Judge McCrary says, "If it be granted that a measurement along a line which deviates from a course directly across the channel is the proper one, then it would follow that the actual passage-way might be less than that required by the Act. The greater the deviation from such a direct line, the less would be the available space between the piers. Such a construction of the Act would defeat the main purpose which Congress had in view in its enactment." We are therefore of the opinion that the Supreme Court of the State of Missouri committed no error in its construction of the Act of Congress under consideration. to liability for A reversal of the judgment brought here for review is also asked upon the ground that the Supreme Court of Missouri erred in sustaining the Circuit Court of Jackson County in giving to the jury what is called "plaintiff's instruc- Instruction as tion No. 1." This instruction is as follows: "The injury to boats. jury are instructed that unless the bridge mentioned in the answer had piers which were parallel with the current of the river, and spans of not less than 160 feet in the clear on each side of the pivot-pier, then said bridge is an illegal structure, and an unlawful obstruction to the navigation of the Missouri River; and if the jury believe from the evidence that it was not such a bridge, and further believe that the plaintiff's boats, 'Alice' and 'St. Luke,' or either of them, while attempting to pass through the draw of the bridge in charge of pilots exercising usual and ordinary care, struck the draw-rest of the bridge, and were thereby damaged, then the jury will find their verdict for the plaintiff as to such boat or boats." It is said that by sustaining this instruction the Supreme Court of Missouri held that the mere fact that the bridge had not been constructed as required by the statute rendered the railroad company liable, irrespective of the question whether the improper construction caused the accident; and it is urged that such holding is erroneous. This, however, does not present any federal question for the consideration of this court, and therefore we decline to examine into its merits. Murdock v. City of Memphis, 20 Wall. 590; Allen v. McVeigh, 107 U. S. 433; 2 Sup. Ct. Rep. 558. Upon the only questions of this case cognizable by this court, the judgment of the Supreme Court of the State of Missouri is affirmed. For opinion of Supreme Court of Missouri which is affirmed by the above case, see Missouri Packet Co. v. Hannibal, etc., R. Co., 20 Am. & Eng. R. R. Cas. 275, note, 285. STATE ex rel. CITY OF MINNEAPOLIS V. ST. PAUL, MINNEAPOLIS, & MANITOBA R. Co. (Minnesota Supreme Court, March 5, 1888.) Construction of Railroads - Bridge over Crossing-Mandamus. — Where, in mandamus proceedings to compel a railway company to restore a street crossing to a suitable condition for the public convenience and safety, the court found that the plan proposed by the relator was suitable, appropriate, and adequate for such purpose, and the return to the Supreme Court on appeal fails to disclose the evidence upon which such finding is based, it will be presumed that the evidence on which the court acted was sufficient to justify its determination. Same Public Convenience. Where the plan includes a bridge over the contiguous tracks of two railway companies, it must necessarily have reference to the rights of each in accomplishing the general purpose of the public accommodation and convenience; and neither can be compelled to surrender its property, or change its route further than is reasonably necessary for such purpose. APPEAL from District Court, Hennepin County. Benton & Roberts, W. E. Smith, and M. D. Grover for appellant. Seagrave Smith, City Attorney, and Fudson N. Cross, for respondent. VANDERBURGH, J.- This is a proceeding by mandamus to require the appellant company to bridge certain streets in the city of Minneapolis. The appellant answered to the writ. A trial was had, and judgment was ordered in favor of the Case stated. relator, substantially in conformity with the plan produced on the trial by the relator, and the company appeals. The record shows that a similar proceeding was instituted against the Minneapolis & St. Louis Company, whose tracks cross the same streets, and adjoin those of the appellant on the south. The purpose of these proceedings is to compel each of these companies to build its share of the required bridges across the railway tracks in question, with the proper approaches, abutments, etc., to the end that the streets may be restored to a suitable condition for travel and the safety of the public, as required by the charters of the companies. The foundation of the proceeding is the omission of its duty by the railroad company to restore a street crossed by its railway to a safe condition for crossing, so as not to interfere with its free and proper use. The relator alleges such omission, and points out the changes and measures which it claims to be requisite to restore the street. It is the duty of the court to determine these questions; and, if the claims of the relator are established, the peremptory writ is to issue for the restoration of the street in conformity with the requirements of the alternative writ, or with such reasonable modifications as may be found expedient by the court, not affecting the substance of the relief. People v. Railroad Co., 58 N. Y. 163. The two cases, it appears, were tried and heard together in the court below, though not formally consolidated, and thereupon the separate judgment formulated in each case, based upon the record before the court, related to and was in conformity with one general plan for bridging the space covered by the tracks of both companies, upon a hearing of all parties interested. The appellant objected to the plan proposed by the city, and in lieu thereof proposed another which it is willing to accept, the details of which are set forth in the answer, and in its proposition map and plans introduced on the trial, and which it insists is the most eligible, both for the city and the railway companies interested. This plan involved a change in the location of the main track of the St. Louis Company, which crosses Washington Avenue, one of the streets in question (and which the latter company is required to bridge, under the plan of the relator), and the removal thereof to a line designated by the appellant "to the northerly side of its land or right of way," contiguous to its own tracks, which are all to be there located beyond its proposed freight depots, which it is proposed to place on the southerly side of all the tracks of both companies. The tracks of both companies were thus to be located as near together as practicable, and the grade lowered so as to admit of a shorter bridge with easy approaches. And it is represented by the appellant, that, to carry out this proposition, it had purchased land adjoining its right of way, and incurred large expense for the purpose of making such change of grade and location. It also alleges that the track in question was laid in pursuance of a contract between the companies, under which the appellant leased to the St. Louis Company, its successors and assigns, forever, the right to build, maintain, and operate a single-track railroad upon the land of the appellant between certain designated points, and including the track in dispute. This contract also contains certain stipulations, set forth in the answer, touching the building, operation, and control of such track, and the mutual rights and obligations of the companies in respect thereto. These allegations the court finds to be true, "except that in an action between the two companies, involving the right of the appellant to remove and change the location of the track in controversy, it was on the ninth day of March, 1886, adjudged that the St. Louis Company is entitled to maintain and operate forever upon the land now occupied by its track [mentioned in paragraph 4 of the answer] a single-track railroad, and respondent [appellant here] was enjoined from removing or obstructing the same." The court further finds that in its judgment "the plan proposed by the appellant here, and more fully disclosed by the offer and map filed at the hearing [and which the relator was willing to accept], would, if accepted and conformed to by the Minneapolis & St. Louis Company, be better than any other for both companies and for the public; but that the St. Louis Company is unwilling to consent to the removal of its track, so as to make this plan feasible." But the court also finds in favor of the relator, in respect to the plan proposed by it, that the allegations contained in the ninth paragraph of the writ are true; to wit, "That the bridges," approaches, plans, and specifications for the same, as shown upon Exhibits A, B, C, and D, "are necessary, reasonable, and practicable; and the same have been devised by the city engineer, and approved and adopted by the city council, and required by said city council to be constructed by said railway company." None of the evidence produced by the relator, and neither of the exhibits referred to in the last finding, are returned to this court; nor does the return show any of the evidence on the part of the appellant except the written offer above mentioned, and the evidence in the former suit between the companies, which culminated in the decision of this court in the case before referred to. It must be assumed, therefore, that the evidence was such as to justify the court in adopting the plan proposed by the city, and that the same was adequate and suitable for the purposes of securing a crossing in conformity with the charter of the company. And this also necessarily disposes of the appellant's third, fourth, and sixth assignments of error, in respect to the number and character of the bridges, and the nature of the approaches ordered. Failure of But the assignment of error chiefly relied on in argument is the first; that is to say, that the court erred in refusing to adopt the plan for a crossing which it found to be the best, viz., that of the appellant, and particularly in determining court to adopt that it had no power to require the adoption of that plan. This is based on the seventh paragraph of the court's findings in this case, above quoted, wherein the failure of that plan is attributed to the refusal of the St. Louis Company to consent thereto; and the statement of the court in its memorandum of the reasons for its decision, filed appellant's plan for crossing. in the St. Louis case, but referred to and adopted by it in this case, from which it appears that the court was of the opinion that it had no power to compel the St. Louis Company to accept the plan offered by the appellant. This is the only finding on the subject in this case. There is nothing in the case going to show that the court placed its decision on the ground that it had no power to require any change in the alignment of the track of the St. Louis Company, or that it might not require such reasonable change therein as might be found necessary to secure a suitable crossing (for the fair inference is to the contrary); but, having found that the plan of the city answers the end and purpose of the proceeding, it determined that it had no power to compel the St. Louis Company to make the specific change demanded by the appellant. This sufficiently appears from the record; and the error complained of is, not that the court held it had no power to make any change at all, but that it had no power to compel the adoption of the appellant's plan. The trial court was in a better position to determine, upon an examination and comparison of all the evidence in the case, the nature, extent, and effect of the proposed change, and its determination must have been. made upon full argument of counsel for both companies. For example, the evidence not being before us, the record here does not show whether the new proposed line for the St. Louis Company is located upon the old right of way of the appellant, or upon the lands lately purchased by it; nor does it show the distance between the old and new line, except that at Washington Avenue it is apparent that it must be more than 120 feet, which is indicated as the space occupied by the proposed freight depots and the intervening roadway. However desirable such a change might be as a matter of convenience and expediency, and we have no reason to question the opinion of the court on this point, we are unable to say upon this record (where it is found that the plan which the city proposes is suitable and sufficient) that the court was wrong in holding that it would be an unauthorized and arbitrary act on its part to require the St. Louis Company to abandon the plan of a bridge over its own original tracks, and accept the plan of the appellant, requiring a new route to reach the bridge of the latter. How far the court may in such cases, by its order or judgment, compel changes in the alignment or grades of a railway, it is not necessary to determine in this case; but we think it is evident that it would not be justified in interfering by mandamus, against the consent of the company, further than is reasonably or necessarily incident to the accomplishment of the main purpose of the proceeding. Where, as in this case, the railways of different companies are contiguous, and each company is required to build a distinct portion |