9 Utah 31 | Utah | 1893
The respondents are the owners of certain lots situate in Salt Lake City, and abutting on Second South street, between Main and Second West streets. Two of these lots,, one on the north, the other on the south, side of Second
The trial court, in substance, found the above allegations of the plaintiffs and defendant to be true, and, among other things, found as facts that the ‘plaintiffs are the owners of equitable easements in fee of rights of access, ingress and egress to their respective lots in front thereof in the street, and entitled to the free and unobstructed use of that portion of said street as a means of access, such easements extending along the street from the first north and south street east of said lots to the first north aud south street west of such lots, the same being subject to the ordinary use of the street by the public; that the fee of the street is in Salt Lake City, in trust for street uses proper; that prior to the granting of said franchise by the city there were constructed and in operation on that street a double-track street railroad, telegraph and telephone lines, wires and poles for electric lighting, and the street had already become greatly obstructed, and access to plaintiffs’ property impeded and embarrassed; that because
This leads to the inquiry as to whether or not the construction and operation of the third track upon that street by the defendant involves the taking of property of the plaintiffs, and as to whether the city council of Salt Lake City exceeded its limits of discretion and authority in granting the franchise to defendant. The plaintiffs contend that they are the owners in fee of the lots above mentioned abutting on Second South street, and, as such abutting owners, they are entitled to so much of the bed of the street as lies immediately in front of the lots and to the center of the street, on which the proposed third ■ track is be built, subject only to the ordinary use of the same for the purposes of public travel, and that they are entitled to the use .of said street, free from unreasonable obstructions, as a means of access, light, and air to their premises. The defendant maintains that the fee of said street is vested in the corporation of Salt Lake City, and-that plaintiffs have no property therein, but are only entitled to the use thereof in common with the people of the city. The plaintiffs admit that the fee is in the city, in trust, however, for street uses proper, and subject to the equitable easements in fee of abutters. The lots and street in question are a part of a larger track entered under section 2387, (Bev. St. U. S.), which provided that
It follows that, when land is platted by the owner of the soil, and lots sold, bounded by a street designated and marked on the plat, the grantee acquires a right to the .street in front of the' premises as a means of access. 1 Hare, Const. Law, 376; Lewis, Em. Dom. § 114; Story v. Railway Co., 90 N. Y. 122; Wyman v. Mayor, etc., 11 Wend. 487; Child v. Chappell, 9 N. Y. 246; Schulte v. Transportation Co., 50 Cal. 592; City of Denver v. Bayer. 7 Colo. 113, 2 Pac. Rep. 6. Nor does it matter, in this case, -that the fee is in the city in trust for the use of the pub-
Counsel for appellant contend that, subject to special constitutional restrictions, the legislature has plenary power over all public ways and streets. If this position be tenable, then, in the absence of special constitutional restrictions, the legislature may authorize municipalities to devote the entire width of a street to railroad uses, regardless of the property rights of abutting owners, without compensation for injury to their property. This theory does not .appear to be sustained by the authorities. The legislature may delegate power over streets to municipalities, but in doing so it must recognize the property rights of private individuals. • Judge Dillon, in his work on Municipal Corporations, (volume 2, § 656a,) speaking of the nature of streets and legislative control, says: “Public streets, squares, and commons, unless there be some special restriction when the same are dedicated or acquired, are for the public use, and' the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control, and regulation of them to the local authorities. The' legislature of the state represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property
That case was decided in January, 1873, and such, it must be conceded, was the weight of authority at that time. Then the cases turned upon the question whether the fee was in the public or in the abutter, in many of them without close inquiry as to the exact, limitation of the fee; and it was almost universally held that, if the fee was in the abutter, the legislature could not authorize a •private corporation to construct a railroad on a public
In this case the learned court found that the fee of Second South street is in Salt Lake City, in trust for street uses proper; and of this appellant does not comjilain. Therefore, under the law as applied to this class of cases,, plaintiffs have property rights in the street in front of their lots, and the street.is not subject to the absolute control of the legislature, nor can the legislature confer such control upon the city council. While the legislature
According to the evidence, as appears from the record in this case, Second South street is one of the principal business streets running east and west, and, at the date of the granting of the franchise to the defendant and of the trial of the cause, there were in operation upon that street two railroad tracks, which were located in the center of the street, with a line of poles between them. There were also many electric light, telegraph, and telephone poles placed in line on each side of the street about four feet from the sidewalk, and on these poles were stretched numerous electric wires. The two tracks in operation were constructed with T rails, which project several inches above the surface of the street, and render the crossing of the tracks with vehicles difficult and dangerous, the street not being paved. The appellant proposed to construct its track in a similar way on the north side of the present tracks, and to erect additional poles, which would still further obstruct the ordinary travel, and render the respondents'’ property less accessible for business purposes. The tracks already upon said street afford ample facilities to run all the cars necessary for public convenience; and the construction of the third track would be a serious impediment to the ordinary mode of travel, as. it would not leave sufficient space between the outside rails and the gutter for vehicles to pass each other with safety. Where the track privileges o.f one company on a city street are sufficient for the business of two or more companies, they
Counsel for appellant insist that the several findings of fact to the effect that the construction of the third track would be an unreasonable obstruction, of the street, and that the granting of the franchise for that purpose by the city council was unlawful, and an unreasonable exercise of discretion, are not justified by the evidence. There appears to be some conflict in the evidence on this point, but, the learned. judge having heard the evidence and having had the opportunity to observe the manner and bearing of the witnesses while testifying, this court will not disturb the conclusions reached, especially since the record shows them to be fair and logical deductions from the testimony. "Where a case is tried in a court sitting as a court of chancery, the findings of fact are conclusive in the appellate court, unless they are so manifestly erroneous as to demonstrate some oversight or mistake. Wells v. Wells, 7 Utah, 68; Ullman v. McCormic, 12 Colo. 553, 21 Pac. Rep. 716; Doe v. Vallejo, 29 Cal. 386; Coryell v. Cain, 16 Cal. 567; Coolidge v. Smith, 129 Mass. 554. The record reveals no material error committed during the conduct of the- trial, and we are of the opinion that the • act of the city council of Salt Lake City granting the franchise to