Sedgwick, J.
In March, 1907, the mayor and council of the city of Lincoln duly enacted and approved an ordinance decreeing the necessity of a viaduct and approaches thereto “over and across the tracks of certain railway companies in and over P street of the city of Lincoln,” and requiring the defendant company to construct a viaduct over and across its railway tracks at P street. At the general city election of that year the plan was approved and the mayor and council empowered to require its construction. In August of the following year the mayor and council duly passed and approved an ordinance for that purpose. The company having neglected to construct the viaduct, this action was brought in the district court for Lancaster county to obtain a peremptory writ of mandamus to compel it to do so. Upon trial in that court the issues were found in favor of the city, a peremptory writ ordered as prayed, and the defendant company has appealed.
There is no question raised as to the regularity of the preliminary proceedings, but it is contended by the defendant that there is no public street over its right of way at the place in question, and that therefore the city of [265]*265Lincoln is without authority to compel the construction of the viaduct. This question depends upon the construction and meaning of the ordinance known as ordinance No. 218, also known as No. 1641, enacted in July, 1892, entitled: “An ordinance providing for the passage of the railway of the Chicago, Rock Island & Pacific Railway Company across and through the streets and alleys of the city of Lincoln, in the county of Lancaster, and state of Nebraska, and vacating portions of certain streets and alleys in said city for the purpose of giving right of way and other privileges in said city to said railway company.” The seventh section of this ordinance is as follows: “That all of that part of P street in said city lying south of lots 9, 10, 11 and 12, in block 13, Kinney’s O Street, addition to said city, be, and the same is hereby, vacated.” That part of P street described in this section was about 200 feet in length, and at that time the defendant company owned the lots abutting thereon on each side of the street. Under the statute then in force, if a street of the city was vacated, the territory so vacated reverted to the owners of the adjacent lots.
It is contended by the city that the mayor and council were without authority to vacate -the streets of the city, and that the proper construction of the ordinance is that it grants a right of way to the company over the streets of the city, and does not vacate the streets for any other purpose. Upon the first contention it is sufficient to say that the statute then in force expressly authorized the mayor and council “to open, widen, or otherwise improve, vacate, care for, control, name, and rename any street, avenue, alley, or lane, parks, and squares, within the limits of the city.” Comp. St. 1893, ch. 13a, art. I, sec. 67, subd. IV. Some authorities are cited by the relator holding that the city, under such a statute, cannot vacate a public street solely for the purpose of donating it to some individual or corporation, but those authorities are not applicable for two reasons: First, because in those cases the streets when vacated remained the property of the [266]*266city, and, of course, could not be disposed of as a pure gift or donation; second, because in this case the ordinance was somewhat in the nature of a contract, and was enacted for the public benefit to procure the defendant company to construct its line through the city for the convenience of the citizens and traveling public generally, as well as for the accommodation of the company.
The twelfth section of the ordinance provided that the company and its successors and assigns are “given and granted the right and privilege of occupying so much of said streets and alleys, vacated by this ordinance, as said railway company, its successors and assigns, may at any time desire for its railroad, switches, side-tracks, depots and other railroad purposes.” It is contended that this shows that the intention was merely to create a right of way over the streets vacated, and not to vacate the streets named for other purposes. It will be noticed that the title of the act specifies that it is the purpose to grant a right of way through the streets and alleys of the city an'd to vacate portions of said streets and alleys, not only for the purpose of giving a right of way, but also to give “other privileges” in said city. The first section of the ordinance granted a right of way “over, through, along and across (naming 12 streets), together with the right of way upon, along and across all alleys crossed or intersected by said located line.” This section, does not mention the vacating of any streets, and was sufficient for the purpose of granting a right of way, if that was all that was intended. O street was then, as it is now, the main thoroughfare of the city, and section 1 also provided that no more than two tracks, including the main line, should be constructed over O street. The ordinance also provided that the company shall not construct more than three tracks, including the main line, across L, M, N and Monroe avenue, which lie immediately south of P street, and not to exceed four tracks, including its main line, across Q and R streets, which lie immediately north, and there is no limitation of the number of tracks to be placed [267]*267across P street. It was provided that the company shall maintain an arc light of 2,000 candle power on M, N and O, three streets immediately south of P street, and on Q, R and Vine, three streets immediately north, but made no provision for maintaining a light at P street. The ordinance also required the company to pave and keep in repair as a street a strip of ground immediately west of its depot, 25 feet wide, “so as to connect with O street and with P street in said city,” thus enabling the traffic on P street to pass over on O street, as it was prevented from crossing on P street. This provision the company has fully complied with. In due time after the enactment of this ordinance the company took possession of that part of P street that was vacated by the seventh section of the ordinance, and constructed its switch tracks and other improvements thereon, erected its station building immediately adjoining it, and, in fact, extending slightly upon the vacated portion of the street. The evidence shows that some foot-passengers have crossed over this vacated strip, and that teams and conveyances have been known to cross it, but the tracks “have a 44-inch drop on its rail,” and they are not planked or otherwise prepared for crossing. There has been no crossing there by people or conveyances in any different manner than they might cross or drive over the railroad right of way at any and all places. The property has been in the exclusive possession and control of the railway company as much as any property devoted to a public use could be, and this has been continued now for much more than 10 years.
Other sections of the ordinance vacate that part of Twentieth street lying between P and O streets which the company was required to pave, as above stated, and also a small portion of two alleys through which the right of way extended; and it is contended that the provision, that the company should have the right and privilege of occupying these vacated parts, indicates that the intention was to make a qualified vacation for right of way only. The railway company did not own the property abutting [268]
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Sedgwick, J.
In March, 1907, the mayor and council of the city of Lincoln duly enacted and approved an ordinance decreeing the necessity of a viaduct and approaches thereto “over and across the tracks of certain railway companies in and over P street of the city of Lincoln,” and requiring the defendant company to construct a viaduct over and across its railway tracks at P street. At the general city election of that year the plan was approved and the mayor and council empowered to require its construction. In August of the following year the mayor and council duly passed and approved an ordinance for that purpose. The company having neglected to construct the viaduct, this action was brought in the district court for Lancaster county to obtain a peremptory writ of mandamus to compel it to do so. Upon trial in that court the issues were found in favor of the city, a peremptory writ ordered as prayed, and the defendant company has appealed.
There is no question raised as to the regularity of the preliminary proceedings, but it is contended by the defendant that there is no public street over its right of way at the place in question, and that therefore the city of [265]*265Lincoln is without authority to compel the construction of the viaduct. This question depends upon the construction and meaning of the ordinance known as ordinance No. 218, also known as No. 1641, enacted in July, 1892, entitled: “An ordinance providing for the passage of the railway of the Chicago, Rock Island & Pacific Railway Company across and through the streets and alleys of the city of Lincoln, in the county of Lancaster, and state of Nebraska, and vacating portions of certain streets and alleys in said city for the purpose of giving right of way and other privileges in said city to said railway company.” The seventh section of this ordinance is as follows: “That all of that part of P street in said city lying south of lots 9, 10, 11 and 12, in block 13, Kinney’s O Street, addition to said city, be, and the same is hereby, vacated.” That part of P street described in this section was about 200 feet in length, and at that time the defendant company owned the lots abutting thereon on each side of the street. Under the statute then in force, if a street of the city was vacated, the territory so vacated reverted to the owners of the adjacent lots.
It is contended by the city that the mayor and council were without authority to vacate -the streets of the city, and that the proper construction of the ordinance is that it grants a right of way to the company over the streets of the city, and does not vacate the streets for any other purpose. Upon the first contention it is sufficient to say that the statute then in force expressly authorized the mayor and council “to open, widen, or otherwise improve, vacate, care for, control, name, and rename any street, avenue, alley, or lane, parks, and squares, within the limits of the city.” Comp. St. 1893, ch. 13a, art. I, sec. 67, subd. IV. Some authorities are cited by the relator holding that the city, under such a statute, cannot vacate a public street solely for the purpose of donating it to some individual or corporation, but those authorities are not applicable for two reasons: First, because in those cases the streets when vacated remained the property of the [266]*266city, and, of course, could not be disposed of as a pure gift or donation; second, because in this case the ordinance was somewhat in the nature of a contract, and was enacted for the public benefit to procure the defendant company to construct its line through the city for the convenience of the citizens and traveling public generally, as well as for the accommodation of the company.
The twelfth section of the ordinance provided that the company and its successors and assigns are “given and granted the right and privilege of occupying so much of said streets and alleys, vacated by this ordinance, as said railway company, its successors and assigns, may at any time desire for its railroad, switches, side-tracks, depots and other railroad purposes.” It is contended that this shows that the intention was merely to create a right of way over the streets vacated, and not to vacate the streets named for other purposes. It will be noticed that the title of the act specifies that it is the purpose to grant a right of way through the streets and alleys of the city an'd to vacate portions of said streets and alleys, not only for the purpose of giving a right of way, but also to give “other privileges” in said city. The first section of the ordinance granted a right of way “over, through, along and across (naming 12 streets), together with the right of way upon, along and across all alleys crossed or intersected by said located line.” This section, does not mention the vacating of any streets, and was sufficient for the purpose of granting a right of way, if that was all that was intended. O street was then, as it is now, the main thoroughfare of the city, and section 1 also provided that no more than two tracks, including the main line, should be constructed over O street. The ordinance also provided that the company shall not construct more than three tracks, including the main line, across L, M, N and Monroe avenue, which lie immediately south of P street, and not to exceed four tracks, including its main line, across Q and R streets, which lie immediately north, and there is no limitation of the number of tracks to be placed [267]*267across P street. It was provided that the company shall maintain an arc light of 2,000 candle power on M, N and O, three streets immediately south of P street, and on Q, R and Vine, three streets immediately north, but made no provision for maintaining a light at P street. The ordinance also required the company to pave and keep in repair as a street a strip of ground immediately west of its depot, 25 feet wide, “so as to connect with O street and with P street in said city,” thus enabling the traffic on P street to pass over on O street, as it was prevented from crossing on P street. This provision the company has fully complied with. In due time after the enactment of this ordinance the company took possession of that part of P street that was vacated by the seventh section of the ordinance, and constructed its switch tracks and other improvements thereon, erected its station building immediately adjoining it, and, in fact, extending slightly upon the vacated portion of the street. The evidence shows that some foot-passengers have crossed over this vacated strip, and that teams and conveyances have been known to cross it, but the tracks “have a 44-inch drop on its rail,” and they are not planked or otherwise prepared for crossing. There has been no crossing there by people or conveyances in any different manner than they might cross or drive over the railroad right of way at any and all places. The property has been in the exclusive possession and control of the railway company as much as any property devoted to a public use could be, and this has been continued now for much more than 10 years.
Other sections of the ordinance vacate that part of Twentieth street lying between P and O streets which the company was required to pave, as above stated, and also a small portion of two alleys through which the right of way extended; and it is contended that the provision, that the company should have the right and privilege of occupying these vacated parts, indicates that the intention was to make a qualified vacation for right of way only. The railway company did not own the property abutting [268]*268on the vacated portions of these two alleys, and it may have been thought necessary, in order to secure the right of way then as against the owners of the abutting property, to make special provision therefor in the ordinance. Whether the mayor and council had power to prevent the vacated portions of these alleys reverting to the owners of the abutting property is not now material in this inquiry. The company has occupied them under this claim of right for much more than 10 years, and it is too late now to question the right of the company in its depot and switching grounds because of any doubt as to the original right to occupy the vacated alleys as against the owners of the abutting property. Under these conditions, it is impossible to conclude that the vacation of the part of P street in question by the seventh section of the ordinance was •intended merely as a grant of right of way. This vacated portion of P street became the property of the defendant company as the owner of the abutting lots. This ownership and full control of the property has been continually recognized by the city authorities and the company has held and exclusively occupied this territory for much more than 10 years. The power given to the city by the statute to compel the construction of a viaduct requires that it must be over a railway track on or across a “public way,” and must be a “viaduct on or along such street, under or over such track.” Ann. St.. 1911, sec. 8031. As there was no public way or street crossed by the railway tracks at the proposed place, the city was without authority to compel the construction of a viaduct.
We do not at this time determine the right ánd power of the city to now open the street over these station grounds by condemnation proceedings, as that question is not presented by the record.
The judgment of the district court is reversed and the action dismissed.
Reversed and dismissed.
Hamer, J., not sitting