Cereghino v. Oregon Short Line Railroad

73 P. 634 | Utah | 1903

McCARTY, J.,

after stating the facts delivered the opinion of the court.

There are two questions involved, which are decisive of this case. The first is, has a city council delegated power to grant a franchise which will burden the streets of a mur>;"''i;4v with a switch track to be operated by a steam railway exclusively for the convenience and private use of a private corporation, to the detriment of the citizens residing on such street, and damage to their property abutting thereon? And the second is, can a private citizen, whose property abuts upon the street where the switch is proposed to be constructed, and which property would be specially damaged thereby invoke the equity power of a court to restrain and prevent the threatened injury?

The public streets of a city are dedicated to and held in trust for the use of the public, and, while there . are many kinds of tempdrary uses of a private 1 character that may be and are daily made of portions of them, it is well settled by the great weight of authority that a city council has no power to grant a franchise or a permit to an individual or corporation authorizing such person or corporation to make a permanent use of a public street for exclusively private purposes, to the detriment of the public and damage to private property abutting upon such street. Wood v. Hears, 12 Ind. 515, 74 Am. Dec. 222; 2 Dillon, Mun. Cor., 660; Callahan v. Gilman (N. Y.), 14 N. E. 264, 1 Am. St. Rep. 840. The record shows that, while the railroad company applied to and obtained a permit from the city council to build the proposed switch, it did so at the request of the defendant Consolidated Wagon & Machine Company, and that the switch is intended for the sole and exclusive use, benefit, and convenience of the last-mentioned company. The petition on which the permit was granted recites in part as follows: ‘ ‘ Said track so proposed to be constructed to be for the accommodation of the business transacted at said warehouse. ” The switch is not only intended exclusively for private purposes, but its construction and operation in connection with that of the main line and the three other switches now being operated in the vicinity of plaintiff’s premises would be an unreasonable, and, we might add, an unlawful, use of the street, as it would, in effect, be almost entirely appropriated in aid of a strictly private enterprise, thereby diverting it from the uses for which it is held in trust, to the detriment of the public, and irreparable damage to plaintiff’s property abutting thereon, which property, as shown by the record, would be greatly impaired, if not entirely ruined, for residence purposes. The public at large have an interest in the construction and successful operation of railroads designed for the transportation of passengers and freight, and because of this interest the 'defendant railroad company, in common with all others, is given the right to invoke the law of eminent domain, and subject private property to its necessary public uses; but it has no right, either under the law of eminent domain or a pretended franchise from a municipality, to directly or indirectly take private property for the purpose of building, a line of railway or a switch track designed and intended to be used exclusively for the convenience and accommodation of a private business. And as stated by counsel for the appellant in their brief, “Neither can it subject tbe streets and sidewalks of a municipality, dedicated to public uses of tbe people, to additional servitudes or burdens in aid of private undertakings and enterprises. ’ ’ Mr. Elliott, in bis work on Eoads and Streets, sec. 744 (2 Ed.), thus tersely, and, as we tbink, correctly, states tbe rule: “A municipal corporation cannot grant a right to construct a railroad in a street for private use. We suppose it to be indispensable to the validity of a direct legislative grant that in every instance tbe use should be public, for highways are held in trust for tbe public, for public purposes, and no other. This rule is clearly tbe legitimate sequence of tbe fundamental principles that private property can never be seized under tbe power of eminent domain for merely private purposes/ and that roads and streets are held for tbe public use, and never for permanent private purposes.” Hibbard, Spencer, Bartlett & Co. v. City of Chicago, 173 Ill. 98, 50 N. E. 256, 40 L. R. A. 621; Commonwealth v. Frankfort, 92 Ky. 149, 17 S. W. 287; Townsend v. Epstein (Md.), 49 Atl. 629, 52 L. R. A. 413, 86 Am. St. Rep. 441; Van Witsen v. Gutman, 79 Md. 405, 29 Atl. 608, 24 L. R. A. 403; Pittsburg, etc., R. Co. v. Iron Works, 31 W. Va. 710, 8 S. E. 453, 2 L. R. A. 680; St. Louis, I. M. & S. Ry. Co. v. Petty (Ark.), 21 S. W. 885, 20 L. R. A. 434.

It appears from tbe record that tbe permit to con-etruct tbe switch track in question was granted at tbe same session of tbe city council that tbe petition therefor was presented. The resolution granting tbe 2 permit is as follows: “No. 717. Oregon Short Line R. R. Co. Permission to construct a track on Third West Street and west to tbe warehouse of tbe Consolidated Wagon and Machine Company, between Seventh and Eighth South streets. On motion of Councilman Eardley tbe petition was granted. ’ ’ It will thus be observed that the city council, by resolution, has, in effect, granted tbe defendant railroad company a permanent franchise to construct and operate a steam railway on one of tbe public streets of the city, without any eondi-tions imposed as to the grade of the track or the manner of construction, and without any regulations as to its maintenance and the operation of the trains and cars to be moved over it. This is not only an unreasonable-exercise of discretion on the part of the city council, but is in violation of the provisions of section 206, Revised Statutes 1898, as amended by Sess. Laws, 1901, p. 133, c. 124, and section 207, Revised Statutes 1898, which provide that the power of á city council to grant franchises to railroad companies to maintain and operate railroad tracks in any of the public streets of a city can only be exercised by ordinance duly passed, or resolution or by-law enacted in the same way. The power thus granted being legislative in character, it follows that an ordinance, resolution, or by-law by which it is exercised must be passed in accordance with the formalities required by law. The reason and necessity for this legislative requirement are very apparent. It gives people residing on or owning property in the locality of the proposed railway an opportunity to be heard in the matter, and to furnish information to the council, and, if their interests or that of the public demand it, make objection, and enter such protest as the circumstances and conditions may warrant. An opportunity for the people interested to be heard in matters of this kind is a right that must be maintained and kept inviolate. West Jersey Traction Co. v. Shivers (N. J. Sup.), 33 Atl. 55; Indianapolis v. Miller, 27 Ind. 394.

It is argued by counsel for respondents that “the injury to plaintiff is no greater nor in any way different whether the grant from the city is valid or invalid, ” and that the municipality alone can successfully 3 make objection on this ground, and therefore plaintiff’s only remedy is by an action at law for damages. There is a marked distinction between a railroad track about to be laid on a public street in pursuance of a franchise lawfully granted and one about to be constructed without lawful authority and in such a way as to become a public and private nuisance. In the one case the private citizen has no remedy save In an action at law for damages, hut in the other, if he can show! special damages, a court of equity will enjoin the threatened injury. 2 Dillon, Mun. Cor. (4 Ed.), 708; 1 Lewis, Eminent Domain (2 Ed.), sec. 117b; Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 Pac. 286; Ogden City Ry. Co. v. Ogden City, 7 Utah 207, 26 Pac. 288; Dooly Block v. Rapid Transit Co., 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; 23 Am. and Eng. Ency. Law (1 Ed.), 958, 959; Penn. R. Co.’s Appeal (Pa.), 5 Atl. 876; Blanc v. Klumpke, 29 Cal. 160; Hargro v. Hodgdon, 89 Cal. 628, 26 Pac. 1106. Not only does the weight of judicial authority support this doctrine, but in this State we have a statute which gives the right of injunctive relief in cases such as the one under consideration. Section 3506, Eevised Statutes 1898, provides that: “Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance ; and by the judgment the nuisance may be enjoined or abated, as well as damages recovered.” Practically the same questions here presented were raised and decided in the case of Dooly Block v. Eapid Transit Company, supra. In that case the Eapid Transit Company obtained a franchise to construct a track for a street railway on one of the public streets of Salt Lake City, upon which there already existed a double track owned and operated by another company, which tracks furnished ample facilities for all cars necessary for public convenience. The plaintiffs in that case commenced an action in equity to enjoin the Eapid Transit Company from laying the track, alleging that an additonal track upon that particular street, as contemplated, would materially depreciate' the value of their property abutting thereon. The trial court found the issues in favor of the plaintiffs, and entered judgment perpetually restraining the defendant Rapid Transit Company from laying its track. On appeal, this court, after a very thorough and exhaustive discussion of the questions therein involved, affirmed the judgment of the trial court, holding that an additional track would he an unreasonable obstruction to and interference with the ordinary use of the street, and “that the act of the city council of Salt Lake City [granting the franchise] was unlawful, as being an unreasonable exercise of discretion. ’ ’ If the doctrine announced and conclusions reached in that case are sound and correct —and we think they are — it necessarily follows that appellant must prevail herein, as the facts in the case now before us show a much more unwarrantable and indefensible invasion of public and private rig'hts than was there attempted.

That part of the sixth finding of fact which reads “that the construction of said switch track is within the charter powers of the said railroad company,” and the seventh, eighth, and ninth findings of fact, and the third conclusion of law are erroneous, as the same are not supported by evidence and the facts.

The case is reversed, with directions to the trial court to set aside the judgment rendered and enter judgment for appellant, perpetually enjoining respondent railroad company from constructing the switch track in question. Costs to be taxed against the respondent.

BASKIN, C. J., and BARTCH, J., concur.