34 F. 579 | U.S. Cir. Ct. | 1888
The foundation of the plaintiff’s case is an ordinance of the city of Pine Bluff, passed on the 4th day of February, 1885, and adopted as a.contract on the 24th day of March, 1885. The provision of the contract on which the case turns reads as follows:
“That for the purpose of providing for a single-track street raihvay or street railways, the said party of the first part [the city of Pine Bluff] does hereby grant unto the said, party of the second part [John O’Connell, Frank Silverman, and Sam Fies] and their assigns, for the term of ninety years from the date of this contract, the right of way on, over, and along the following streets, to-wit: All of Barraque street, all of Broadway street, all of Fugate street, all of Newton street, their present and future limits, and all other streets within the present and future corporate limits of the city of Pine Bluff, as the parties of the second part think public necessities require, with the exclusive privilege of using said streets and said designated portions thereof for the purpose of constructing, operating, maintaining, and owning such street railway thereon.”
The contract required the construction, within three years from its date, of a raihvay over the following streets: On Fugate from Broadway to Barraque, thence on Barraque to Newton, thence on Newton to Broadway, and thence on Broadway to Fugate; but by a later ordinance this requirement was so modified that the company was only required to build, within three years, a railway on Barraque street for a distance of 10 blocks, and the company is under no obligation to construct any more railroad in the city during the life of the contract — 90 years. The plaintiff is assignee of the contract. On the 9th day of August, 1886, the city entered into a contract with the defendant, Wiley Jones, whereby he was authorized to build and operate a street railway on certain named streets in the city, on which the plaintiff has not constructed, and does not propose to construct, such a railway. The object of this suit is to enjoin the defendant from constructing or operating a street railway on the streets of the city included in his contract, upon the ground that the plaintiff under its contract has an exclusive right to the use of all the streets of the city for street railway purposes, and that this exclusive right is not restricted to the streets on which it has constructed its railway, but extends as well over all the streets of the city upon which it has not constructed, and does not propose to contract, such railway.
The power granted to the mayor and' council to contract on this subject, is, as the act in terms declares, “for the purpose of providing * * * street railroads,” and it is for that purpose they are authorized to grant “for the time which may be agreed upon the exclusive privilege of using the streets and alleys of such city for such purpose. * * *” Section 755, Mansf. Dig. It is the actual use of the street for the purpose that confers the exclusive privilege. The city council has not the power to agree that if the contractor will build a street railway on one street in the city he shall be under no obligation to build on any other street for 90 years, and that for that period the city shall not itself build
Let an order be entered sustaining the demurrer and dismissing the bill for want of equity.