tial injuries peculiar to them, and to which the general public are not liable, authorize the interposition of preventive equity. It is true that it is not the amount of pecuniary injury which authorizes such relief. If the injury goes to the substance of the right, and is of such a character that reasonable redress cannot be had at law, the chancellor will, with the arm of equity, stay the impending wrong. Whether any special and substantial injury will result to the adjoining owners in this instance is, however, as yet, a mere matter of speculation; and, if any, its character or extent cannot now be ascertained. If such should accrue, its extent can be much better estimated after the road is in operation; and, at most, it would be a matter of mere damage for which the law affords an adequate remedy. Undoubtedly, if the structure shall be so located as to unreasonably obstruct the abutting lot-owner's means of egress and ingress from and to his lot, or if he suffers substantial injury by having smoke, sparks, or cinders thrown into his house, or its walls be cracked by the movement of heavy trains, he would be entitled to recover for damages directly resulting from such cause. This is because a private right would then be invaded, and a direct substantial damage sustained. Jefferson, M. & I. R. Co. v. Esterle, supra; and Elizabethtown, etc., R. Co. v. Combs, supra. It was said, however, in the case of Lexington & O. R. Co. v. Applegate, supra: "But both public policy and a long series of adjudged cases require that a public improvement so beneficent in its general operations and results, and more especially when, as in this case, sanctioned by the legislature and the representatives of the local public, should not be destroyed or suspended by the injunction of a chancellor, unless strong reasons for doing it be conclusively manifested." This reason applies with peculiar force in this instance. The proposed work is one likely to redound largely to the public interest, and that of a commercial metropolis. The road will connect the railroads coming into the city upon one side with those reaching it upon the other, thus supplying, as is shown by the testimony, a now much-needed connection; while, upon the other hand, it is as yet a matter of conjecture what injury, if any, will accrue to the lot-owner, and, if any, he is not remediless. The law of course will not override individual right in order that a public benefit may accrue; but, under such circumstances, the facts should be clearly shown, and the ground made manifest, before the chancellor should interpose. Judgment affirmed.

LEWIS, J., not sitting.

Authority to Tunnel Under Street Implied from Grant and Necessity. Baltimore, etc., R. Co. v. Reaney, 42 Md. 117; s. c., 14 Am. Ry. Rep. 330, is a decision somewhat analogous to the principal case. It is there held that authority to tunnel under the streets of a city by a railway company may be

implied from the grant and the necessities of its execution. The court say: "We are of opinion that the appellants had ample authority to tunnel the streets, derived both from the city and the State legislature. The appellants' original charter of 1853, chapter 194, manifestly did not contemplate the use of the streets of the city for the purposes of a tunnel; but the mayor and city council, by ordinance of the 29th of May, 1869, authorized such use, as far as they were competent, and prescribed the manner of its exercise. Whether the mayor and city council were competent to confer any such power in the use of the streets, is a question that need not now be decided; as the legislature, by the act of 1870, chapter 80, sanctioned and ratified the authority given by the city ordinance. It is true this latter act of 1870, being an amendment of the appellants' original charter, contains no express terms of ratification, but the terms used, in the 7th section, are equivalent to terms of express ratification. The authority given by the city to make the tunnel is recognized, and there is power given to charge additional freights and tolls for its use. This is a clear ratification, or grant of authority, at least by implication; and it is settled that such authority may be granted by implication."

TOWN OF JAMESTOWN

v.

CHICAGO, BURLINGTON AND NORTHERN R. Co.

(Advance Case, Wisconsin. November 1, 1887.)

Under the Wisconsin statute (Rev. St. sec. 1828-1836), by which railway companies are authorized to construct their road-beds along, across, or upon highways, on condition that they restore such highways to their former state of usefulness, a town which has the duty imposed upon it by law to repair highways within its limits and to remove obstructions therefrom, may maintain an action for an injunction to compel a railway company which has, in constructing its road-bed upon the highway within the limits of the town, practically destroyed the highway, to restore the highway to its former state of usefulness. Where in such an action, began in January, 1886, the plaintiff alleges that the destruction began in 1884 and that plaintiff had requested the company to restore such highway to its former state and that the request had not been complied with, the plaintiff shows prima facie that ample time to restore the highway had elapsed.

APPEAL from circuit court, Grant county.

Demurrer to complaint in an action begun on January 19, 1886. Glark & Mills for respondent.

Orr & Lowry and Cameron, Losey & Traer for appellant.

COLE, C. J.-Though this is an appeal from an order refusing to strike from the files (and overruling the demurrer) the amended complaint, because the cause of action has been changed from one at law to one in equity, still no objection is now CHANGE taken to the order on account of such change. The CAUSE OF ACTION. original complaint was doubtless based upon legal action to

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recover damages for the destruction of a highway of the town but there were two amended complaints subsequently served and filed, asking equitable relief. These complaints were excepted and demurred to on the ground that they did not state a cause of action; but no objection was taken that an unauthorized amendment had been made which changed the action from one at law to one in equity. Under the circumstances, the learned circuit court held that the objection to strike the amended complaint from the files for that reason had been waived, and at the same time over ruled the demurrer. We think the court was right in the view it took of the matter; at all events no objection is now taken to the order on account of the change in the cause of action. That point need not further be considered, and we pass to the questions raised by the demurrer.

FACTS.

The action is for a mandatory injunction to compel the defendant company to restore to its former state of usefulness a public highway which it has practically destroyed in making its railroad track. It is alleged, in substance, that there was a public highway, of great importance to the residents of the town, which extended along the bottom and bluffs of the Mississippi river on the east side, which had been used and worked by the town for many years, and which afforded the only convenient communication to market for those citizens of the town who resided on the bottom and adjacent bluffs of the river. It is alleged that the Winona, Alma and Northern R., the predecessor of the defendant company, began to trespass and destroy this highway in the year 1884, and that this destruction has been continued by the defendant company to the commencement of this suit that the defendant in building its road has taken possession of many portions of the highway, and by excavation, digging, and piling dirt upon them, by grading its track, has rendered the highway wholly impassable and useless for travel; that there is not space enough in many places between the bluff and the river for the railroad track and highway; and that it is impossible for the town to construct a new highway by the side of the railroad without great and unnecessary expense of at least $5000, and without first destroying the railroad track. The relief asked is that the defendant be enjoined from further obstructing the highway, and that it be ordered to restore it to its former state, or to such conaition that its usefulness will not be materially impaired as a high

way.

The main objection to the complaint is that the town has no right to bring the action; that it has no such interest in the preservation and protection of the highways within its limits as will warrant it in invoking the relief sought. This question is a new one in this court, so far as we are advised; but we are inclined to sustain the action upon this ground: Towns in this State are re

ACTION FOR IN-
WILL

LIE.

sponsible for the construction and repair of all highways within their limits. They are liable for damages to travellers occasioned by obstructions and defects, and they should JUNCTION have legal remedies commensurate in some degree to their liability. The statute gives to the supervisors of towns care of highways in their respective towns, and makes it their duty to see that they are kept in repair, and to cause to be removed all obstructions therefrom. Section 1223. It seems to be the policy of all legislation upon the subject that the officers of the town shall be charged with the duty of preserving and repairing highways, and of keeping them in a suitable condition for travel. Chapter 493, Laws 1887, is in harmony with this legislation, and authorizes town supervisors to enter into contracts or make arrangements with railroad companies in respect to crossing of highways by railroads. Now, in view of all this legislation, we are inclined to hold that a town has a redress for the destruction of one of its highways, and may maintain an action to compel a railroad company to restore it to its former usefulness, where it has impaired it by building its track. Every railroad company is authorized to construct its road-bed across or along the highway, on condition that it restore such highway to its former state of usefulness. Sections 1828, 1836. Now, the town seeks to enforce the performance of this plain, positive, statutory duty for the benefit of its citizens. The complaint alleges that the town requested the defendant to perform this legal duty, with which request it has failed to comply. Upon the allegations of the complaint it appears prima facie that ample time has elapsed since the defendant destroyed the highway to restore it for public travel. The work of destruction commenced in 1884, but no reparation had been made when this action was brought. Of course, it is impossible to use the railroad track for an ordinary highway. And since the defendant has appropriated the highway for the use of its road, or destroyed it for the purposes of travel, it would seem to be but manifest justice and equity to compel it to perform its duty which the law imposes. It is impossible to say that the town has suffered no special injury by the destruction of the highway which it has made, and upon which it has expended large amounts of labor and money to keep in repair. The injury is of so serious a character that the restoring of the highway to its former condition is the only remedy which will meet the requirements of the case. Upon the facts stated we think the court should exercise its jurisdiction by mandatory injunction to compel the defendant to perform that duty. The authorities upon injunction warrant such an exercise of the writ. Kerr, Inj. 231, 232; 1 High. Inj. § 2; McDonogh v. Calloway, 7 Rob. (La.) 442; Church v. Gristgau, 34 Wis, 328. The case of Inhabitants of Springfield v. Railway, 4 Cush. 63, was a bill in equity to enjoin the defendants from maintaining a

railroad and running cars thereon, upon, and over a public highway in Springfield, on the ground that the railroad was a nuisance. It was held that the inhabitants of the town, in their corporate capacity, had such an interest in the preservation and protection of the highways of the town as would warrant them in applying to the court to restrain and prevent such nuisance. Afterward statute was passed by which jurisdiction in equity was given the court to compel railroad corporations, on the application of the municipal authorities or selectmen of the town, to comply with the orders of the county commissioners respecting the manner of constructing a railroad which crosses a public highway. Brainard v. Railroad, 7 Cush. 506.

But it is said Milwaukee v. Railway, 7 Wis. 85, and Town of Sheboygan v. Railroad, 21 Wis. 675, are authorities against the town's maintaining this suit. In the first case, the city of Milwaukee, by virtue of its interest or property in the streets, attempted to enjoin the railroad company from building its road in the street. It was held that the city had no such property or interest in the streets as would authorize it to maintain the suit. But the question we have been considering was not even alluded to in the case, and, of course, not decided. In the Sheboygan case, it was not clear whether the acts complained of were authorized by the charter or not. But as the right to the injunction depended upon a disputed question, it was held that no injunction should issue until, at least by an action at law, the acts of the company were shown to be illegal. In the opinion this language is used: "Our statute imposes upon towns the obligations of keeping in repair all public highways and bridges within their respective limits. The town, therefore, has an interest of a certain kind in preventing acts destructive of a public highway within its limits, and common to the people at large." We think this remark states the true ground of the right of the town in this case to invoke the equity powers of the court by injunction.

The order of the circuit court, therefore, is affirmed.

See next case, and note.