32 Cal. 472 | Cal. | 1867
The complaint alleges that the defendant owns and operates a horse railroad, consisting of a double track, in and upon. Third street, between Howard and Folsom streets, in the City of San Francisco, and the purpose of. the action is to recover of the defendant five hundred and twenty dollars for “ repaving the space between the rails of defendant’s said railroad, to wit: the space of two thousand feet.” It appears that on Third street the defendant’s road has a single track for a part of the way and a double track for the residue; that the double track is but a continuation of the single track, running out of it and into it. The space for the repaving of which the suit is brought is the space between the double tracks, and it is stipulated that the only question involved is as to the obligation of the defendent to keep this space between the two single tracks—constituting the double track—in repair.
The question turns upon the construction to be given to the
One of the three descriptions given in the Act of 1866 of the space which the companies are to keep in repair, is negative in its character—that is to say, the space is not “ any portion of the street outside of the track of such road,” which is the same as saying that it is that portion of the street which
As the question is clear upon the statutes having to do with it, we do not find it necessary to advert to the considerations of justice or convenience that may bear, or which maybe supposed to bear upon it, nor to the learned, nor the popular meaning of the words whose meaning we have considered.
Judgment reversed and new trial ordered.
Heither Mr. Justice Rhodes nor Mr. Justice Sanderson expressed any opinion.