104 S.E. 462 | N.C. | 1920
We gather the following facts from a voluminous case agreed: The defendant and its predecessors operated under a license granted by the city of Raleigh, double-track street car line up Hillsboro Street to the city limits at St. Mary's Street. Defendant operated the same line beyond St. Mary's Street on what was called Hillsboro Road, and on the north side thereof, for some distance beyond the city limits by virtue of authority granted by the board of county commissioners of Wake County to operate said road, they directing that the tracks shall be built on the north side of the said road. Defendant and its predecessors also secured permits from the property owners on the north side of said road which was given to defendant for a valuable consideration. *235
On 1 July, 1907, the western limits of the city of Raleigh were extended westwardly one-half mile to the intersection of Park Avenue and Hillsboro Street, and track in the defendant's road that far.
The city of Raleigh decided to improve and pave Hillsboro Street, and ordered the Carolina Power Light Company, at its own expense, within the territory added to the city of Raleigh, on Hillsboro Street:
(a) To remove its car tracks from the north side of said street to the center of said street.
(b) To pave between the tracks and one foot on each side of the tracks.
(c) To pave the space between its double tracks in addition to the space of one foot on each side of the track.
The defendant denied the right of the city to compel it to do this work, and, under an agreement between plaintiff and defendant, plaintiff did the work and the liability of the defendant to pay for same was to be determined by the courts.
The franchise originally granted by the city contained the following clause: "Provided, however, that if the said city decides to put in or change its sewerage pipes on any of the streets of said city on which the track of said company may be laid, the said city may require the said company to remove and replace at its own expense the said track for said purposes. The space between the tracks shall be kept level with the rail, and shall be kept clean and in good order; and whenever the city shall pave or macadamize any street occupied by the tracks of said company it shall be the duty of said company, at its own expense, to pave or macadamize the space between the tracks and one foot on each side of the track with like material and in like manner as the city shall pave or macadamize said streets."
We think it is beyond controversy that the obligations and duties incumbent upon the defendant in respect to the streets embraced within the limits of the city before the extension of the corporate limits in 1907, attached at once to the defendant in respect to the streets embraced within the added territory.
In Dillon on Municipal Corporation (5 ed.), sec. 1304, it is said: "A grant of authority to use the streets of a municipality for the purpose of conducting water or gas, without express limitation, is not to be deemed restricted to existing streets and highways, but is to be construed as extending to streets and highways as subsequently enlarged, changed, or opened."
In People v. Deehan,
We think it equally clear that the plaintiff had the right to require the defendant to remove its tracks from the north side of Hillsboro Street to the center of the same. This is expressly provided in the franchise granted to the Raleigh Electric Company, the predecessor of the defendant, which contains the following provision: "The said tracks of the Raleigh Electric Company shall be located wherever practicable in the center of all of said streets, avenues, lanes, cartways, thoroughfares, and public highways."
In addition to the requirement contained in the franchise, the plaintiff, under the exercise of its police power, had the right to compel the defendant to remove its tracks to the center of the street. Dillon on Municipal Corporation, vol. 3 (5 ed.), sec. 1271. There it is said: "Pipes, conduits, rails, and structures erected or constructed in the city streets under a general grant of authority to use the streets therefor are subjectto the paramount power and duty of the city to repair, alter, and improve the streets, as the city, in its discretion, may deem proper, and to construct therein sewers and other improvements for the public benefit. This paramount power and duty of the city is clearly governmental in its nature, and, in many cases at least, forms a part of the police powers of the municipality. The decisions hold that the grantee of the franchise has no cause of action for any damage which it may sustain by acts of the city in reasonably performing its duty in these respects." See, also, Gas LightCo. v. New Orleans,
It is manifestly true that in this day of multitudinous motor vehicles and other conveyances, the safety of the citizen requires that street car tracks shall be in the center of the street. This is a universal custom, we believe, in nearly all cities and towns where street cars are operated. We are also of opinion that the plaintiff had the right to compel the defendant to pave between the tracks and the one foot on each side, and also to pave the space between its double tracks. This comes within the letter as well as the spirit of the franchise which contains the following provision: "The space between the tracks shall be kept level with the rail, and shall be kept clean and in good order; and whenever the city shall pave or macadamize any street occupied by the tracks of said company, it shall be the duty of said company, at its own expense, to pave or macadamize the space between the tracks and one foot on each side of the tracks with like material and in like manner as the city shall pave or macadamize said streets."
For the safe and convenient use of the public street it is as much *237 necessary to pave the space between the double track as it is to pave the space between each individual track. This authority is not only given the plaintiff, we think, under the franchise, but it is a proper exercise of the police power.
In Atlantic Coast Line v. The City of Goldsboro,
This case was affirmed by the Supreme Court of the United States, R. R.v. Goldsboro,
The question was fully considered in the case of New Bern v. Atlantic N.C. R. R. Co.,
We do not think it necessary to discuss this matter further. The overwhelming weight of authority seems to place the liability of the defendant beyond doubt.
Affirmed. *238