84 P. 239 | Cal. Ct. App. | 1906
Action for an injunction restraining the board of trustees and superintendent of the streets of the city of Merced from changing the position of certain electric light poles on M street in said city. The city has never owned or controlled public works for supplying artificial light and for ten years prior to the commencement of this action, the appellant corporation had been, and then was, furnishing the city and its inhabitants with electric light, and in so doing had maintained nine electric light poles, at as many different corners on the street mentioned, by permission of the city trustees, and without hindrance from the defendants or their predecessors in office. On June 6, 1904, the board of trustees, by resolution, ordered that said poles be changed to other positions than those previously occupied, and appellant failing to remove the poles as directed and required by the resolution, the superintendent of streets, by another resolution, was ordered to make the change, and proceeded to do so, whereupon this action was commenced. The trial court sustained general demurrers to the complaint, and plaintiff declining to amend, two separate judgments were entered, one in favor of the trustees and the other in favor of the superintendent of streets. The plaintiff thereupon appealed from both of said judgments.
The sole contention of appellant in both appeals involves the power of the city authorities to compel or make the change in question. Under the constitution of this state, the appellant enjoys and is exercising a franchise giving it the privilege, under the direction of the superintendent of streets, or other officers in control thereof, of using the public streets, *722
so far as may be necessary, for introducing and supplying such city with electric lights. (Const., art. XI, sec. 19;Stockton G. E. Co. v. San Joaquin County,
The contention of appellant frankly stated and ably advocated is, that the city authorities are absolutely without power to change the poles from the positions they have occupied for so many years. We cannot concur in this view. The original location of the poles by permission of the city authorities created no absolute, indefeasible right, or irrevocable license, to have each pole remain at the particular spot for all time; and it is well settled that lapse of time creates no prescriptive right to public property. (City of Visalia v.Jacob,
All laws must be so construed as to avoid absurd and incongruous results, and the doctrine which appellant would have us announce would certainly lead to consequences which it is the general object of laws to prevent. All citizens must conform to needful regulations controlling the exercise of personal and property rights, and holders of a franchise constitute no exception to this general rule.
The judgments are affirmed.
Chipman, P. J., and Buckles, J., concurred. *726