199 P. 1108 | Cal. Ct. App. | 1921
The plaintiff and respondent herein is a telegraph corporation operating under the provisions of an act of Congress enacted on July 24, 1866 [14 Stats. 221; 9 Fed. Stats. Ann., 2d ed., pp. 505-518; U.S. Comp. Stats., secs. 10072-10077], commonly known as the "Post Roads Act" and is a public utility within the meaning and effect of the Public Utilities Act of the state of California; and as such it had established, maintained, *190 and operated, as a part of its interstate and foreign telegraph system, wires inclosed in conduits along and beneath the surface of Market Street, in the city of San Francisco, prior to and since the years 1916 and 1917, the means of access to such conduits being certain "manholes" extending thereto from the surface of said street. At some time prior to the year 1916 the said city and county of San Francisco, the defendant and appellant herein, had constructed and was engaged in maintaining and operating a municipal street railway system upon and along certain of its streets, including a portion of Market Street east of its junction with Geary Street, and in the latter year concluded to extend its said municipal street railway system out Market Street from its said junction with Geary Street to Van Ness Avenue, and accordingly notified the plaintiff herein that it was about to construct such extension, and that in so doing its tracks were to be so located that the means of access to the plaintiff's conduits through said manholes would be destroyed, and it therefore demanded that the plaintiff proceed to move its said manholes so that the same would not interfere with the construction of the defendant's street railway tracks along the line of said proposed extension. The plaintiff at first refused to move said manholes unless the defendant would pay the cost of such removal, but the defendant refused to do this, at the same time threatening to proceed with the construction of its tracks with the resultant destruction of the plaintiff's said property. In order to prevent this result the plaintiff, under protest, removed and rearranged its manholes and approaches to its said conduits at a cost of $1,288.72, and thereafter brought this action for the recovery of said sum. Judgment was rendered in its favor therefor, and from such judgment this appeal has been taken.
[1] It may be stated at the outset that it is conceded by the appellant that the city and county of San Francisco, while engaged in the operation of its municipal street railway system, is acting in a proprietary and not in a governmental capacity. It has, in fact, been so decided in the case of Vale
v. Boyle,
We are unable to follow this refinement on the part of the appellant in its attempted application to the facts of the instant case. The municipality had for some considerable time prior to the date when this controversy arose been actually engaged in the operation of its municipal railway system along Market Street to its junction with Geary Street and thence out Geary Street to and along Van Ness Avenue. It proposed the further extension of its said system out Market Street to its junction with Van Ness Avenue, and was actually threatening to proceed with such extension with the imminent consequence of the destruction of the plaintiff's manholes when, in order to avoid such destruction, the plaintiff, under protest, removed and replaced the same at the cost for which this judgment was obtained. To our minds the action of the municipality thus taken and threatened was strictly within the exercise of its proprietary and not its governmental functions. We are unable to distinguish this case from the case of Los Angeles Gas Electric Co. v. Los Angeles,
We fail to appreciate the force of this distinction.[2] The plaintiff's acceptance and use of the portion of said street wherein its conduits and manholes were placed was something more than a mere privilege, revocable by the municipality at will. The plaintiff in its occupancy of these portions of said street was acting under the authority of the act of Congress commonly known as the Post Roads Act, which entitled it to use the streets of cities for its wires and conduits, which were a necessary part of its interstate and foreign telegraph system and service. It was also entitled to such use under the provisions of section
The case of In re Board of Rapid Transit Commrs. of the Cityof New York,
We can discover no real distinction in principle between the above case and the case at bar. It is not contended that the plaintiff's conduits and established manholes and approaches thereto in any way interfered with or obstructed the ordinary uses of said street for the purposes of public travel, or that the city, in the exercise of its police power, had any such cause to order their removal or change in form or place.[3] It was only when the municipality entered upon the proprietary enterprise of constructing, operating, and extending a municipal railway system that the properties of the plaintiff, in place under its several franchises entitling it to the use of said street, were so threatened with destruction as to render their removal and replacement imperative. Under such conditions we think the municipality was bound to pay the reasonable cost to plaintiff of the compulsory removal and replacement of its said properties, *194 and that the judgment of the trial court awarding such compensation was correct, and should therefore be affirmed. It is so ordered.
Kerrigan, J., and Waste, P. J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 11, 1921.
All the Justices concurred, except Angellotti, C. J., and Wilbur, J., who were absent.