¶1■The appellant, Chicago & Northwestern Raihvay Company, moved for. a rehearing.
¶2In support of .the motion there was a brief by R. N. Van Doren of Milwaukee, attorney for the appellant.
¶3In opposition thereto there was a brief by.Otjen & Otjen and John L. Newman, all of Milwaukee, attorneys for the respondent William P. Kaiser.
¶4The following opinion was field March 9, 1920:
¶5On a motion for rehearing appellant’s attorney urges upon our attention an aspect of the case not heretofore presented dr considered. He earnestly contends that because the authority of the city of Milwaukee ceases at the center of the street, and it neither had power to order the subway constructed on the town of Lake side of the stre'ét, or to destroy the street in a physical sense by constructing a subway on its side of the street and léaving the grade crossing on the town side, its charter powers, referred *51to in the main opinion, coüld not be invoked to bring about the construction of the subway in question.
¶6It may be conceded that the city had no jurisdiction of' the town side of the street and that it could not physically destroy the street by digging a subway in its half thereof. But certain it is that the two municipalities, by agreement, could improve this street by the construction of the subway; that they did so agree, whether the agreement was express, implied, or by mutual acquiescence, is perfectly clear from the record in this case. The municipalities having agreed upon the nature of the improvement, the duty devolved upon each to prosecute such improvement upon its side of the street, and in doing so its power with reference to such improvement was exactly the same as in cases of improvements upon any other street within its boundaries. The city of Milwaukee had the same power to compel the railroad company to construct the subway in its part of the street that it would have to compel it to do so upon any other street in the city. The case does not present a situation where the city is seeking to destroy the street, or of forcing an improvement opposed by the town of Lake. If such were the case, the controversy would be between the' city and the town. It would be doubtful if the railroad company could be heard to complain. In this case the city decided that its portion of Oklahoma avenue should be depressed so as to cross the- right of way of the railroad company under its tracks. Upon such determination it became the duty, of the railroad company to bear the burden of the undertaking just as though it were in a street over which the city had complete jurisdiction. That it was not the duty of the railroad company to construct the subway on the town side of the street does not relieve it of that duty on the city side. •
¶7By the Court. — Motion for rehearing denied.