#### Commissioners of Highways v. Fenton & Thompson Railroad Company.

Gen. No. 4,799.

Mandamus—when petition in, to compel railroad to restore land, sufficient. A petition in mandamus is sufficient to compel a railroad company to restore a highway to its former condition which charged the obstruction under the terms of the statute.

Mandamus. Appeal from the Circuit Court of Whiteside county; the Hon. Emery C. Graves, Judge, presiding.

Heard in this court at the April term, 1907.

Reversed and remanded.

Opinion filed August 6, 1907.

J. J. Ludens and E. M. Blodgett, for appellants.

A. A. Woleebspebgeb, for appellees.

Mr. Presiding Justice Willis

delivered the opinion of the court.

This is an appeal from the Circuit Court of White-*395side county to review the action of that court in sustaining a demurrer to a petition for a writ of mandamus by the commissioners of highways of the township of Us tick, Whiteside county, and against the Fenton & Thompson Railway Company and the Chicago, Burlington So Quincy Railway Company, to compel them to restore to its former' condition a certain public highway in the said township of Ustick. The petition alleges that in 1904, the Fenton & Thompson Railway Company was constructed across the highway therein described at nearly right angles and about thirty feet above the highway, and that earth embankments, piles and trestle work of the railway occupied all but twelve and one-half feet of the highway. Under the fifth clause of sec. 20 of the Railroad Act, chap. 114, Hurd’s R. S. 1905, railroad companies have the right to cross a highway, but are required to restore it to its former state or to such state as not necessarily to impair its usefulness. The only objection urged to the petition is that it does not specify with particularity the manner in which the railway companies obstruct and unnecessarily impair . the usefulness of the highway. Whether this highway should be made wider or restored to its'full width, as argued by counsel, is a question that can only be determined upon a hearing. The petition having charged the obstruction in the terms of the statute and containing averments in regard to* the Chicago, Burlington & Quincy Railway Company leasing and controlling the railway formerly built by the Fenton So Thompson Railway Company, and this being admitted by the demurrer, the petition states a good cause of action.

The judgment of the Circuit Court is therefore reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded.