#### CITY OF RALEIGH v. CAROLINA POWER AND LIGHT COMPANY.

(Filed 27 October, 1920.)

1. Railroads — Street Railways — Charters—Municipal Corporations — Cities and Towns — Enlarged Limits — Governmental Powers — Streets and Sidewalks.

The provisions of a charter granted by a municipality to a street railway company that it pave along and between its rails and turnouts, etc., in the same manner and materials, etc., as the municipality should use when improving its streets where the tracks run, applies to improvements of streets in added territory by an extension of the city limits, not alone under the conditions imposed by the charter, but also under the general exercise of the governmental powers of the municipality.

2. Same — Moving Track.

Under a provision of a franchise given for a street railway by a municipal corporation that its tracks shall be located, wherever practicable, in the center of the street, and also under the general police or governmental powers generally exercised by the municipality, a city or incorporated town may lawfully require the railway company to remove a track it is operating on the side of a street near the sidewalk, to the center of the street.

CONTROVERSY without action, beard and determined by Daniels, J., at June Term, 1920, of Wake.

Tbe proceeding is brought to recover $13,312.69, with interest from 15 October, 1914, money paid out by tbe plaintiff for removing car track, paving between tracks, etc., for defendant. It was agreed tbat tbis work should be done by tbe plaintiff, and if it should be decided tbat tbe defendant was liable therefor, then tbe plaintiff should recover tbe same. His Honor rendered judgment against tbe defendant, which appealed to the Supreme Court.

J. 8. Manning and' J. W. Hinsdale, Jr., for plaintiff.

J. H. Pou, W. L. Currie and Walter L. Watson for defendant.

BrowN, J.

We gather the following facts from a voluminous case agreed: The defendant and its predecessors operated under a license granted by the city of Raleigh, double-track street car line up Hillsboro' Street to the city limits at St. Mary’s Street. Defendant operated the same line beyond St. Mary’s Street on what was called Hillsboro Road, and on the north side thereof, for some distance beyond the city limits by virtue of authority granted by the board of county commissioners of Wake County to operate said road, they directing that the tracks shall be built on the north side of the said road. Defendant and its predecessors also secured permits from the property owners on the north side of said road which was given to defendant for a valuable consideration.

*235Oh 1 July, 1907, tbe western limits of tbe city of Ealeigb were-extended westwardly one-balf mile to tbe intersection of Park Avenue- and Hillsboro Street, and track in tbe defendant’s road tbat far.

Tbe -city of Ealeigb decided to improve and pave Hillsboro Street, and ordered tbe Carolina Power & Light Company, at its own expense, witbin tbe territory added to tbe city of Ealeigb, on Hillsboro Street:

(a)' To remove its car tracks from tbe north side of said street to the-center of said street.

(b) To pave between tbe tracks and one foot on each side of the-tracks.

(c) To pave tbe space between its double tracks in addition to the-space of one foot on each side of tbe track.

Tbe defendant denied tbe right of tbe city to compel it to do this-work, and, under an agreement between plaintiff and defendant, plaintiff did tbe work and tbe liability of tbe defendant to pay for same was to be determined by tbe courts.

Tbe franchise originally granted by tbe city contained tbe following-clause: "Provided, however, tbat if tbe said city decides to put in or change its sewerage pipes on any of tbe streets of said city on which tbe track of said company may be laid, tbe said city may require tbe said company to remove and replace at its own expense tbe said track for said purposes. Tbe space between tbe tracks shall be kept level with tbe rail, and shall be' kept clean and in good order; and whenever tbe city shall pave or macadamize any street occupied by tbe tracks of said company it shall be tbe duty of said company, at its own expense, to pave or macadamize the space between tbe tracks and one foot on each side of tbe track with like material and in like manner as tbe city shall pave or macadamize said streets.”

We think it is beyond controversy tbat tbe obligations and duties-incumbent upon tbe defendant in respect to tbe streets embraced within tbe limits of tbe city before tbe extension of tbe corporate limits in 1907, attached at once to tbe defendant in respect to tbe streets embraced -witbin tbe added territory.

In Dillon on Municipal Corporation (5 ed.), sec. 1304, it is said:-' “A grant of authority to use tbe streets of a municipality for tbe purpose of conducting water or gas, without express limitation, is not to-be deemed restricted to existing streets'and highways, but is to be construed as extending to streets and highways as subsequently enlarged,, changed, or opened.”

In People v. Deehan, 153 N. Y., 528, it was held: “If tbe company is authorized to use tbe streets of a municipality, tbe authority conferred extends to and includes streets in territory subsequently added to the-*236city by annexation.” Rogers Water Co. v. Fergus, 178 Ill., 571; McQuillian on Municipal Corporation, vol. 4, sec. 1674; Gas Light Co. v. St. Louis, 46 Mo., 121; People v. Deehan, 153 N. Y., 528.

We think it equally clear that the plaintiff had the right to require the defendant to remove its tracks from the north side of Hillsboro Street to the center of the same. This is expressly provided in the franchise granted to the Raleigh Electric Company, the predecessor of the defendant, which contains the following provision: “The said tracks of the Raleigh Electric Company shall be located wherever practicable in the center of all of said streets, avenues, lanes, cartways, thoroughfares, and public highways.”

In addition to the requirement contained in the franchise, the plaintiff, under the exercise of its police power, had the right to compel the defendant to remove its tracks to the center of the street. Dillon on Municipal Corporation, vol. 3 (5 ed.), sec. 1271. There it is said: “Pipes, conduits, rails, and structures erected or constructed in the city streets under a general grant of authority to use the streets therefor are ■subject to the paramount power and duty of the city to .repair, alter, and improve the streets, as the city, in its discretion, may deem proper, and to construct therein sewers and other improvements for the public benefit. This paramount power and duty of the city is clearly governmental in its nature, and, in many cases at least, forms a part of the police powers of the municipality. The decisions hold that the grantee •of the franchise lias no cause of action for any damage which it may sustain by acts of the city in reasonably performing its duty in these respects.” See, also, Gas Light Co. v. New Orleans, 197 U. S., 453; People v. Geneva W. S. F. Co., 186 N. Y., 516.

It is manifestly true that in this day of multitudinous motor vehicles and other conveyances, the safety of the citizen requires that street.car tracks shall be in the center of the street. This is a universal custom, we believe, in nearly all cities and towns where street cars are operated. We are also of opinion that the plaintiff had the right to compel the defendant to pave between the tracks and the one foot on each side, and also to pave the space between its double tracks. This comes within the letter as well as the spirit of the franchise which contains the following provision: “The space between the tracks shall be kept level with the rail, and shall be kept clean and in good order; and whenever the city shall pave or macadamize any street occupied by the tracks of said company, it shall be the duty of said company, at its own expense, to pave or macadamize the space between the tracks and one foot on each side of the tracks with like material and in like manner as the city shall pave or macadamize said streets.”

For the safe and convenient use of the public street it is as much *237necessary to pave tbe space between tbe double track as it is to pave the-space between each individual track. 'This authority is not only given tbe plaintiff, we tbink, under tb'e franchise, but it is a proper exercise of tbe police power.

In Atlantic Coast Line v. The City of Goldsboro, 155 N. C., 358, it is held that: “An ordinance of tbe town requiring tbe plaintiff to lower its tracks to a level with tbe street at tbe expense of tbe railroad company was a lawful exercise by tbe town of its police power.” In the-same case it is said: “A railroad company accepts a charter from tbe State in contemplation of and subject to tbe development of tbe country, and with tbe expectation that cities and towns would require new or improved streets across .rights of way acquired, and, therefore, by prior occupancy a railroad company can obtain no rights which would impede or render dangerous streets of incorporated towns to whom tbe power bad been granted, in tbe exercise of their police power for tbe benefit of tbe citizens.”

Tbis case was affirmed by tbe Supreme Court of tbe United States,. R. R. v. Goldsboro, 232 U. S., 548.

Tbe question was fully considered in tbe case of New Bern v. Atlantic & N. C. R. R. Co., 159 N. C., 542. In that case tbe railroad company bad a right of way through tbe streets of tbe city óf New Bern at the-time tbe street was a dirt street. Owing to tbe increased size of tbe city and travel on tbe street, tbe local authorities deemed it necessary that tbe street should be paved with permanent material to-insure tbe public a reasonable use of it. It was held that it was tbe duty of tbe railroad company to meet tbe present requirement of paving for tbe use of tbe city. In that case it is said: “When tbe express consideration'for a franchise given by a city to a railroad company for tbe latter to have a right of way for its railroad through a street is that tbe railroad shall keep and preserve tbe street in good order for tbe use of the citizens of tbe town, tbe railroad, by operating under its franchise, impliedly promises to perform tbe same obligations in respect to keeping up tbis street as tbe municipality should owe to its citizens, contemplating tbe growth of tbe city and such improvements as would be suitable- and proper in tbe future.”

We do not tbink it necessary to discuss tbis matter further. Tbe overwhelming weight of authority seems to place tbe liability of the-defendant beyond doubt.

Affirmed.