5 Wash. 634 | Wash. | 1893
The opinion of the court was delivered by
Plaintiff brought an action against the defendants and sought to restrain them from proceeding with the construction of a certain sewer, for the reason that in the prosecution of the work by the contractor in accordance with the plans and specifications therefor, the railway of the plaintiff, and the operation of the same, would be greatly interfered with. The superior court sustained a demurrer to the complaint, and plaintiff electing to stand thereon, judgment of dismissal was rendered, from which it has prosecuted this appeal.
Two questions are presented by the record for our decision—First, Had the city the right to construct its sewer along the street in question in the center thereof, notwithstanding the fact that there was room upon either side of the track of the plaintiff to permit of its construction without interfering therewith; and, secondly, if it had such right, were the allegations of the complaint sufficient to show that in the prosecution of the work as proposed the rights of the plaintiff would be unreasonably interfered with.
As to the first question above suggested, it may be stated as a general proposition well established by the authorities that a city has absolute control over its streets and every
“Nothing herein contained shall be deemed or construed to mean that the city relinquishes any of its rightful authority over the streets, or any parts of them, but the city, by its agents, officers or contractors, shall have and retain its full power and authority to enter upon said streets or any part thereof, for the laying of gas pipe, water pipes, the construction of sewers or other public works. ’ ’
And it will be seen therefrom that the rights of the city are fully protected, and that the right to thus control its streets must be held to have been preserved as well in that portion thereof covered by the tracks of the plaintiff as in any other. If such had not been the intention there would have been no need of the provision that the rights granted the plaintiff were subject to the rightful authority of the city to enter upon said streets, or any part thereof, for the construction of sewers, etc. It is clear that without such reservation the city could enter upon the parts of the street not covered by the tracks, and to give any force to such reservation at all it must be held to refer to that portion of the street thus covered.
“The plaintiff further alleges that said sewer can be constructed in the center of the said street, if necessary, without injuring the plaintiff’s property, and without interfering with the operation of plaintiff’s said street railway.”
It is claimed on the part of the appellant that this allegation being taken as true establishes the fact that it is not necessary that the city should interfere with the rights of the plaintiff at all in the construction of said sewer. In determining the effect to be given to this language, the allegations or want of allegations in the complaint as a whole must be taken into consideration. In such complaint there is no allegation tending in the least degree to show any bad faith on the part of the city in its determination to construct said sewer in the manner proposed. There is no allegation that in doing the acts which were sought to be restrained the city was intending, to wantonly or maliciously interfere with the rights of the plaintiff. If such allegations had been in the complaint, though they would perhaps have been to a certain extent but legal conclusions, they might have aided the contention of the appellant as to the construction which should be put upon the language above quoted; but in their absence we must construe such language as it reads, and if there is any doubt as to the proper construction, that most unfavorable to the plaintiff must be taken.
The only fact alleged in this clause is, that the work can be done without interfering with the rights of the plaintiff, and this allegation alone is relied upon to show that the plan under which said sewer was being constructed was un
It is contended on the part of the appellant that if such allegation had been that the work could be practicably done in some other than the way proposed, that the addition of the element of practicability would have been simply a legal conclusion. In a certain sense this is no doubt true, and in such a sense the allegation that the work can be done at all is a legal conclusion; but in another and ordinary sense such allegation may be said to be one of fact, or at least such as good pleading allows to be so alleged. There is hardly any pleading but what is full of allegations which when critically analyzed are nothing more than legal conclusions. Conclusions of law and allegations of fact are often so intimately connected that it is almost impossible to allege the one without including more or less of the other. To allege that a certain thing can be done, if treated as an allegation of fact, is substantially different from an allegation similarly treated that the work can be practicably done.
It follows that the presumption that the city was proceeding properly and in such a manner as not to unreason