156 F. 455 | 9th Cir. | 1907
This is a suit in equity to obtain a decree enjoining 'the defendant from constructing a street railroad upon a portion of San Fernando street, in the city of San Jose. The Circuit Court granted an injunction pendente lite; and from this order the defendant appeals. The plaintiff was at the date of the commencement of the action operating a single track narrow-gage electric street railroad within the city of San Jose, under a franchise granted in the year 1891, and expiring in the year 1936. The track of plaintiff’s road is in the center of the street, and the distance between the rails is three feet. Defendant on March 6, 1905, obtained from the municipal authorities of the city of San Jose a franchise to construct and operate a single track broad-gage electric railroad along certain streets of that city, including two blocks of San Fernando street, occupied by plaintiff’s road. The bill of complaint alleges that, by the terms of the franchise under which defendant proposes to construct and operate its railroad, the tracks of such railroad are “required to be as nearly as possible in the middle of the street, and the defendant is now proceeding to lay and construct the same in accordance therewith; the distance between defendant’s rails being four (4) feet, eight and one-half (8½) inches; the same being parallel with your orator’s rails; each of the defendant’s rails being outside of or further from the center of the street than each of your orator’s rails.” The bill then alleges that the operation by defendant of its cars will interfere with and prevent in a great measure, the operation by plaintiff of its railroad and cars, and will deprive it of the rights and privileges to which it is entitled by its franchise.
There is only one question presented by this appeal, and that relates to the validity of defendant’s franchise; plaintiff contending, in support of the order appealed from, that under section 499 of the Civil Code of California the city of San Jose was without authority to grant the right to construct and maintain a broad-gage railroad along that portion of San Fernando street already occupied by the plaintiff’s narrow-gage railroad under its prior franchise, and that by reason of this want of power in the city the franchise under which defendant seeks to construct its road is void. The section of the Civil Code referred to is as follows:
*457 “'See. 499. Two lines of street railway, operated under, different managements, may be permitted to use the same street, each paying an equal portion for the construction of tbe tracks and appurtenances used by said railways jointly; but in no case must two. linos of street railway, operated under different managements, occupy and use tbe same street or tracks for a distance of more than five blocks consecutively.”
The allegations of the bill of complaint show that defendant by its franchise is given the right to lay the rails of its road parallel with those of plaintiff’s road, and, by reason of the greater width of defendant’s road, it will when constructed occupy the same portion of the street now occupied by plaintiff’s road and an additional space of 10.25 inches on each side of it.
The contention of the plaintiff is that under the section of the Civil Code of California, just quoted, the municipal authorities of a city or town cannot grant to two lines of street railway, operated under different managements, the right to use any portion of the same street, except upon condition that both of them use the same track and rails, and where, as in the case here, the road operating under the prior franchise is of narrow-gage construction, the city is without authority to permit a broad-gage railroad to be constructed along any portion of the same street, because the cars of the two roads could not be operated upon the same rails, and Omnibus R. R. Co. v. Baldwin, 57 Cal. 160, is cited as a controlling- authority in support of plaintiff’s position. The principal opinion in that case was delivered by Mr. Justice Sharps!eiii, and, speaking of section 499 of the Civil Code of California, which, so far as relates to the present question, was substantially tbe same then as above quoted, he said:
‘■The first clause of tbis section clearly means that a right to use the same street cannot be granted to more than two corporations in any case, and, if granted to two, it must bo upon tbe condition that both use tbe same track, and that each pay an equal portion of the cost of constructing it.”
This language certainly supports the contention of plaintiff, but it was not concurred in by a majority of the court. The court was then composed of seven members, and all of them participated in the decision of that case, and it appears from the case as reported that only two judges concurred in the view thus expressed by Mr. Justice Sharp-stein, and another, while concurring specially in the judgment upon, a particular ground stated by him, added:
“I do not, however, concur in full in tbe construction, placed by my associates upon section 409 of the Civil Code.”
The remaining three judges dissented from the judgment, without expressing any opinion whatever as to the proper construction of the section referred to.
It is well settled that the construction of a statute of the state by its highest court will be followed by the federal courts. Olcott v. Supervisors Fond du Lac County, 16 Wall. 678, 689, 21 L. Ed. 382; Fairfield v. County of Gallatin, 100 U. S. 47, 25 L. Ed. 544; Louisville etc., Railway Co. v. Mississippi, 133 U. S. 587, 591, 10 Sup. Ct. 348, 33 L. Ed. 784; McElvaine v. Brush, 142 U. S. 155, 160, 12 Sup. Ct 156, 35 L. Ed. 971. But we do not think, in view of the fact that the opinion of Mr. Justice Sharpsteiu, above quoted, was not concur
“(1) To construct their tracks on those portions of streets designated in the ordinance granting the right, which must be, as nearly as possible, in the middle thereof.
“(2) To plank, pave, or macadamize the entire length of the street, used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings.
“(3) That the tracks must not be more than five feet wide within the rails, and must have a space between them sufficient to allow the cars to pass each other freely.”
It will thus be seen that when the right to lay rails in a street is given to two roads, both narrow or both standard broad gage, they must from necessity occupy precisely the same part of the street, and consequently use the same track and rails, and in that case each must pay an equal portion of the cost of constructing the tracks and appurtenances used by them jointly, as provided in section 499. So, also, when one is a narrow and the other broad gage, both must from necessity make a joint use of the portion of the street occupied by the road having the narrower width, and, by the terms of the same section, the cost of constructing that portion of the roadbed occupied by both must be borne by each jointly, but the clause requiring each of the roads to pay “an equal portion for the construction of the tracks and appurtenances used by said railways jointly” was not intended to deprive the municipal authorities of the power to grant to two railways having tracks of different width the right to operate their cars upon the same street. This provision of the statute does not concern the public, but defines the rights and obligations of the railroad companies, in the matter of which it speaks.
The order is reversed.