State ex rel. City of Faribault v. Wisconsin, Minnesota & Pacific Railroad

PER CURIAM.

The questions of law in this case are determined by State v. St. Paul, M. & M. Ry. Co., 35 Minn. 131, 28 N. W. 3, 59 Am. 343, State v. Minn. Transfer Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656, State v. St. Paul, M. & M. Ry. Co., supra, page 380, and State v. Northern Pacific Ry. Co., supra, page 429.

The principal controversy of fact concerns the necessity for the construction of such a viaduct as is required by the permanent writ of mandamus granted by the trial court. That writ left open the exact details of the plans and specifications, so that the only essential question left open for review is the propriety of the court’s finding that a new construction was necessary. The use by the public was not, as defendant insists, merely sporadic or in any sense continuous or insignificant. The street in question led from a principal business street of the city, across the track of the defendant and the Straight *537 •river, immediately adjoining it, to a part of the city in which was situated the •State Institution for the Deaf, the Shattuck School, and a brewery. There was much direct and some incidental traffic on the street. The facts justified the •conclusion of the court that the character of the use of the street by the public .rendered the contemplated viaduct reasonably necessary.

Order affirmed.