People ex rel. Lawton v. Clark

The affidavits on behalf of the village' allege that rio part of the land lying iii the line of the street, at its intersection with the rail*215road track, was conveyed to it by the deed. On ap application for a peremptory writ of mandamus this allegation must be taken as true. If such be the case, then the village, by its acceptance of the deed from the relator and his co-owners, did not assume any obligation to carry the. street across the railroad track.

Even if such obligation were assumed, as it would proceed from contract and not from law, we doubt very much whether its performance could be enforced by mandamus.

Further, the municipality has the power at any time to change the grade of the streets lying within its limits. If we should compel it to elevate the grade of this street there is no reason why, immediately on the completion of the work, it might not lower the grade again to the present elevation. We think the grade of the street is a matter resting within the discretion of the municipal authorities, and the courts cannot by mandamus compel them to exercise that discretion in any particular direction.

. The order appealed from should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and. disbursements.