45 Cal. 365 | Cal. | 1873
This is an appeal from an order refusing to grant an injunction. An order to show cause was made, and upon the hearing the injunction was denied. The motion was submitted upon the complaint and answer, from which the following facts appear:
By an Act of the Legislature, approved on the 3d day of March, 1866 (Stats. 1865-6, p. 164), the plaintiff, a coiporar tion, was granted for the term of thirty years the right to construct and lay down a railway track within the corporate limits of the City of Oakland, and in Alameda County, and to run horse cars thereon, commencing at the southerly end of Broadway, in said city; thence through said street to the northern limits oh,the city; thence along the telegraph road to the crossing of Temescal Creek; thence to the grounds of the College of California.
By the terms of the grant it was provided that from the southerly end of Broadway to the crossing of Fourteenth street there should be two tracks—one laid each side of the center of the street, and as near to the center as they could be placed and allow the cars to pass and repass with safety— and from thence along Telegraph Eoad a single' track, continuous with that along the west side of Broadway. It was further provided that work should be commenced within six months, and one track be laid within the limits of the City of Oakland within eighteen months, and the whole
Work was not commenced within six months, nor was one track laid within the limits of the City of Oakland within eighteen months after the passage of the Act, but in Feb-. ruary, 1868, the Legislature passed an amendatory Act (Stats. 1867-8, p. 31), whereby it extended the time for the commencement of the work to three years, and for the completion of one track to three years and six months from the passage of the original Act, but it left unchanged the time for the completion of the whole road.
Work was commenced and a single track completed within the time named for that purpose in the amendatory Act, along the west side of Broadway to the crossing of Fourteenth street, and thence along the Telegraph road to the crossing of Temescal Creek; but at the end of five years after the passage of the Act" of 1866, nothing had been done towards laying down a track On the east side of Broadway, or towards extending the road from Temescal Creek to the grounds of the College of California.
In March, 1870, an Act was passed by the Legislature (Stats. 1869-70, p. 481), authorizing the City Council of any incorporated city to grant to any person or corporation the right to lay down and maintain for a term of years an iron railway track or tracks upon any street or avenue of the city, and to run cars thereon propelled by horses, and to carry passengers and freight thereon. Under this Act the Council of the City of Oakland, granted to Edward Tompkins and Thomas J. Murphy, their associates and assigns, by an ordinance passed on the 22d of May, 1871, the right to lay down and maintain for the term of twenty-five years an iron railroad track upon Broadway, from the southerly end thereof to the northerly charter line of the city, and to run
On the ninth day of the same month the plaintiff commenced to lay down a railroad track along the east side of Broadway, from Twelfth street south, and on the twelfth of the month had laid the track as far south as Tenth street. On that day the defendant commenced at Tenth street to lay down its railroad track, south, along the east side of the street, and on the line where the plaintiff proposed to lay its track, and was proceeding with its work when this action was commenced.
Bo question arises in this case in reference to the plaintiff’s right to maintain and use the railroad track constructed by it within five years after the date of its grant. But no track having been constructed, and no steps taken towards constructing one along the east .side of Broadway within the time limited by the Act, the question is presented as to what rights the plaintiff' acquired on that side of the street, and what, if any, it still retains.
It is now claimed for the plaintiff that the condition annexed to its grant was a condition subsequent; that a present right to use the street for the purpose of the construction and maintenance of its proposed railroad became vested in it, and that it could exercise that right at any time, until a
The defendant, on the other hand, contends that the condition annexed to the grant was a condition precedent; that the plaintiff took nothing until it entered upon the performance of the work, and that when the time limited elapsed, it had no rights whatever in the street, except in so far as it had constructed its road.
Conceding that the plaintiff’s grant was upon condition subsequent, still it does not follow that its rights in that part of the street where it had not constructed a road could be determined only by a judgment of forfeiture.
The grant was of a franchise, which had the legal character of an estate or property. “An estate,” said Chancellor Kent, “ in such a franchise and an estate in land rest upon the same principle, being equally grants of a right or privilege for an adequate consideration.” (3 Kent’s Com. 458.)
Mow, while a forfeiture at common law does not operate to divest the title of the owner until by a proper judgment in a suit instituted for that purpose the rights of the State have been established, it is otherwise when the forfeiture is declared by a statute. In the latter case the title to the thing forfeited immediately vests in the State upon the commission of the offense or the happening of the event for which the forfeiture is declared, or at such other time and upon such other condition as the statute may name. The authorities to this effect are numerous and uniform.
“It has been proved,” said Marshall, C. J., “that in all forfeitures accruing at common law nothing vests in the Government until some legal step shall be taken for the assertion of its right, after which, for many purposes, the doctrine of relation carries back the title to the commission of the offense; but the distinction taken by the counsel for the United States between forfeitures at common law and those accruing under a statute is certainly a sound one. When a
“The forfeiture takes place on the commission of the act prohibited, and by the forfeiture the property is immediately divested out of the owner before any seizure or suit.” (Kennedy v. Strong, 14 Johns. 129.)
In some of the cases the question has been directly presented whether, after the forfeiture has taken place, but in the absence of any judgment declaring the forfeiture, the former owner could maintain any action in reference to the forfeited property, and it was held that he could not. Thus in Wilkins v. Despard, 5 Term B. 112, the action was trespass against the Governor of an English Colony for seizing a vessel and cargo, the property of the plaintiff. The defendant pleaded that before the seizure the vessel and cargo had violated the navigation Act, and had thereby become forfeited to the Government. The plaintiff replied that without any sentence of condemnation by a Court having competent jurisdiction in that behalf, the defendant had sold and disposed of the vessel and cargo, and converted the same to his own use. To the replication there was a demurrer, which was sustained by the Court of King’s Bench, on the ground that by the forfeiture, which the demurrer admitted, the title of the plaintiff was divested, and he could not therefore maintain the action, although the defendant had not proceeded to a condemnation.
In Fountain v. Phoenix Insurance Company, 11 Johns. 293, the action was upon a policy of insurance effected upon the plaintiff’s vessel from Kew York to St. Bartholomew, and at and from thence back to Kew York, with liberty to touch and trade at Martinique. On her outward-voyage the vessel stopped at Martinique, discharged her cargo and was taking
In Bennett v. The American Art Union, 5 Sandf. 614, the plaintiff, a subscriber to the defendant association, alleged in his complaint that the defendant was engaged in the distribution of works of art to its subscribers by means of a lottery or game of chance; and that unless the defendant were restrained from making the distribution the personal property of the association would be forfeited and wholly lost to its members or subscribers. The Court, dissolving a temporary injunction which had been granted, on the ground that upon the face of his complaint the plaintiff had no title to relief, said: “The entire property, if the annual distribution is a noxious lottery, before the complaint was filed was, in my judgment, vested in the State. It was so vested by force of the forfeiture which the statute declares of all property that shall be offered for sale or distribution contrary to its provisions—a forfeiture which by the express words of the law may attach as well before as after the determination of the chance upon which the determination depends.” And again: “ If the intended distribution, which I am asked to enjoin, is in any criminal sense a lottery, it is the property of the people of the State that this Court is required to take into its possession and dispose of for the benefit of the shareholders in the Art Union. It is not probable that we shall soon venture upon such an exercise of our jurisdiction.”
In New York, Housatonic, and Northern Railroad Company v. The Boston, Hartford, and Erie Railroad Company, 36 Ct.
In Borland v. Lewis, 43 Cal. 569, the action was ejectment to recover a parcel of swamp and overflowed land. The plaintiff had purchased the land of the State on a credit of five years, under an Act authorizing such credit, upon payment of one year’s interest in advance, and the interest thereafter annually in advance. Among other things, the Act provides that “if any person or persons purchasing lands upon a credit of five years, as provided in section five of this Act, shall fail or neglect to pay the principal and interest within the said term of five years from the date of the certificate of purchase, or shall fail or neglect to pay the interest, as required by this Act, for the space of one year from the time such interest may become due, or shall fail or neglect to reclaim at least one half of the land so purchased within the said term of five years, such neglect or failure shall work a forfeiture of such land, and the same shall be
In this case it is clear that the Legislature intended, by the restriction as to the time within which the plaintiff’s work must be completed, that it should have no rights in the streets of Oakland if it failed to exercise them within five years.. This intention was expressed in the most explicit terms, for, as we have seen, it declared that upon failure to comply with the provisions of the Act, “ then the franchise and privileges herein granted shall utterly cease and be forfeited.” Rot to give effect to this declaration would be to frustrate and defeat the legislative will.
It is also claimed for the plaintiff that the Act of March, 1870, did not authorize the City Council to make any grant to Tompkins and Murphy of the right to lay down a railroad track on Broadway, since that street was already partially occupied by the plaintiff. The proviso to section one of the Act, when taken in connection with the preceding portion of the'section, may not be altogether clear in its meaning; but we think the true construction of it is that when one railroad has been constructed in a street, and another company desires to use it jointly with its owners, it may be authorized to do so, upon the terms specified, for two blocks, but that it was not intended to be a limitation upon the power already given to grant an independent right.
The last point made is, if the Council had authority to make the grant to Tompkins and Murphy, that they, having
It follows that the Court did not err in refusing the injunction, and its order is affirmed.