City of Clinton v. Clinton & Lyons House Railway Co.

| Iowa | Dec 15, 1873

Day, J.

way act. The position of appellant is that the sole authority of defendant to construct its railway was derived from the ordinance of the city of Clinton authorizing defendant, subject to certain conditions, to construct a horse railway upon Second street, in said city, and that upon the repeal of that ordinance the said railway existed without authority, became a nuisance, and was subject to abatement as such ; whilst upon the part of appellee it is claimed that the general right of way statute (Revision, chap. 55, art. 3) applies to defendant and confers upon it, full authority to construct its railway over the streets of said city, independently of any action of the city authorities.

"We are not called upon to determine in this case whether the provisions of this statute apply to a street railway constructed wholly within a town or city, for it appears from the allegations of the petition that the railway in question runs between and connects two cities, the petition alleging that defendant is “ engaged in operating a horse railway through, between and in the cities of Clinton and Lyons.”

This being the case we know of no rule of construction which will justify us in holding that the railway in question is not entitled to the benefits of the provisions of said statute. Clearly its language is broad enough to include the defendant.

The language is “ any railroad corporation heretofore organized, or that may hereafter be organized, under the laws of this State,” etc. The mere fact that cars upon defendant’s line of road are propelled by animal instead of steam power cannot be regarded as a controlling circumstance, for it is a well-known fact that upon some street railways steam is used as a motive power, whilst upon some railroads animal power is employed.

In the City of Chicago v. Evans, 24 Ill. 52" court="Ill." date_filed="1860-04-15" href="https://app.midpage.ai/document/city-of-chicago-v-evans-6949883?utm_source=webapp" opinion_id="6949883">24 Ill. 52, language was employed which seems directly applicable to this question. The court said: “ The record presents the question whether under the act of February, 1853, horse railways in this State may unite their railroads and make running arrangements with each other. That act in terms applies to all railroads organized under the laws of this State. This language is manifestly sufficiently comprehensive to embrace horse railways as well as railroads whose cars are propelled by steam or other power. The language of the enactment embraced all roads then organized, as well as those which might afterward become so, and the act makes no distinction or reservation as to the character of the railroad. The members of the general assembly were fully aware that these various railroads existed, and if any roads answering either description were not designed to be embraced, they would, it appears to us, have limited the operation of the act so as to exclude them. Horse city railroads unquestionably fall within the description of the class of subjects on which they were legislating. They are in every sense of the term railroads. They are incorporated under the laws of the State, and are embraced within the language of the statute and, we have no doubt, within its spirit.” If this language had been employed respecting our right of way statute it could not have been made more applicable to it. It is contended that this act could not have had reference to horse or city railways, becaifse none existed in the State at the time of its enactment. But the same is true of all other railroads.

Wre are of opinion both upon principle and authority that our general right of way statute embraces within its terms and its spirit the railway now under consideration.

II. It follows as a corollary from the foregoing determination and the adjudications of this court, that the railway under consideration cannot be abated as a nuisance.

The repeal of the ordinance authorizing the construction 01 this railway upon Second street in the city of Clinton leaves the defendant in no worse position than if the ordinance had never been enacted. Section 1321 of the Revision is as follows : “ Any railroad corporation may raise or lower any turnpike, plank-road, or other way, for the purpose of having their railroad pass over or under the same; and in such cases said corporation shall put such turnpike, plank-road, or other way, as soon as may be, in as good repair and condition as before such alteration. In the case of the C. N. & S. W. R. Co. v. The Mayor of Newton, 36 Iowa 299" court="Iowa" date_filed="1873-04-10" href="https://app.midpage.ai/document/chicago-newton--southwestern-railroad-v-mayor-of-newton-7095577?utm_source=webapp" opinion_id="7095577">36 Iowa 299, it was held as a result of the prior adjudications that a railroad company has a right, under the provisions of section 1321, subject to proper equitable control and police regulations, to pass over a street in a city without the consent of the city authorities. If such right exists it is apparent that the repeal of the ordinance in question did not render defendant's railway a nuisance.

III. It does not follow from the foregoing views that railways in the streets of cities are independent of all control or supervision.

regulation and control. The right to construct them exists, subject to proper equitable control and police regulations. The ordinance of the city of Clinton, imposing conditions as to place and mode of construction and manner of oper- . i i . . ation, and the acceptance of its conditions by defendant, may be regarded as a conventional provision respecting the proper equitable control and police regulations of the city. If this ordinance still existed we would find no difficulty in recognizing its validity, and in requiring the defendant to comply with its provisions.

But plaintiff has by its own solemn act annulled this ordinance. It now occupies the position of a party to a contract who having repudiated his agreement, and deliberately asserted his intention no longer to be bound thereby, asks a court of equity to enforce it specifically against the opposite party. That no relief would be afforded under such circumstances we need not stop to discuss. The plaintiff, therefore, under the facts set forth in the petition, is not entitled to any relief, and the demurrer to the petition was properly sustained.

Affirmed.