‘I do hereby certify that the foregoing’ is a true copy taken from the records and proceedings- of said city council.
    ‘J. J. Malley,

      City Clerk.

    ‘Defiance, Ohio, February 7, 1893. ’
    “Said public highway known as Holgate pike being referred to in said last named ordinances as North Clinton street, and said Brunersburg road is referred to therein as Ralston• avenue. That the sole purpose, object and effect of said or di-, nances is to cause the said overhead bridges and the approaches thereto over said Holgate pike and Brunersburg road to be entirely destroyed and removed, and the crossing’ of said highways over said railway track reduced to a crossing at the same grade as plaintiff’s said track. And said city of Defiance is now threatening and intending forthwith to destroy and remove said bridges and approaches. Plaintiff avers that if said city of Defiance be allowed to carry out said purpose, said crossing’s will be extremely dangerous to all persons having- occasion to use the same by reason of the fact that the track of said railway at said points is far below the ordinary level of the highways, and the roads as graded by said last named ordinances will approach said tracks at a steep downward incline on both sides; that said railway track at said points is on a heavy grade which renders it very difficult to control the speed of the heavy trains of plaintiff, and thus the danger of a grade crossing is vastly increased. The plaintiff says that for many years prior to the passage of said first mentioned ordinance, to wit, since the year A. D. 1856, the railway track of the plaintiff had been crossed by said highways by overhead crossings consisting’ of bridges about eighteen feet in the clear above the level of the tracks. That said highways then, as now, crossed the railway track at points near together, to wit, about 196 feet and converge so as to meet at a distance of about 70 feet from the railway right of way. That the track of said railway at said crossings' lies in a deep cut, about eleven or twelve feet below the natural surface of the ground, and is on a heavy down grade and curve, and on one 'of said highways buildings are so located as to almost, if not entirely cut off the view of approaching trains from persons approaching said track from the southerly side of the same. That if said crossings are reduced to grade, as proposed by said ordinances, the approaches to said track will be down a steep, inclined plane on both sides of said track, on both said highways ; so that at said crossings the said highways will be cut to a depth of about eleven and one-half feet below the adjacent lands. That it will be almost, if not quite impossible for heavily loaded teams to stop for trains when approaching said track; and that by reason of the deep cuts both of said railway and highways in which said crossings will be located and of the curve and grade of said railway at said points, the sound of any signal and the sound and sight of approaching trains will be cut off and said crossings will be excessively difficult and dangerous to the lives of persons crossing plaintiff’s track along said highways, and to the lives, limbs and property of its passeng-ers and patrons, being carried on the trains of the plaintiff, on account of unavoidable accidents and collisions there happening, and that thereby there will be cast upon the plaintiff an additional burden and liability to its said passengers and the public. That the natural conformity of the land at said crossing is such as to make overhead bridge crossings of said public highways over plaintiff’s said track absolutely essential to the public safety. That said crossings, since the construction of said track to the present time, for a period of time of about thirty-seven or thirty-eight years, have been by means of overhead bridges at said public highways over the plaintiff’s track, and at a height above said track of about eighteen feet, down to December, A. D. 1887, the date of the ordinance first herein above named, when it became necessary for the safety and protection of the trains and trainmen of the plaintiff, on account of the increased height and size of the cars composing its trains,. to raise said bridges to their present height, to wit, about twenty-one feet above plaintiff’s said track, .as was done by agreement with the said defendant under and by virtue of said ordinance first herein above named. That, at the time the said railway was constructed by the original railroad company incorporated under the laws of the state of Ohio, for that purpose, and to all whose rights and franchises this plaintiff has succeeded, said bridges were constructed as a part of the highways over said railway track in restoring of the said highways to their original usefulness, as said railroad company was required to do under the law; and said bridges have, been kept up and maintained by said original railroad company and its successors, including this plaintiff, to the present time, as an integral part of said highways and as public crossing’s over its said track solely at the expense of this plaintiff and its said predecessors. That some time in the year A. D. 1878, the village council of the then village of Defiance, since organized as the city of Defiance, passed an ordinance requiring’ the Wabash Railway Company, a predecessor aforesaid of the plaintiff, to construct a sidewalk on one side of the said overhead bridge of the said Brunersburg road, there having been up to that time no sidewalks on either of said overhead bridges. That the said railway company objected and refused to do this, giving to the said village council as its reason therefor that said bridge was a part of said Brunersburg road and which was a coúnty road and under the entire and sole control of the county commissioners of said Defiance county. It was finally agreed between the said railway company and the said village of Defiance, that said railway company would construct a sidewalk on the left side of said bridge going northward, on the express condition that it should not thereafter be considered as obligated to keep the same in repair or renew the same after it had become unfit for use, to which the said village assented and the said railway company did so construct said sidewalk, but whether said agreement was reduced to an ordinance and entered on the records of said village, this plaintiff is ignorant; and this plaintiff says that by its requirement of the said railway company to construct said sidewalk at the height said bridge was over said track, the said village recognized the grade of said Brunersburg road as established at that height, and also by the ordinance first set forth herein, the defendant recognized and agreed with this plaintiff, that the grade of both of said highways was and should be thereby established and fixed at the height of twenty-one feet above the plaintiff’s said track, and that the defendant is thereby estopped from requiring this plaintiff to remove its said overhead bridges and to construct grade crossings of the said highways over its said track. That further, the grading down of said highways as proposed by said ordinances for that purpose will be an appropriation of the plaintiff’s property and will also cast an additional . burden upon the plaintiff in the establishing and maintaining of new grade crossings over its said track, for which no compensation has been provided in money for the plaintiff, and no tender thereof made to the plaintiff; without which first being done the carrying out of said last named, ordinances will be contrary to the provisions of the constitution of the state. That said last named ordinances are by reason of the-premise unreasonable, unlawful, dangerous and oppressive, and contrary to sound public policy. Plaintiff further says that said last named ordinances are contrary to public policy and void for the following reason, to wit: That they were passed as plaintiff is informed and believes, not for public benefit, but for private advantage of the owners of property lying adjacent to said bridges and approaches. That one Joseph Ralston is a member of the said city council of Defiance, and voted in favor of the said-ordinances, and as plaintiff is informed, was highly instrumental in securing their adoption. And plaintiff says that said Ralston is the owner of a piece of property lying adjacent to said railway track on. Ralston avenue, so called; that said Ralston, on or about the 3d day of March, 1890, recovered a judgment against said John McNulta, receiver, by the consideration of the court of common pleas of Defiance county, Ohio, in the sum of $431.25, which this plaintiff has paid in full, pursuant to an order subsequently made by the United States circuit court, Northern District of Ohio, Western Division, in said foreclosure suit, as damages resulting to his premises from the elevation of said bridge on said highway under said first named ordinance, and plaintiff charges on information and belief that in seeking and procuring the passage of said last named ordinances, said Ralston intended to benefit his own property to the great damage of the general public, and to retain the damages paid him for the elevation of said roadway in front of his premises. Plaintiff alleges and charges the fact to be that said last named ordinances, although in form ordinances to change the grade of said streets, are in fact aimed solely at this plaintiff, and are intended simply to bring about the destruction and removal of said bridges, and as such are an abuse of power on the part of said council, and that said ordinances are therefore contrary to the public policy and void. That if said defendant be allowed to carry out the provisions of said ordinances, this plaintiff will by reason of the' premises suffer irreparable injury. Plaintiff further says that the ordinances last named of said city council of Defiance impair the obligation of the contract made by the city with said receiver in said first named ordinance, and the acts of the said receiver and plaintiff thereunder; and as such are in contravention of the provisions of section ten (10), of article one (1), of the constitution of the United States; but that, as your plaintiff is informed, and believes, said city and its officers and agents now give out and claim that said ordinance of 1887 is of no binding force or effect, and conferred no rights upon said receiver, and therefore affords no protection to plaintiff in the premises. This plaintiff further says that said Brunersburg road and said Holgate pike have been for a time long prior to the construction of the plaintiff’s said railroad track continuously to the present time and still are, state or county roads, and as such subject to the entire control of the board of county commissioners of said county of Defiance; that said overhead bridges, as above alleged, constitute an integral part of said public highways; that the defendant has no power or jurisdiction over the same so far as'to interfere with the said overhead bridges of the plaintiff or to grade down or change the grade of said highways, as contemplated by said last named ordinances; and that so far as said ordinances are intended to change the grade of said highways or to interfere with the plaintiff’s said bridges and crossings, they and each of them are absolutely void.

      “Second — Plaintiff further says, referring to the allegations hereinbefore set forth as to the passage by the defendant and the intent and purpose of said last named ordinances, and adopting said allegations as a part of this, its second cause of action, that it is the owner of a line of railway extending through the said city of Defiance, and of other valuable property therein situated, all of which is subject to the assessment and taxation therein; that it is proposed by the said defendant, if it carries into effect the provisions of the said ordinances for the so-called improvement of said Ralston avenue and North Clinton street, to assess the expense of said improvements upon the property of the taxpayers of said city generally, and that the plaintiff thereby will have its said property charged with taxes to pay for the expense of said proposed improvements; that the said Ralston avenue and North Clinton street are other names merely for the said Brunersburg road and Holgate pike, both of which are state and county roads and under the entire control and management of the board of county commissioners of said Defiance county, and that all repairs and improvements of the same should be in law made at the expense of said county; that it is not competent in law for the defendant to assess or tax the property of the taxpayers, including this plaintiff, of the said city of Defiance, for the improvement and repairs of said public highways in any sum whatever. Plaintiff therefore, having no adequate remedy at law, prays that the court will protect it in the enjoyment of all and singular, the rights and property transferred to it by said receiver, under the orders of said circuit court of the United States; that said city of Defiance, its officers, agents and servants, maybe enjoined from carrying said ordinances into effect, and from in any manner destroying- or taking- away said overhead bridges and the approaches thereto. That, if necessary to protect the plaintiff in its rights, said ordinances may be vacated. That a provisional order of injunction be made restraining them from further proceedings thereunder, and on final hearing, said order be made perpetual, and for such other and further relief as may be just and equitable in the premises.”

      The answer is as follows:
    “Now comes the defendant, The city of Defiance, and admits and avers that it is a municipal corporation of the state of Ohio.
    ‘‘ It further admits that the plaintiff is a corporation, duly organized under the laws of the state of Ohio, for the purpose of maintaining and operating a railway, and that as such .it now owns and operates a line of railway through said city of Defiance, which said line of railway was formerly owned and operated by the Wabash, St. Louis and .Pacific Railway Company, and was, during the years of 1887 and 1888, operated by one John Mc-Nulta, as receiver, appointed by the United States circuit court for the Northern District of Ohio, Western Division, in a certain cause then pending in said court, wherein James R. Jessup et al.,were complainants, and the Wabash, St. Louis and Pacific Railway Company et al., were defendants; which suit had been instituted for the purpose of foreclosing’ the railway mortgages upon all the railway property of said Wahash, St. Louis and Pacific Railway Company.

      ‘1 It further admits and avers that, in the year 1887, and for many years prior thereto, and ever since the said line of railway crossed two certain public highways and streets in said city, one of which was then known as Holgate pike and is now known as North Clinton street, and so designated in the ordinance set forth in the petition, and the other of which was then known as the Brunersburg road, and is now known- as Ralston avenue and so designated in the ordinance set forth in the petition, at a g’rade below the surface of said streets at the crossings of said railway and said streets, but denies that the track of said railway was more than sixteen feet below such surface of said streets, or either of them.
    “And defendant further admits that there were then two overhead wooden bridges over the line of said railway, but denies that they or either of them were any greater distance above said track than sixteen feet. It further admits that, since the year 1856, the track of said line of railway has been crossed by said highways by overhead crossings, consisting of bridg’es, but denies that at any time prior to the construction of the present bridg’es in the year ,1887, said bridges were more than sixteen feet in the clear above the level of said track.
    “It admits that said highways at all times since said year 1856, have crossed and now do cross said railway track at points about 196 feet .from each other, and that they converge so as to meet at a distance of about seventy feet from the railway right of way.
    ‘ ‘ It admits that the track of said railway at said crossing’s lies in a cut, and is upon a curve, and that at the time that said railway was constructed by the original railroad company, incorporated under the laws of the state of Ohio for „that purpose, overhead bridg’es on said Holgate pike and the Bruner sburg road, were constructed by said original railroad company as part of said public highways over and across said railway track, but it avers that said bridg’es were kept and maintained by said original railroad company and its successors for that purpose, at a height of not more than sixteen feet above the surface of the track of said railway, until sometime prior to the year 1887, when the Wabash, St. Louis and Pacific Railway company, or the said John McNulta, as receiver, as aforesaid, wrongfully removed said bridges, and in place thereof wrongfully and unlawfully constructed the present bridges, and raised said new bridges to the héight of more than twenty-one feet above the surface of the track of said railway, and wrongfully and unlawfully raised the approaches to said last mentioned bridges to correspond with the said increased height of said present bridges, and said Wabash, St. Louis and Pacific Railway company and said receiver and said plaintiff, have since kept up and maintained said bridges at said height of more than twenty-one feet above the surface of the track of said railway, and have kept and maintained said approaches at the corresponding height.
    “It admits that the said Holgate pike and Brunersburg road were originally laid out, established and opened as county roads of said county of Defiance, Ohio, and admits that at the time and for a longtime after said original bridges were built as aforesaid, said highways were under the exclusive control of the board of county commissioners of said county, but it avers that at the time of the removal of said bridges and the construction of the present bridges, and for a long time prior thereto, each of said highways, at its crossing and intersection of said railway, for a long distance on each side thereof, had become and was, and still is, within the territorial limits of said city of Defiance, and had become, and’was and still is a public highway and street of said city, and within the exclusive care, supervision and control of the council of said city, and that neither of said present bridges is or evet became or was the property of said- county of Defiance, or under the control of said, county, or of the board of county commissioners thereof.
    “And said defendant admits and avers that, on the 7th day of February, A. D. 1893, the two ordinances mentioned and set forth in the petition and entitled, respectively, ‘An ordinance to improve part of North Clinton street, in the city of Defiance, Ohio, and providing for the payment of the costs and expense of said improvement, ’ and ‘An ordinance to improve part of Ralston avenue, in the city of Defiance, Ohio, and providing- for the payment of the costs and expense of said improvement,’ were each passed by the city council of said city, and that each of said ordinances is in the words and figures set forth in said petition and that said defendant, unless restrained by the final order, judgment and decree of the court in this action, intends to and will construct said improvements in conformity to the terms and provisions of said several ordinances, and assess the expense of said improvements upon the property of the taxpayers of said city generally.
    “And defendant further says, that the city council of said city of Defiance, at its regular meeting duly held at the council chamber in said city, on the 6th day of September, A. D. 1892, duly passed two certain resolutions, more than two-thirds of the whole number of members elected to said council concurring therein, which said resolutions are in the words and figures following, to-wit :
    ‘A Resolution
    ‘ Declaring it necessary to improve part of North Clinton street, in the city of Defiance, Ohio, between the points therein designated, and in the manner therein provided.
    ‘ Be it resolved, By the city council of the city of Defiance, Ohio, that it be and hereby is declared necessary .to improve that part of North Clinton street, in said city, formerly known as Center street and Holgate pike, which extends from the distance of twenty-five (25) feet north of the south line of the intersection of High street with said North Clinton street, to the distance of nine hundred (900) feet north of said south line of said intersection of said High street, by changing the grade of that part of said street, and excavating and grading the same to the following grade, to-wit: Commencing at a point in the center of said North Clinton street, twenty-five (25) feet north of a point in the center of said North Clinton street and in said south line of said intersection of High street, at the distance of sixty-nine hundredths (69-100) of a foot lower than the top of the water table on the store building of Georg’e Miller, and running thence north, along the center of said street, ascending at the rate of twenty-five hundredths (25-100) of a foot in each one hundred feet, for the distance of three hundred and twenty-five (325) feet; thence descending- at the rate of • four and fifty-hundredths (4 and 50-100) feet in each one hundred (100) feet, for the distance of two hundred (200) feet; thence at a level for the distance of fifty (50) feet; thence ascending at the rate of four and forty-seven hundredths (4 and 47-100) feet, in each one hundred (100) feet, for the distance of three hundred (300) feet, and there to terminate, in conformity to the plans on file in the office of the city civil engineer.
    ‘That the cost and expenses of said improvement shall be levied and assessed upon the tax list, upon all real and personal property in the corporation.
    ‘And that William E. Carpenter be, and he hereby is appointed to serve notice of the passage of this resolution on all owners of property abutting on said improvement; and the city clerk is hereby directed to cause this resolution to be published as required by law.

      ‘ Done at the council chamber in said city, this 6th day of September, 1892.
    ‘H. D. Bókop,
    ‘ President pro tern, of Council.

    ‘Attest: J. J. Malley,
    ‘ City Clerk.

    ‘ State of Ohio, City of Defiance, ss.:

    ‘I do hereby certify that the foregoing is a true copy taken from the records and proceedings of said city council.
    ‘ J. J. Malley,
    ‘ City Clerk.

    ‘Defiance, Ohio, September 14, 18924

    ‘A Resolution
    ‘ Declaring it necessary to improve part of Ralston avenue, in the city of Defiance, Ohio, between the points therein designated and in the same manner therein provided.
    ‘ Be it resolved, By the city council of the city of Defiance, Ohio, that it is necessary to improve that part of Ralston avenue, in said city, formerly known as the Brunersburg road, which extends from its intersection with North Clinton street, to a point (600) feet northwesterly from the center of said intersection, by changing the grade of that part of said street, and excavating and grading the same to the following grade, to-wit: Commencing at the center of the intersection of said Ralston avenue and North Clinton street at a distance of six-hundredths (6-100) of a foot lower than the top of the water table on the store building of Georg’e Miller, and running thence northwesterly along the center of said Ralston avenue, descending' at thé rate of five (5) feet in each one hundred (100) feet, for the distance of two hundred (200) feet; thence on a level for the distance of fifty (50) feet; thence ascending at the rate of two and ninety-hundredths (2 and 90-100) feet in each one hundred (100) feet, for the distance of three hundred and fifty (350) feet, and there to terminate in conformity to the plans on file in the office of the city civil engineer.
    ‘That the costs and expenses of said improvement shall be levied and assessed upon the tax list, upon all taxable real and personal property in said city.
    ‘And that William E. Carpenter be, and he hereby is appointed and directed-to serve notice of the passage of this resolution on all owners of property abutting on said improvement; and the ■ city clerk is hereby directed to cause this resolution to be published as required by law.-
    ‘ Done at the council chamber in said city, this 6th day of September, 1892.
    ‘H. D. Bokop,
    ‘ President pro tem. of Council.

    ‘Attest: J. J. Malley,
    ‘ City Cleric.

    ‘ The State of Ohio, City of Defiance, ss.:

    ‘ I do hereby certify that the foregoing is a true copy taken from the records and proceedings of said city council.
    ‘J. J. Malley,
    ‘ City Cleric.

    ‘ Defiance, Ohio, September 14, 1892. ’
    “That both of said resolutions were duly published for two consecutive weeks in the Defiance Democrat, a newspaper published and of general circulation in said city of Defiance, beginning on ,the • — • day of September, 1892, and written notice of the passage of each of said resolutions was duly served upon the plaintiff, on the 10th day of October,. A. D. 1892, but the plaintiff did not, at any time, file any claim in writing with the clerk of said city, for damages by reason of said improvements, or either of them, by reason of which said failure to file such claim, the said plaintiff has waived the same and is barred from claiming or receiving damages by reason of said improvements, or either of them.
    “Said defendant further admits that one Joseph Ralston, at the time of the passage of said ordinances, was and still is a member of the council of said city of Defiance, Ohio, but it avers that said ordinances were passed by the vote in favor thereof of more than two-thirds of the number of all the members elected to said council, exclusive of the vote of the said Joseph Ralston in favor thereof.
    “And said defendant denies each and every matter, fact and thing, and each and every statement, allegation and averment in said petition contained, stated and set forth, and not herein before expressly and specifically admitted to be true.
    “ Wherefore, having fully answered, said defendant prays that it may be dismissed hence with its costs.”
    The following is the reply:
    “Said plaintiff, in reply to the answer of defendant, denies that the said public highways named in its petition, ever became subject to the supervision and control of the defendant for other than police purposes.”
    . Judgment having been rendered against the plaintiff on the trial of the issues in the court of common pleas, the cause was taken on appeal to the circuit court, where the like judgment was rendered ; and to reverse the latter judgment this proceeding in error is prosecuted. A bill of exceptions, containing the evidence, was duly taken in the circuit court, but it is not necessary to refer to it more particularly here.
    The questions presented, and the facts, as far as they are deemed important in the decision of the ease, are stated in the opinion.

      Henry Newbegin and Alex. L. Smith, for plaintiff in error.
    The law will not permit the defendant to carry into effect its ordinances for the so-called improvement of said highways, as against the rights of this plaintiff.

      First — The dangerous character of these crossings, if reduced to grade, both to the public using such crossings on highways as well as to the passengers and trainmen on the trains of the plaintiff, is sufficient of itself to require the court to grant the relief prayed for, and permanently enjoin the defendant from enforcing its so-called ordinances, even if there were no other legal rights of the plaintiff violated by the defendant in enforcing its said ordinances.
    It is becoming the settled policy of all the states throughout the country to abolish grade crossings. Our own state, by its act passed April 27, 1893, 90 O. L., 359, has adopted this policy, and under this alone the plaintiff claims that they have a right to the injunction prayed for; for the reason that the overhead crossings were erected by an agreement with the city and the plaintiff, under the ordinance of 1887, and that agreement having once taken effect is now valid, and binding on the municipality and- the railroad, respectively. Section 3 of the above act. And under section 6, said overhead bridges and approaches must be forever kept in repair and maintained. New York & N. E. R. R. Co. v. Town of Bristol, 26 Chic. Legal News, 197; 14 Sup. Ct. Reporter, 437.

      Overhead structures too, must be of sufficient height above the railroad company’s track to prevent accidents to its trainmen though standing erect on the highest ears in use. C., C., C. & St. L. Ry. Co. v. Walter, Adm'r, 147 Ill., 60; 35 N. E. Rep., 529; C. & A. R. R. Co. v. Johnson, 116 Ill., 209; B. & O. and C. R. R. Co. v. Rowan, 104 Ind., 88; 23 Am. & Eng. R. R. Cases, 390.

      Second — The carrying into effect of said ordinances for the purpose for which they were passed would be oppressive, and as against the rights of the plaintiff, an abuse of the powers of the defendant which equity will restrain. Am. & Eng. Ency. of Law, vol. 15, 1047; Dillon’s Mun. Corp., sections 319, 321, 4th ed. and notes thereunder; Cooley’s Const. Lim., 243; High on Injunctions, 3d ed., sections 349, 1241, 1243, 1247, 1271, 1275.
    It is said, however, that the motives of the city council in passing these so-called improvement ordinances cannot be inquired into, though their acts may be impeached for fraud. 1 Dill. Mimic. Corp., Secs. 311, 312; 1 Beach Pub. Corp., Sec. 516; 7 Am. R. R. and Corp. Rep., 528.
    But the facts pleaded in the petition in substance amount to fraud, which in law is always a conclusion from the facts pleaded. It would be a strange condition of the law which allowed the plaintiff only to defend itself when the defendant attacked it directly in front, and not when it was being attacked in its flanks and rear. Ligare v. City of Chicago, 5 Am. R. R. and Corp. Rep., 176.

      Third — The ordinances of 1887 were a license to the plaintiff to construct their bridges to the present height, and having once been acted on by the company, the defendant is now estopped from removing such bridges and reducing their crossings to g-rade, especially as the passage oh the said, ordinances and others of prior date, was a recognition and fixing of the grades of the streets at their present height, so far as the rights of the plaintiff •are concerned. Wilson v. Chalfant, 15 Ohio, 248; Grimshaw v. Belcher, 88 Cal., 217; City of Galveston v. Galveston City R. R. Co., 46 Texas, 435.
    This doctrine of estoppel applies as well to municipal corporations as natural persons. Hutchinson, etc., R. R. Co., v. Board of Com., 48 Kan., 70; Williams v. Citizens' Ry. Co., 30 Am. St. Reps., 201; People v. O'Brian, 111 N. Y., 1; Rorer on Railroads, vol. 1, p. 655; Davenport C. R. R. Co. v. Gaslight Co., 43 Iowa, 301.
    In the matter of appeal of the Phila., W. & B. R. R. Co., 15 Atlantic Rep., 476, a ease almost identical with the one at bar, the Supreme Court of Pennsylvania held that where a public highway crossed the railroad' track by an overhead bridge which had been constructed by the railroad company under an agreement with the city, the street could not afterward be reduced to a grade. Fletcher v. Peck, 6 Cranch, 88.

      Fow'th — The passing’ of these ordinances for the so-called improvement for the purpose of reducing to grade these overhead crossings was in violation of the constitution of the United States, which forbids any state from passing a law impairing the obligation of contracts. Art. 1, See. 10, Const, of U. S.
    It has been repeatedly held by the Federal Courts that a city ordinance is a law, within the meaning of this provision. Such ordinances are held to be laws of the state, for the reason that the sole authority to pass them, rests upon legislative enactments; that is to say, that the legislature acts indirectly through the municipality, as its agent, in passing such ordinances. Citizens' St. Ry. Co. v. City Ry. Co., 56 Fed. Rep., 746; Gaslight Co. v. City of Saginaw, 28 Fed. Rep., 529; Weston v. City of Charleston, 2 Pet., 462; Wright v. Nagle, 101 U. S.; 791; Gaslight Co. v. Louisiana Light Co., 115 U. S., 650; Santa Ana Water Co. v. Town, etc., 56 Fed. Rep., 339; Water Works Co. v. Rivers, 115 U. S., 674.
    That the ordinance of 1887, authorizing the plaintiff to raise its bridges to the present height, constituted a contract for good consideration between the parties, seems too plain for argument, as it expressly appears that prior to this time the city itself was subjected to the burden of constructing and maintaining the sidewalks on the.bridg’e and approaches thereto, which burden as a consideration for the privilege of raising the said bridges to their present height, the plaintiff from that time assumed.
    It has also been uniformly held by the courts that such legislative grants acted on were contracts, the obligation of which could not be impaired, under the above provision of the constitution, from the celebrated Dartmouth College case, 4 Wheat., 518, to the present time. Western Paving Co. v. Street Ry. Co., 128 Ind., 526; St. Tammany Water Works Co. v. N. O. Water Works Co., 120 U. S., 64.
    But it is urged by defendant’s attorneys that as the ordinances for the so-called improvement are presumed to be passed by the city council in its discretion for the public benefit, that this constitutional provision does not apply to this ease. The state (nor city acting under its authority) has no more right by law to impair the obligation of its own. contracts, than it has to impair the obligation of the contracts of individuals. Fletcher v. Peck, 6 Cranch, 88; State v. Wilson, 7 Cranch, 164; Green v. Biddle, 8 Wheat., 1; Bank v. Billings, 4 Pet., 514; Woodruff v. Trapnall, 10 How., 190; Wolf v. New Orleans, 103 U. S., 358.

      Fifth — We claim that the overhead bridges of the plaintiff sought to be removed by the defendant, ■ are parts, respectively, of public highways, under the sole control, so far as the grading of the highways are concerned and keeping them in repair, of the county commissioners, and that the defendant has no control of the highways there, except for police purposes only. Sec. 4906, Revised Statutes.
    It is claimed that the Steubenville case, 23 Ohio St., 610, holds that under the act of 1869, 66 O. L., 222, now Revised Statutes, section 2640, the city council has entire control of streets situated within its territory, but that was a suit for damages against the city to recover for negligence of a contractor to whom the city had let a job of laying sewer or gas pipe, and of course the city would be holding; but even if that ease, construing the effect, of section 2640, could otherwise apply to the ease at bar, section 4906 was passed in 1878 (75 O. L., 33, section 2),nine years after, and five years after the decision of the Steubenville case, at the December term, 1893, and with reference to the prior act as it then existed, so that by the passage of section 4906, there can be no doubt but that the legislature had in mind the decision of the Steuben-ville case, and intended by that act to give such highways into the exclusive control of the county commissioners, if the Steubenville ease could be held to have decided otherwise.

      W. H. Hubbard and B. B. Kingsbury, for defendant in error.
    1. The claim is made by the plaintiff in error that these highways were within the care, supervision and control of the county commissioners and not of the city council. But this claim of the plaintiff is settled by the statute and the decisions of this court. Being within the territorial limits of the corporation, these public highways are within the exclusive care, supervision and control of the city council. Sections 2640, 2650, Revised Statutes; City of Steubenville v. King, 23 Ohio St., 611; Railroad Co. v. Commissioners, 35 Ohio St., 1; 43 Ohio St., 451.
    Revised Statutes, section 4906, is manifestly intended only to apply to the improyed . roads described in section 4876, of the same chapter. ■
    These highways and bridges were, therefore, by the terms of the statute, within the exclusive care, supervision and control of the council of the defendant in error, and it was thereby made the duty of said council to keep the same open and in repair and free from nuisance. Sections 1692, 2263,2301, 2302, Revised Statutes. By these sections the council is clearly granted power to establish the grade of any street or highway within the corporate limits or. to change the grade so established and establish a new grade in such street or public highway, and to improve the same by making such street or highway to conform to the grade so established, by excavating- or filling- up the surface, as may be required. This power is necessarily included in the grant of power contained in section 1692, and by section 2640 is to be exercised by the council. It is a continuing power to be exercised from time to time whenever in the opinion of the council the exercise thereof is necessary. Smith v. Corporation of Washington, 20 How., 135.
    And this power of the council has been recognized by this court in a large number of decisions, from among whichwe cite the following: Goodlow v. City of Cincinnati, 4 Ohio, 500; Smith v. City of Cincinnati, 4 Ohio, 514; Crawford v. Village of Delaware, 7 Ohio St., 460; McCombs v. Town Council, Akron, 15 Ohio, 475; Town Council of Akron v. McCombs, 18 Ohio, 229; Street Railway v. Cumminsville, 14 Ohio St., 523; City of Cincinnati v. Penny, 21 Ohio St., 499; City of Youngstown v. Moore, 30 Ohio St., 133; Keating v. The City of Cincinnati, 38 Ohio St., 141; Akron v. Chamberlain Co., 34 Ohio St., 328; Lima v. The Cemetery Association, 42 Ohio St., 128; Cincinnati v. Whetstone, 47 Ohio St., 196; Cincinnati v. Sherike, 47 Ohio St., 218.
    And it can make no difference that to carry out the improvement provided for, the bridges must be taken down and removed. These bridges, although constructed by the receiver, are no part of the railroad. They are parts of the streets. At common law a bridge is a part of the highway which it serves to make more serviceable to the public, and this is the general rule in this country. 2 Beach Pub. Corp., No. 1470; Rex. v. Sainthill, 2 Ld. Raymond, 1174; Westfield Borough v. Tioga Co., 150 Penn. St., 152; Rapho Twp. v. Moore, 68 Pa. St., 404; Penn Twp. v. Perry Co., 78 Pa. St., 457; Commissioners v. Bridge Co., 12 Cush., 243; Whitehall v. Gloucester, 40 N. J. L., 302; Read v. City of Camden, 24 Atl. Rep., 549; 1 Dillon’s Mun. Corp., sections 94, 95, (4th ed.); 2 Dillon’s Mun. Corp., section 686 (4th ed.); 2 Beach on Pub. Corp., sections 1118, 1194; 15 Am. and Eng. Ency. of Law, p. 1046, par. 5.

      To warrant the interference by the court with the exercise by the council of its discretion in these matters, on the ground, of fraud, the fraud must not only be alleged, but proven. The evidence offered by the plaintiff and excluded by the court below on the objection of the defendant, did not tend to prove any charge of fraud or oppression. Clearly the evidence offered was impertinent and immaterial and was properly excluded. No other evidence was even offered for the purpose of sustaining the charge of fraud.
    2. It is contended by counsel for plaintiff in error, that the ordinance of 1887, and the acceptance of it, and the construction of the bridges thereunder by the receiver, constituted a contract between the city and the receiver, and the plaintiff in error, as purchaser of the railroad at judicial sale, by reason of its privity with said receiver, whereby the city agreed, for a valuable consideration, that said highways should perpetually cross said railroad, by means of said bridges, or other bridges of similar height and manner of construction.
    If this were the intent and purport of the ordinance, it would be a bartering- and ceding away by the city and its council of the legislative rights, powers and duties of the city council over and in regard to the streets and bridges in question and would consequently ' be void. 1 Dillon’s Mun. Corp., section 97, and authorities cited in note 3. Thomas v. Richmond, 12 Wall., 349; Jackson v. Bowman, 39 Miss., 671; Indianapolis v. Indianapolis Gas Co., 66 Ind., 396.
    The power to improve and grade streets is a continuing and inalienable power. 1 Dillon’s Mun. Corp., section 685.

      The powers of a municipal corporation in respect to opening, improving and controlling its streets, are held in trust for the public benefit, and cannot be surrendered by contract to private persons, or-to a corporation, by resolution of the common council, or in any other manner. 2 Beach on Pub. Corp., section 1208, Am. and Eng. Ency. of Law, volume 15, pages 1042, 1043 and 1045; City of Detroit v. Ft. Wayne & R. Ry. Co., 51 N. W., 688.
    The right of a railroad company to run its trains across a street is strictly subordinate to .the public right of'ordinary travel. Houston and T. O. Ry. Co. v. Carson, 1 S. W., 107; 66 Tex., 345; Grand Rapids v. Grand Rapids & C. R. Co., 66 Mich., 42; Dillon’s Mun. Corp. (4th edition), No. 716; Davis v. Mayor, 14 N. Y., 506; People's Railroad v. Memphis Railroad, 10 Wall., 38; 2 Beach on Pub. Corp., page 1196, note 1; Gas Light and Coke Co. v. City of Columbus, XXIX Law Bull., 132; Railway Co. v. City of Quincy, 28 N. E. Rep., 1069; Railroad Co. v. People, 27 N. E. Rep., 200; Railroad Co. v. Chicago, 12 Ill., 176; Railroad Co. v. City of Belleville, 122 Ill., 376; People v. City of Brooklyn, 65 N. Y., 349; Railway Co. v. ----, 8 Bush., 415.
    If the ordinance of 1887 is to be given the construction contended for by the plaintiff in error it would be void, not by reason of any defects in the manner in which powers vested in the council were exercised, but because it is wholly ulVra vires, and beyond the power of the city or its council to make or enter into. There can, therefore, be no estoppel arising- under it, for the rule is well settled that in such cases the person contracting with the city is bound to know whether the contract is within the power of the city or council to make, and contracts at his peril. 1 Dillon’s Mun. Corp., 457; 1 Beach Pub. Corp., sections 217, 219, 241, 242, 243, 248, 625, 627, 628; Elster v. Springfield, 49 Ohio St., 84.
    But the ordinance of 1887 cannot be said to have been passed under the provisions of section 3283. At the time of its adoption the railroad had been constructed across these highways for nearly thirty years. Its roadbed and track was practically of the same grade and construction as it had been during all that time. It is in legal effect but a mere license to the receiver to construct these bridges as parts of the highway, and was revocable by the council whenever it should deem best to improve these streets by making some other form of crossing.
    The ordinances of 1892, to enjoin the enforcement of which, the plaintiff in error brought its original action, do not in any way attempt to rescind the grant of the right of way, or affect the grade or construction of the railroad. They do not attempt to require the plaintiff in error to make any new way of crossing these streets, but provide that the expense of making the grade be paid by general taxation.
    They are, therefore, not within the rule laid down by this court in Railroad Co. v. Carthage, 36 Ohio St., 631, but, upon the reasoning of the court in that case, are valid.
    Section 3283, gives the right to the railroad company to contract with the city for the right to use the road, street or public alley for its purposes; that is, to lay its tracks along the street, and the manner, terms and conditions upon which such street,' etc., may be had. It does not, however, abridge or limit the right vested in the city in the care, supervision and control of the streets as provided in section 2640. And section 3324, provides for crossings. The city cannot by contract barter away its legislative power, its right to change the grade of its streets and the manner in which they shall be improved. Nor do we think that section 3283 is intended for such purpose.
    3. The city is not attempting to appropriate any of the property of the railroad company. The right of the company is only to lay its track across the street, other than that, it has no right in the street; in that right the city, in the exercise of its power, do not propose to interfere.
    These bridges were public property, and even if the bridges were to be considered as private property belonging to the railroad company, they were placet] upon the public street subject tobe removed, when the public through its authorized agent, the city council, so determined. The city now, for the first time, has established the grade of these streets. The railroad company can have no higher or better right them abutting lot owners on such streets. City of Cincinnati v. Penny, 21 Ohio St., 499; City of Akron v. Chamberlain Co., 34 Ohio St., 328.
    4. But one other alleged error remains to be noticed, and that is, did the court below err in refusing to admit the so-called expert evidence in relation to the dangerous character of the proposed grade crossings as compared with those now in use? We submit that it did not. An excellent definition of expert evidence, which may be properly introduced, is that given in volume 7, Am. and Eng. Ency. of Law, p. 491.
   Williams, J.

Briefly stated, the propositions urged in argument in support of the plaintiff’s claim to the relief it seeks, are: (1) That the council of the defendant had no jurisdiction over the streets in question, and therefore no authority to order their improvement, because they were originally parts of county roads: (2) That the improvement, if made in conformity with the ordinances of February 7, 1893, will involve the taking of the plaintiff’s property, for ’which no compensation has been paid or tendered: And, (3) that by the ordinance of December 20, 1887, the plaintiff acquired the right to perpetually maintain the bridges as constructed over its roadway where it crosses the streets, and the improvement contemplated, will, necessarily, be a violation of that right, which the plaintiff is entitled to prevent by injunction. These propositions may be conveniently considered in the order stated.

(1) It appears from the uncontroverted allega-tions of the pleadings, that when the railway now operated by the plaintiff was constructed through the county of Defiance, the Brunersburg and Holgate roads were county roads leading to, and connecting with the streets of the incorporated village of Defiance, and were crossed by the rail-' road a short distance outside of the corporate limits of that village. The crossings were made by cutting through the roadways and placing the railroad track about eighteen feet lower than their traveled surface. Wooden bridges were built over the track from one side of the cut to the other. Afterward, and before 1887, the corporate limits of the village were so extended, by the annexation of contiguous territory, as to embrace the portions of the highways mentioned, at and beyond the place where the railroad so crossed them; that portion of the Brunersburg road included in the annexation being since known as Ralston avenue, and the. part of the Holgate road so included, as North Clinton street. To enjoin the improvement of these streets, by grading, under the ordinances of February 7, 1893, was the purpose of the plaintiff’s action. While counsel for the plaintiff concede that the parts of the county roads so brought within the defendant’s corporate limits became highways of that municipality, they contend it acquired control of them, in the language of the petition, “for police purposes only,” by which we understand counsel to mean, that the defendant was without authority to improve them at all, or, if improved, the expenses should be paid by tax collected from the property of the whole county. This position is, we think, untenable. The highways so brought within the corporate limits of the defendant, were removed from, the control which the ■ county commissioners theretofore had over them, and became subject to the control, supervision, and care of the municipal authorities, like other streets and highways of the corporation. By express statutory provision, the council is given “the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges' within the corporation,” and is charged with the duty of causing “ the same to be kept open and in repair, and free from nuisance. ” Section 2640, Revised Statutes. The duty thus devolved upon the council is attended with the power to do whatever may be necessary in the proper and lawful performance of the duty, including the power to improve such ways, or parts thereof, in any lawful manner, when, and as, the public convenience may demand. Grading a street, and changing its grade, when necessary for its convenient use by the public, are lawful modes of improving the street, and keeping the same open and in repair. Smith v. Washington, 20 How., 135. Our statutes have conferred the power to make such improvements upon all municipal corporations,' and authorized the costs and expenses thereof to be assessed upon all the taxable property within the corporation, as is provided by the ordinances of February 7, 1893, for the improvement of the streets in question. Revised Statutes, sections 1692, 2263, 2301. And the exercise of such power has been repeatedly recognized and upheld by this court. Cincinnati v. Penny, 21 Ohio St., 499; Youngstown v. Moore, 30 Ohio St., 133; Akron v. Chamberlain, 34 Ohio St., 328; Cincinnati v. Whetstone, 47 Ohio St., 196; Cincinnati v. Sherike, Ibid, 218. The bridg.es over the plaintiff’s railroad where it crosses the two streets referred to, are parts of those streets, substitutes for the soil taken out in making the cut for the railroad crossings, and like other parts of the streets, are within the control of the municipal authorities of the defendant. Beach on Pub. Corp., 1470.

But it is claimed that, notwithstanding the corporate boundaries of the defendant were so enlarged as to embrace those portions of the county roads sought to be improved, the exclusive jurisdiction and control of the county commissioners over them is preserved by section 4906, of the Revised Statutes, which provides that: “The commissioners shall keep in repair such portion of such roads' within their respective counties as have since their completion been included, or may hereafter be included, within the corporate limits of any city or village in such counties, to points therein where the sidewalks have been curbed and guttered, and no further.” This section is a part of the chapter «of the Revised Statutes relating to the repair of improved roads, and the “such roads,” therein referred to, are those mentioned in section 4876, viz.: “McAdamized or graveled roads, which are free roads constructed under general or local laws by taxation or assessment, or both, or converted from a toll road into a free road, and turnpike roads or parts thereof unfinished or abandoned by the company and appropriated or accepted by the commissioners of the county. ” The plaintiff’s petition does not allege, nor does it otherwise appear that either of the county roads, or any portion of either taken into the corporate limits of the defendant, belongs to any of the above mentioned classes of highways; but the contrary is shown by the plaintiff’s evidence. It is quite clear, therefore, that section 4906 has no application to the roads involved in this case; and, where applicable, it has no other effect than to cast on the commissioners the burden of keeping the roads to which it relates in repair, until otherwise improved by the city or village, and does not exclude the power of the municipal authorities to improve them at their discretion.

2. That the taking of private property for a public use, without compensation to the owner, is distinctly forbidden by the constitution of this state, is not doubted. Precisely what property of the plaintiff will be taken in making the improvements entered upon by the • defendant, is not so clear. The plaintiff’s roadway is in no wise disturbed, but remains as it was originally construeted; its franchises are not abridged or affected; nor can it be claimed that it will be deprived of any of its tangible property, unless it be the bridges, whose removal becomes necessary m the construction of ‘the improvements. It certainly has no proprietary interest in the approaches to the bridges, consisting of fills made in the streets, and devoted to the public use when placed there; no private ownership in the soil so placed remained in the plaintiff, nor did the labor or expense of placing it there give the plaintiff any property right in the streets. If it be held that the bridges are not in exactly the same category, but are the property of the plaintiff, it is not shown that they, or the material in them were, or will be appropriated by the defendant, or the plaintiff otherwise deprived of them; nor does it appear that any other property of the plaintiff will be taken by the contemplated grading of the streets. With respect to the plaintiff’s road and right of way on either side of the streets, the most that can be claimed for it is, that the plaintiff is the owner of property abutting on the streets, and, like other abutting owners, has an easement in the streets, appendant to its property. If so, its rights are not different from ■ those of other proprietors whose property abuts upon the streets. The rights of such owners are well defined. Since the case of Crawford v. Delaware, 7 Ohio St., 460, it has been the settled law of this state, that the owner of an unimproved lot, or of unimproved land abutting upon a street, is not entitled to compensation or damages from the municipality for grading the street, because he is presumed to have acquired his property subject to the right to make all reasonable and proper improvements of the street; nor, where he improves his lot or land before the grade of the street has been established, is he entitled to compensation or damages for a subsequent reasonable and proper grading of the street, unless he used due care to make his improvement with reference to the establishment of such a grade; but, when his improvement has been made in accordance with an established grade which is afterward changed, he is entitled to compensation for the injury resulting therefrom. Railwy v. Cumminsville, 14 Ohio St., 523; Cincinnati v. Penny, 21 Ohio St., 499; Youngstown v. Moore, 30 Ohio St., 133. In addition to the fact, that when the plaintiff’s railroad was originally constructed across what are now known as Ralston avenue, and North Clinton street, they were, at the places of crossing, county roads outside of the corporate boundaries of the defendant, the record discloses that no grade of either had been established, nor was any building erected or other improvement made on the plaintiff’s property, on either side of either of those roads, nor was any constructed thereon before the passage of the ordinance of December 20, 1887; and none has been since that time; but the property of the plaintiff has remained, and still is in the same condition, in these respects, that it was when the crossings were first made; so that, conceding1 the ordinance, and the construction of the bridges under it, had the effect, so far as the plaintiff’s rights are concerned, of establishing the grades of those streets at the places of their intersection with the railroad, in accordance with the location of the bridges, it cannot be claimed, and is not, as we understand, that plaintiff improved its property with reference to such grade, or any established grade, or made any change in its condition on account of the ordinance, except to build the bridges and approaches. But, however that may be, to whatever extent the plaintiff’s property will be taken, or its rights invaded, or injury be sustained by the making of the contemplated grade, for which the plaintiff may lawfully claim compensation, ample provision is made by the law under which the proceeding was instituted, whereby the plaintiff might have had full compensation and damages assessed in the mode required by the constitution. It is shown by the allegations of the answer not denied by the reply, and therefore admitted, that the council of the defendant, in conformity with section 2304, of the Revised Statutes, duly declared, by resolution, the necessity of the proposed improvement, and gave the plaintiff the requisite twenty days written notice of its passage, and published the resolution for the leng-th of time, and in the manner required by that section; and, it is further shown that the plaintiff filed no claim whatever for compensation or damages. Section 2315, makes it necessary for persons who claim they “will sustain damages by reason of the improvement,” to file their claim therefor, with the clerk of the corporation, within two weeks ‘ ‘after the service, or completion of the publication of the notice mentioned in section 2304,” and contains the further provision, that persons who fail to so file their claim “shall be .deemed to have waived the same, and shall be, barred from filing a claim or receiving damages.” The statute then provides that, at the expiration of the time limited for filing claims for damages, the council shall determine whether it will proceed with the improvement or not; also, whether the claims for damages filed shall be judicially inquired into before commencing the improvement, or after its completion. Section 2316. And when the council determine to go on with the improvement, provision is made for impanelling a jury either in the court of common pleas, or probate court, to inquire into, and assess the' damages, either before the improvement is commenced, or after its completion, as the council may determine; but such inquiry and assessment shall be confined to the claims which have been filed as above stated. Sections 2317, 2318. These statutes have been in force and acted upon for many years, and we are not aware their constitutionality has been called in question. Similar provisions in the county and township road laws, in regard to the waiver of the right to compensation for property taken, by failure of the owner to file his claim in writing with the viewers, have been held constitutional by this court. Reckner v. Warner, 22 Ohio St., 275; Anderson v. McKinney, 24 Ohio St., 467; Frevert v. Finfrock, 31 Ohio St., 621. The principle of the cases cited, is applicable to the street improvement statutes we have referred to, and under them the plaintiff’s claim to compensation, if any it had, was waived and barred by the failure to file it within the time required. The plaintiff is charged with the knowledge of the law, and, in the absence of any showing to the contrary, must be presumed to have voluntarily withheld its claim for compensation and damag’es, and thus prevented an inquiry into, and assessment of them; and it seems clear, that an owner who has been afforded an opportunity of having compensation and damages assessed him, in the constitutional mode, for property taken or injured in the making of a street improvement, and has failed to avail himself of that opportunity, cannot, after having thus waived his right, enjoin the improvement on the ground that compensation has not been paid or tendered him.

3. After the adoption, by the defendant, of the ordinance of December 20, 1887, the receiver then having charge of the railroad now owned by the plaintiff, constructed the bridges over the railway track where it crosses the streets named in the ordinance, in. accordance with its requirements, whereby, it is claimed, a contract arose between the defendant and receiver, the benefits and burdens of which have passed to the plaintiff, under which the plaintiff is entitled to perpetually maintain, and have maintained, the bridges and crossings in the situation and condition they were placed in when the bridges were so constructed. The making’ of the grades of the streets in conformity with the ordinances of February 7, 1893, will necessitate the removal of the bridges, and the substitution of grade, for what are now overhead crossings, which, the plaintiff contends, will be a breach of the contract, causing- it irreparable injury, that should be prevented by injunction. Ordinarily a threatened violation of a contract is not a ground for injunction; but without stopping to discuss the propriety of the remedy adopted for the apprehended injury, and assuming- no action at law would be adequate for its redress, if the right were established, we proceed to inquire into the existence of the alleged contract, and its scope and effect, if it be found that one arose under the ordinance. It seems well settled, that the legislative and administrative powers with which municipal corporations are invested, are held by them in trust, for public purposes, and cannot be relinquished, or their exercise surrendered, or ceded away, except when, and to the extent, legislative authority, is clearly given to do so. Such powers are essential to the preservation and well being of populous communities, and without them the purposes of the corporation would fail of accomplishment. These powers, among which are those pertaining to the opening, improving, and keeping in repair the streets and highways of the municipalities, are necessarily continuing in their nature, to be exercised from time to time as the public interest may require; and it would be incompatible with their essential purpose to permit the officers of the municipal body, by agreement or otherwise, to prevent or defeat their proper exercise, either by themselves or their successors, at any time when the public occasion may call for their exercise. Any attempt to do so must be ineffectual, unless clearly authorized by the charter, or laws governing the municipal corporation. And, not only is authority of that nature essential to the validity of such an act, but every grant in derogation of the right of the public in the free and unobstructed use of the streets, or restrictive of the control of the proper ag’encies of the municipal body over them, or of the legitimate exercise of their, powers in the public interest, will be construed strictly ag-ainst the grantee, and liberally in favor of the public; nothing will be implied beyond the express terms of the grant, not indispensable to give effect to the grant. That such is the law, counsel for plaintiff do not deny; but they insist that express legislative authority to make the grant on which they rely, is found in section 3283, of the Revised Statutes, which reads as follows:

“If it be necessary in the location of any part of a railroad to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, .owning or having-charge thereof, and the company may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road or ground shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track.”

It may be observed, that the extent of the authority conferred by this statute, on municipal corporations, is to agree with railroad companies upon the manner, terms and conditions upon which a street, etc., may be used and occupied by a railroad, “if it be necessary in the location” of the railroad, for any part of it to occupy such street, etc.; and then, they may agree for the use of so much of the street only as is necessary for the purposes of the railroad. This limitation is manifest from the provision, that if the parties are unable to agree, the company may appropriate so much of the street as is necessary for the purposes of its road. The object of the appropriation is to acquire such use of the street, etc., as could have been granted by agreement; and no greater use can be obtained in the one mode, than in the other; the right acquired in either, is limited to the use of so much of the street as may be necessary for the purposes “of the railroad.” The statute, we think, does not contemplate the destruction of the street, or the cessation of its use by the public, or its withdrawal from the control and supervision of the propei* municipal officers; nor is authority found in it for any agreement having such results. On the contrary, the statute recognizes the street so burdened with a railroad, as a “public street,” with all that term imports. By the next section (3284), whenever, in the construction of a railroad, a public road is crossed or diverted from its location, the company is required without unnecessary delay, to place the road ‘ ‘ in such condition as not to impair its former usefulness.” As we have seen, when the railway now owned by the plaintiff was constructed, the two streets in question were public roads; and, it is alleged in the petition, that the company which built the railroad, in compliance with its duty under the above statute, which was then in force, erected bridges over its track, and made the approaches to them, in order to restore the roads to their former usefulness for public travel. That the bridges and approaches became parts of the public roads, and continued to be so, under the control of the county commissioners, down to the time they were taken into the corporate limits of 'the defendant, is beyond question; and they were undoubtedly parts of the public streets of the defendant, under its supervision and control, when the ordinance of December 20,1887, was passed. That ordinance, in terms, grants to the railroad company permission to put new bridges of a specified description where the old ones then were, place them three feet higher above the railroad track, and raise the approaches accordingly; it does nothing more. It is plain that the grant, neither in terms nor by necessary implication, divests the defendant of its control over the streets, nor relieves it of its duty to keep them open, in repair, and free from nuisance ; nor, does it purport to obligate the defendant to abstain from the lawful exercise of its powers to make further improvements of the streets as the public interest may from time to time demand. The obvious purpose in granting the permission to put up the new bridges, was to preserve and promote the free and unobstructed use of the streets by the public, and not to destroy them as public thoroughfares, or invest the railroad company with an interest in, or control over them, nor to enable the company forever and unalterably to maintain the bridges as put up. True, the ordinance imposes the burden upon the company “at all times” to keep the bridges and approaches in repair, but that must mean, at all times while the proper performance of the defendant’s statutory duties with respect to the streets permits them to remain; and when removed in consequence of an improvement of the street, the company will, of course be relieved of the burden. It is not apparent that the expenditure of money and labor in the construction of the bridges, as a condition or consideration for the privilege of placing them in the street, can give rise to any legal right or consequence different from what would result from the like expenditure in putting a street, where a railroad crosses it at grade, in a condition to preserve its usefulness as such; and it would hardly he claimed in the latter case, that the municipality having jurisdiction over the street, would he disabled from so improving- it as to necessitate an overhead, instead of a grade crossing, notwithstanding it had previously authorized the grade crossing- to be made, or to be raised or lowered after it was made. In either case, the public use continues to be the dominant interest in the street, and the crossing subject to such changes, necessary to subserve that interest, as the proper officers of the municipality may choose to make, in the exercise of their statutory powers, which do not defeat those uses of the crossing by the railroad company that are necessary in the prosecution of its business. We are aware the petition of the plaintiff alleges that overhead crossings, substantially as they now exist over its track in these streets, are absolutely essential to the safe use of the railroad in those places. But this allegation is denied by the answer, and the issue of fact was found against the plaintiff by the court below. We are not required to examine the evidence to ascem tain whether it sustains the findings, but it is apparent the most that can be said in support of this claim of the plaintiff is, that the contemplated grade crossings may require greater care on its part in operating its road, as it also may on the part of the persons using them, and thus subject it to some inconveniences, and if negligent, to losses. It is well known, however, that very many railroad crossing’s are of that kind, and roads are extensively operated over them in numerous instances, in populous cities where great numbers of trains, people, and vehicles pass daily, and have been since the use of railroads began; and the inconveniences to which plaintiff may be subjected on account of the change in the character of the crossing’s, cannot deprive the defendant of its right, or absolve it from its duty to cause needed improvements of the streets to be made. Middlesex Railroad Co. v. Wakefield, 103 Mass., 263; C., B. & Q. R. R. Co. v. Quincy, 136 Ill., 563. The comparative safety of overhead and grade crossings, and the increased dangers which would arise from the making of the changes provided for by the ordinances, were important matters for the consideration of the members of the council in determining whether the ordinances should be adopted; and it must be presumed they received full and fair consideration, and candid decision. Recent tendency is undoubtedly in the direction of abolishing grade crossings, as far as practicable, and that tendency deserves encouragement; but, that they must continue to be used, in many, if not most instances, is quite probable, and in some instances are the only practicable and available kind of crossing’. In behalf of the action of the defendant in this case, it is claimed that the elevation made in the streets by the increased height of the bridges, renders travel, and traffic with loaded vehicles, over them so difficult that they constitute substantial obstructions of the streets, which, together with the growth in population of the defendant and the surrounding vicinity, require the changes proposed by the ordinances, in order to meet the present public necessities in the uses of the streets. The relative public benefits and private disadvantages that might result, called for the best judgment of the members of the council, and their decision, when not transcending their powers, or induced by fraud, is beyond the control of the courts. The proper interpretation of our statutes, requires us to hold, that the defendant was without authority to yield the control of the streets, by ordinance, or otherwise, to the railroad company, or relinquish or restrict any of its powers with respect to the improvement of them, or discharge itself from any of its statutory duties concerning them. But aside from the want of authority to accomplish that result, we are convinced the ordinance of December 20, 1887, has not the operation claimed for it by the plaintiff. The agreement, if one arose from its acceptance, was not one made “in the location” of the railroad in the defendant’s streets, as to “the manner, terms, and conditions upon which the same might be used or occupied” by the railroad, for it had long before that been located and constructed, and still remains unchanged, and unmolested as originally located and constructed; nor, can it be regarded as an agreement upon terms, etc., for the right of further occupancy and use of the streets, because that was unnecessary, the right existing in virtue of the original construction of the road; nor, what is more important, does the ordinance relate to the use or occupancy of the streets by the railroad, but rather to the keeping of the streets in a condition to preserve their usefulness as public thoroughfares. The agreement, therefore, is not within the purview of section 3283, but is more appropriately referable to the succeeding section (3284), which requires a railroad company whose road crosses a public highway to put the latter in a condition that it will not impair its usefulness as such. This provision, it seems, is substantially the common law rule on the subject, which, it. is held, imposes the duty upon a railroad company constructing its road across a public hig’hway, to restore, or reunite the highway at its own expense, by reasonably safe and convenient means of passage, although the charter, or statute authorizing the construction of the railroad contains no express provision to that effect; and the duty so imposed, it is held, has reference to future contingencies, and requires the company, from time to time, to put the highway in such condition.as changed circumstances may render necessary. State v. Railway Co., 35 Minn., 131.

Again, when the ordinance was passed, those statutory provisions were in force which invest the legislative bodies of municipal corporations with the entire control of the streets, and confer upon them power to make improvements thereof from time to time in the public interest, by grading, etc.; and persons and corporations contracting with the municipal authorities, must be presumed to contract with reference to the obligations and duties arising under those laws, and subject to the consequences resulting from their operation and enforcement. Impliedly, they enter into and become a part of such contracts, as much so as if embodied therein, and such is the presumed intention of the parties. "When, therefore, those laws are put in operation, it cannot be said that the obligation of the contract is impaired, but rather that full effect is given to the contract according to its true scope and intent. Smith v. Parsons, 1 Ohio, 236; Weil v. State, 46 Ohio St., 450. “The obligation of a contract,” says Judge Cooley, in his work on Constitutional Limitations, page 345, “depends on the laws in existence when it was made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by one party, and the right acquired by the other.” And in the application of the rule, to a ease analogous to the one before us, it is said by the Supreme Court of Illinois, in the opinion by Scholfleld, C. J.: “It can not be said that the right of the railroad company granted by the deed of the city is impaired by this improvement, for the reason that the grant is subject, by implication, to the exercise of this power by the city, for such grants are construed- strictly as against the railroad company and liberally in favor of the •public, and nothing- can therefore be implied in favor of the grantee, beyond the express letter of the grant, unless it shall be indispensable to give effect to the grant, (Railroad Co. v. Chicago, 121 Ill., 176; Railroad Co. v. City of Belleville, 122 Ill., 376, 12 N. E. R., 680), and it is not indispensable to give effect to this grant that the city shall have no right to improve the parts of the street on which appellant’s tracks are laid. The fact that the railroad company agreed to so grade the streets and so lay the railroad tracks that carriages, wagons, etc., may conveniently cross the same, does not deprive the city of the power, nor absolve it from the duty, to keep the street in a safe and proper condition. ” C., B. & Q. R. R. Co. v. Quincy; 139 Ill., 355.

In our opinion, the ordinance of December 20, 1887, constitutes no valid objection to the improvements which the council of the defendant, by the ordinances of February 7,1893, ordered to be made. It is suggested this conclusion is in conflict with the cases of the Railway Company v. Carthage, 36 Ohio St., 631, and the Phiia. W. & B. R. Co.’s Appeal, 121 Pa. St., 44. But we think not. In the first of those cases the contract was made at the time of the location of the railroad, and was an agreement in regard to the terms on which the railroad might occupy the streets of the village, and ‘was, therefore, strictly within section 3283, of the Revised Statutes; and, it is especially to be noticed, that under such an agreement, the power of the municipal authorities to improve the streets, notwithstanding the location of the railroad in them, while not involved in the action, is recognized by the court in the opinion.

In the Pennsylvania case, the city of Chester, under a special act of the legislature authorizing it to do so, entered into a contract with the railroad company to establish the grade of a ■ street about to be opened, eighteen feet above the railroad track, and the company agreed to construct a bridge over the track. The act declared that the contract when made, should be as valid and effectual to transfer the rights and privileges therein contracted for to the railroad company, as if made between individuals; and it further authorized the company to maintain its bridge so long as the street remained open. In the decision of the case, stress -is placed on these provisions, the first of which put the contract on the same footing as ag’reements between individuals, and took it out of that general rule applicable to agreements of municipal bodies which leaves them at liberty to exercise their legislative powers whenever necessary for public purposes, and the latter expressly fixed the duration of the contract, which, having been made in execution of the power conferred by the statute, was intended to be as comprehensive as the statute permitted. Both eases are essentially different from the one before us.

4. A question is made on the competency of testimony offered by the plaintiff, which the court excluded, consisting, first, of the opinions of witnesses in regard to the dangers which would, or might ensue in operating the railroad, if the ordinances of February 7, 1893, should be carried into effect; and second, the oral discussions of members of the defendant’s council, while the ordinances were under consideration by that body. As an example of the first, an expert engineer, who had fully testified to the condition of the crossing, and all the circumstances of their situations and surroundings, was asked, “what would be the effect upon the business of the company, and its relations to the public, if the ordinances of 1893 were carried into effect?” We think the opinion called for by the question is somewhat beyond the range of expert testimony. This witness, and others were also asked to give an opinion as to whether the crossings could be made safe for the public and railroad employes, if the grades were made as the ordinances required; and other questions were put, varying in form, to obtain opinions on the same subject. The trial was to the court, and the extent to which such testimony should be received and considered, was largely in its discretion. We must assume the court gave due consideration to the facts proven, and the opinions of witnesses might, or not, aid the court in arriving at a correct decision upon the issues of the case. The average individual possessed of all the facts, would be competent to form a conclusion in regard to the dangers of the crossings, unaided by the opinions of persons experienced in operating railroads. The exclusion of this testimony, and of the arguments advanced by members of the council for or against the passage of the ordinances, is not of sufficient consequence to require the reversal of the judgment. If competent, and we do not say it was, it is not apparent that the plaintiff was prejudiced by its exclusion. The final action of the council in the adoption of the ordinances, gave them their validity; and the vote on their adoption was the exercise, by the members of that body, of their deliberate judgment, after all the consideration they had given the subject. Of the necessity or expediency of the improvements thereby directed to be made, they were the sole judges, and in the absence of fraud, their determination upon those questions cannot be judicially revised. Dillon on Mun. Cor., sections 94, 95, 686; Beach on Pub. Corp., sections 1205, 1112, 1118.

The petition of the plaintiff contains a charge of fraud, but that having been put in issue, appears to have been abandoned at the trial, as no evidence was offered to sustain it, and the trial court found against it; and the making of improvements, of the nature provided for by the ordinances, was, as we have seen, within the statutory powers of the council. After a careful examination, we have discovered no error in the record, which warrants the reversal of the judgment below.

Judgment affirmed.