219 F. 573 | E.D.N.C. | 1914
The cause was submitted upon the bill, answer, and statement of facts agreed upon by the parties. Plaintiff is a Virginia corporation and successor to the property, rights, and franchises of the Raleigh & Gaston Railroad Company, chartered by the General Assembly of North Carolina at its session of. 1835 (Daws 1835-36, c. 25). The city of Raleigh was the southern terminus of said railroad. Pursuant to the provisions of the charter, the said company constructed a track from Gaston, N. C., to Raleigh, N. C., and constructed terminals and depots, in said city, for the receipt and delivery of freight and passengers, including a freight depot and a warehouse on Halifax street between Lane and North streets, extending from Halifax street to Salisbury street, extending its tracks from the main line of the Raleigh & Gaston Railroad across Salisbury street into said depot and warehouse. During the year 1881, a cotton compress was constructed on a lot in the city of Raleigh, bounded by Salisbury, Jones, Halifax, and Lane streets, and for the purpose of delivering to, and receiving cotton from, said warehouse, and to serve the patrons of the said railroad company, and to furnish the public facilities for the delivery of cotton in car load lots, and to better perform its functions as a common carrier, the Raleigh & Gaston Railroad Company made application to the board of aldermen of Raleigh for the grant of the right, privilege, or franchise to occupy the sidewalk on the east side of Salisbury street, between Jones and Lane streets, for the purpose of constructing a track thereon. Said board of aldermen on August 5, 1881, adopted the following resolution or ordinance:
“Upon application of John O. Winder, general superintendent, the Raleigh & Gaston Railroad Company was granted permission to occupy the sidewalk on the east side of Salisbury street, between Jones and Lane streets, for the purpose of running a track.”
When the track was constructed, pursuant to the permission granted by said ordinance, it was used as a public track in connection with the cotton compress in the cotton season, and was used for the purpose of loading and unloading freight for the public, without additional compensation to the railroad for its use, and for any other purpose for which the railroad company desired to use it. Since the year 1906, the cotton compress has not been used. Since that date the said track has been used exclusively for loading and unloading freight and storing empty cars engaged in inter and intra state traffic. It has been and is now used by the merchants of the city of Raleigh and by the public and, on account of its location, is convenient for the said purpose. The right to maintain said track, as it is now placed and
The track has been maintained and operated by the Raleigh & Gas-ton Railroad Company and the plaintiff, its successor, since 1881, with the knowledge and permission of the officers and representatives of the city of Raleigh. The plaintiff is the sole owner and occupant of the block of land in said city bounded on the west by Salisbury street, on the north by Lane street, on the east by Halifax street, and on the south by Jones street, and is the sole owner and occupant of the block in said city next adjacent to said block and to the north thereof, bounded on the west by Salisbury street, on the north by North street, on the east by Halifax street, and on the south by Lane street. The two blocks are used by the plaintiff for the purpose of conducting its business exclusively. Salisbury street is 43 feet wide between curbs at that point at which the track is located on the ■ sidewalk, and, in addition thereto, there is located a sidewalk on the west side of the street 13 feet wide. The portion of the sidewalk on the east side of the street occupied by plaintiff’s track is 10 feet wide. The street and the sidewalk on the west side thereof are available to and are used by the public. In constructing a new freight station two years ago, it was necessary for the Seaboard Air Line -Railway Company to make an excavation at the corner of Jones and Salisbury streets of about 8 feet, extending northwards along Salisbury street. The tracks constructed in connection with said freight station are in this ■excavation, and the freight station is between these tracks and Halifax street. They cannot be used as team tracks, and the other team tracks of plaintiff are on Lane street, which is one block north of Jones street, a distance of 420 feet. The said track on Salisbury street extends from Jones street to Lane street. The southern end of the track on Salisbury street is one block north of the State Capitol, a distance of 420 feet. With the track as it is now laid and used, there is no sidewalk on the east side of Salisbury street, between Jones and Lane streets, for use by pedestrians. Within the two years last past plaintiff has built on the site upon which the compress stood, and immediately to the east of said track, a commodious freight warehouse, with an approach to the same by wagons from the east on the side of the building opposite said side track, with two tracks between said depot and the east line of the sidewalk in question, and, in addition thereto, has constructed several team tracks to the north of said warehouse.
At their meeting on June 10, 1913, the defendants commissioners of the city of Raleigh, after hearing the matter, and against the protest of plaintiff, adopted a resolution ordering the removal of the track constructed and maintained by plaintiff on the sidewalk on the east side of Salisbury street, between Jones and Lane streets, being the track described in the resolution or ordinance of August 5, 1881. By said resolution the commissioner of public works of the city of Raleigh was directed, if plaintiff failed to do so, to remove said track. Certain private laws are set out or referred to in the bill and are to be considered as in evidence. A preliminary injunction was issued And the cause heard upon the prayer for a permanent injunction rer
“Tbe grant by ordinance to an incorporated telephone company, its successors and assigns, of the right to occupy the streets and alleys of a city with its poles and wires, for the necessary conduct of a public telephone business, is a grant of a property right in. perpetuity, unless limited in duration by the grant itself or as a consequence of some limitation imposed by the general law of the state, or by the corporate powers of the city making the grant.”
The power to grant a reasonable use of the streets of Raleigh to a public utility corporation is sustained in Moore v. Power Co., 163 N. C. 300, 79 S. E. 596. The title to the soil in the streets of the city is in the state, but the power to subject them to the use of the municipality and its inhabitants is in its governing board, supra. It is a well-settled rule of construction, applied to grants of public property, which has been applied to grants of the use of streets, that:
“Where special street privileges and franchises are granted, which interfere with the authority of the municipality to control its streets and with the free use thereof by the public, the grant must be construed strictly in favor of the public and against the grantee.” 27 Am. & Eng. Enc. 154.
The soundness, if not necessity, for this salutary rule is manifest. The resolution or ordinance does not usé appropriate or usual words found in grants, as distinguished from a license. In the Cumberland Telephone Co. Case, supra, the right to erect and maintain poles and wires is “granted.” So in Pikes Peak Power Co. v. Colorado Springs, 105 Fed. 1, 44 C. C. A. 333, the right to use the streets for the purpose of stringing wires was “granted” to the company. In construing the language of the ordinance of 1881, for the purpose of ascertaining the intention of' the parties, the purpose for which the permission to occupy the sidewalk was given should be kept in view. A cotton-compress had recently been erected on the Raleigh & Gaston Railroad Company. It is proper to take notice of the fact that, in moving bales of cotton, either to or from the compress, the distance and physical conditions are of essential importance in regard to cost and convenience in operating the compress. Again, as is well known, the compress would ordinarily be operated only a portion — not exceeding one-third — of the year. The cost of laying a spur or side track for the distance required on the sidewalk was, as compared with its value, small. It is doubtful whether the considerations which induced the commissioners to give to .the Raleigh & Gaston Railroad Company permission to occupy, by laying its track over, the sidewalk, for the purpose of enabling it to successfully operate the compress, would have been sufficient to move them to make a grant of a franchise to do so, for all purposes, in perpetuity. Certainly the terms used, so appropriate to confer a temporary, revocable
‘•Wherever privileges are granted to a corporation, and the grant comes under revision in the courts, such privileges are to be strictly construed against the corporation and in favor of the public, and that nothing paseos but what is granted in clear and explicit terms.”
The language of the court in Water Co. v. Knoxville, 200 U. S. 22, 26 Sup. Ct. 224, 50 L. Ed. 353, strongly states the principle and expressly applies it to city ordinances affecting the rights of the public in streets. Mr. Justice Harlan, after citing many cases, says:
“It is true that the cases to which we have referred involved, in the main, the construction of legisiative enactments. But the principles they announce apply with full force to ordinances and contracts by municipal corporations in respect to matters that concern the public. The authorities are all agreed that a municipal corporation, when exerting its functions for the general good, is not to be shorn of its powers by mere implication. If by contract or otherwise it may, in particular circumstances, restrict the exercise of its public powers, the intention to do so must, be manifested by words so clear as not to admit of two different or inconsistent meanings.”
It will he observed that in Owensboro v. Cumberland Telephone Co., supra, relied upon by plaintiff, the language of the ordinance, under which the corporation claimed the franchise, is free from ambiguity. The telephone company was “granted the right to erect and maintain its poles in the streets.” It is also provided that “nothing in the ordinances should be construed as an exclusive right to sai(l company to erect poles, etc.,” and, by section 4 of the ordinance, certain duties and obligations are assumed by the corporation, constituting a valuable consideration, inuring to the benefit of the citizens of the city, for the grant of the franchise, thus giving to the ordinance a contractual character, within the power of the commissioner to make. It will be also noted that Judge Lurton, in sustaining the ordinance, says:
“Nor did it undertake to grant an exclusive right. Express power to grant an exclusive street franchise has generally been held essential.”
He says that, as the grant was not exclusive, the court was not called upon to deal with that question.
If it he conceded that by the ordinance of August 5, 1881, the commissioners undertook to grant to the Raleigh & Gaston Railroad Company, and its successors, the exclusive right, in perpetuity, to occupy and maintain a track, for all such purposes as it or they deemed proper in the prosecution of their business as common carriers, over the sidewalk on the eastern side of Salisbury street, the question is presented whether they were vested by the charter of the city, which constituted the grant of legislative authority in that respect, with
“In the absence of an express power In the charter of a city to grant a permanent easément in a street, a license granted to a railroad company to-lay tracks and operate trains in a street cannot be construed as a grant of a permanent easement.”
After citing authorities, it is said:
“The general rule to be extracted from the authorities is that the legislative power vested in municipal bodies is something which cannot be bartered away in such manner as to disable them from the performance of their public functions.”
• While the Supreme Court of this state has, in a number of cases,, sustained the power of the commissioners or other governing body of municipalities to grant to public service corporations the right to place their tracks, poles, wires, pipes, etc., in, under, and along the public streets, no case has been found in which the power has been claimed to grant an exclusive and perpetual use of a street or sidewalk to such corporations. Griffin v. Railroad, 150 N. C. 312, 64 S. E. 16, relied on by plaintiff, falls far short of sustaining such power. There the commissioners granted the right to the defendant to lay its track along the street. There is no suggestion that the track occupied the entire street, to the exclusion of pedestrians, or persons passing in vehicles. The plaintiff, as an abutting owner, sought to enjoin the defendant from exercising the privilege granted. For manifest reasons, and upon well-settled principles, the court refused to grant the injunction. The grounds upon which that and the cases cited in the opinion of the Chief Justice are based are not applicable here. That the occupation of the sidewalk by plaintiff’s track excludes all other persons from passing over' the sidewalk otherwise than by walking over the track, when not appropriated by plaintiff’s freight cars, is conceded. The extent of the claim asserted by plaintiff, for all practical purposes, vests in it the absolute and exclusive use of the sidewalk. This claim is based upon an ordinance adopted by the commissioners giving “permission” to its predecessor in title' to occupy the sidewalk, without any limitation in respect to time, and without any valuable consideration to support a contract, or the use of any contractual language. The permission was given to meet a condition and promote a purpose, temporary in character, which has ceased to exist. If plaintiff’s contention is sustained, the entire sidewalk, for 420 feet on one of the principal streets of the capital city of the state, in a short distance of the state house and other public buildings, extending from Jones to Lane streets, is appropriated to the exclusive use of the plaintiff. The claim is based upon the language of an ordinance adopted 30 years ago, to meet a temporary condition, during which time the city has increased very greatly in population. The
“If flit) municipality has the power to grant such right or franchise, and a corporation, believing and assuming that it has the consent or grant of the municipality, has, with the knowledge of the proper municipal authorities, proceeded to exercise the right or franchise, and has constructed, maintained, and operated its works and appliances in the city streets, the municipality will, in a proper case, be estopped by the acts and conduct of its officers and representatives in knowingly permitting and acquiescing in the use and occupation of the streets from asserting the invalidity of the grant of the franchise, at least so far as its failure to pass an ordinance or take the steps necessary to effectuate the grant.” Mun. Corp. 1242.
“As to streets * * * and other property which a municipal corporation may hold in trust for the public use, without power to alternate, it is true that no statute of limitations can run.” Moose v. Carson, 104 N. C. 431, 10 S. E. 689, 7 L. R. A. 548, 17 Am. St Rep. 681; Rev. § 389.
The occupation of the sidewalk, under the license, was not adverse until the passage of the ordinance of June 10, 1913. To the suggestion that the occupation of the sidewalk on the eastern side of Salisbury street does not unnecessarily impair the usefulness of the street, because there is a space of 43 feet between curbs and 13 feet sidewalk on the western sidewalk, it is sufficient to say that the control of the streets, in these respects, is committed to the board of commissioners of the city and not to the courts. If the board has the power to pass the ordinance of June 10, 1913, requiring the plaintiff to remove the track from the sidewalk, it is neither the province nor within the power of the court to question its wisdom or propriety. It may not be improper, however, to say that in the light of the facts agreed upon and physical conditions, of which it is impossible to be ignorant, and the contention seriously made and ably pressed by plaintiff, the wisdom of the action of the commissioners for the preservation of the rights of the public committed to their care is very manifest. The questions presented and argued are, in many respects, of first impression in this state, and their correct solution of much interest to the public and public service corporations, whose business requires the use of the public streets. I concur in the opinion of the Supreme Court that :
“The city clearly possesses the statutory right to assent to the use bf the street by the railroad company. This is often a most essential power, necessary to be used for the benefit of the people of the city.”
I am further of the opinion that in the absence of an express legislative grant, the terms of which are free from doubt or ambiguity, the municipal authorities are not authorized to grant to a public utility corporation a franchise to occupy and appropriate the exclusive use of a street or sidewalk to be enjoyed in perpetuity. Such power was
The only relief sought being injunctive, the plaintiff’s bill will be dismissed, and the defendants will recover their cost.