53 F. 687 | U.S. Circuit Court for the District of Southern Alabama | 1892
Under the facts of this case, the court has arrived at the following conclusions:
2. And the court will extend such protection even to restraining another railroad company from proceeding to condemn, or to subject to its use, property in the possession of its receiver, by proper legal proceedings, and will more readily do so when such condemnation or use is sought or attempted to be had without any legal proceedings being taken for that purpose.
3. The acts done, or threatened and proposed to be done, to the right of way and roadbed and franchises connected with the Mobile Street Railway Company, and now possessed and exercised by the receiver, and the use proposed to be made thereof by the Mobile Electric Railway Company, will, in my opinion, materially impair the just enjoyment of the same by the said receiver.
4. One public corporation cannot take the franchises of another public corporation, in actual use by it, unless expressly authorized to do so by the legislature, and then only by proper legal proceedings of condemnation; and such taking must not materially diminish or impair the usefulness of a franchise in exercise.
5. A franchise to use land for a right of way is, in its very nature, exclusive, so that the privileges and powers granted in respect to its use may be fully exercised; and dispossession of any portion of property subject to the use of a franchise in actual use is tantamount, in its legal effect, to the taking of the franchise pro tanto.
6. The grant to the Mobile Street Railway Company, in its own nature, amounts to an extinguishment of the right of the grantors, and implies a contract not to reassert that right;and said railway, company should be protected from impairment of its privileges and franchises under such grant by any attempt to appropriate or interfere with the same for the use of the Mobile Electric Railway Company; and if the use proposed to be made by the Mobile Electric Railway Company of the roadbed or track of the Mobile Street Railway Company obstructs, hinders, or embarrasses the use and usefulness of that part of the first acquired right which is in actual use by the receiver, it would be an illegal use, and should be prohibited.
7. The erection of poles and electric wires on Dauphin street by the Mobile Electric Railway Company, as proposed by it, will not interfere with the possession and operation of the railroad and its franchises on that street, as now exercised by the receiver. He does not intend to put the electric system in operation on said railroad, or to erect poles and wires for that purpose, under the privilege granted to the Mobile Street Railway Company to do so. He has. no authority to do it, and, so far as I am advised, does not contemplate any action in the premises.
8. Any right that a purchaser of the Mobile Street Railway, its property, privileges, and franchises, may have to adopt the electric system for the Dauphin Street Railroad, and to erect poles and wires on said street for that purpose, cannot* in my opinion, be considered in this proceeding, or be adjudicated in the cause in which this pro
9. My conclusion is that an injunction should he granted, restraining the Mobile Electric Kailway Company, its officers, servants, and agents, from entering with their track upon, or in any manner interfering with, the right of way and roadbed of the Dauphin Street Kailroad, as now possessed, used, and operated by the receiver; and it will be so ordered.
