93 Neb. 263 | Neb. | 1913
Lead Opinion
In March, 1907, the mayor and council of the city of Lincoln duly enacted and approved an ordinance decreeing the necessity of a viaduct and approaches thereto “over and across the tracks of certain railway companies in and over P street of the city of Lincoln,” and requiring the defendant company to construct a viaduct over and across its railway tracks at P street. At the general city election of that year the plan was approved and the mayor and council empowered to require its construction. In August of the following year the mayor and council duly passed and approved an ordinance for that purpose. The company having neglected to construct the viaduct, this action was brought in the district court for Lancaster county to obtain a peremptory writ of mandamus to compel it to do so. Upon trial in that court the issues were found in favor of the city, a peremptory writ ordered as prayed, and the defendant company has appealed.
There is no question raised as to the regularity of the preliminary proceedings, but it is contended by the defendant that there is no public street over its right of way at the place in question, and that therefore the city of
It is contended by the city that the mayor and council were without authority to vacate -the streets of the city, and that the proper construction of the ordinance is that it grants a right of way to the company over the streets of the city, and does not vacate the streets for any other purpose. Upon the first contention it is sufficient to say that the statute then in force expressly authorized the mayor and council “to open, widen, or otherwise improve, vacate, care for, control, name, and rename any street, avenue, alley, or lane, parks, and squares, within the limits of the city.” Comp. St. 1893, ch. 13a, art. I, sec. 67, subd. IV. Some authorities are cited by the relator holding that the city, under such a statute, cannot vacate a public street solely for the purpose of donating it to some individual or corporation, but those authorities are not applicable for two reasons: First, because in those cases the streets when vacated remained the property of the
The twelfth section of the ordinance provided that the company and its successors and assigns are “given and granted the right and privilege of occupying so much of said streets and alleys, vacated by this ordinance, as said railway company, its successors and assigns, may at any time desire for its railroad, switches, side-tracks, depots and other railroad purposes.” It is contended that this shows that the intention was merely to create a right of way over the streets vacated, and not to vacate the streets named for other purposes. It will be noticed that the title of the act specifies that it is the purpose to grant a right of way through the streets and alleys of the city an'd to vacate portions of said streets and alleys, not only for the purpose of giving a right of way, but also to give “other privileges” in said city. The first section of the ordinance granted a right of way “over, through, along and across (naming 12 streets), together with the right of way upon, along and across all alleys crossed or intersected by said located line.” This section, does not mention the vacating of any streets, and was sufficient for the purpose of granting a right of way, if that was all that was intended. O street was then, as it is now, the main thoroughfare of the city, and section 1 also provided that no more than two tracks, including the main line, should be constructed over O street. The ordinance also provided that the company shall not construct more than three tracks, including the main line, across L, M, N and Monroe avenue, which lie immediately south of P street, and not to exceed four tracks, including its main line, across Q and R streets, which lie immediately north, and there is no limitation of the number of tracks to be placed
Other sections of the ordinance vacate that part of Twentieth street lying between P and O streets which the company was required to pave, as above stated, and also a small portion of two alleys through which the right of way extended; and it is contended that the provision, that the company should have the right and privilege of occupying these vacated parts, indicates that the intention was to make a qualified vacation for right of way only. The railway company did not own the property abutting
We do not at this time determine the right ánd power of the city to now open the street over these station grounds by condemnation proceedings, as that question is not presented by the record.
The judgment of the district court is reversed and the action dismissed.
Reversed and dismissed.
Dissenting Opinion
dissenting.
I am unable to concur in the construction by my associates of ordinance No. 218, published in the Revised Ordinances of the City of Lincoln in 1895 as No. 1641. At the time that ordinance was passed and the streets entered upon by the respondent, I do not think either the city or the railway company regarded the ordinance as an absolute and unlimited vacation, for its full width, of any part of P street. To my mind, the intent and purpose of the ordinance was simply to give the company a right of way across the streets and alleys of the city, named in the ordinance, together with the right to construct certain side-tracks across but not along P street. That it was not the intention of the city to give the company the right to erect its depot building upon P street, or any other street, is shown by section 4 of the ordinance, which provides: “That said railway company shall, within one year, construct a substantial passenger depot building of brick or stone, or brick and stone, at or near the northwest corner of the intersection of O and Twentieth streets and north of O street.” In order to comply with this provision of the ordinance, the company would be compelled to build its depot upon its own ground lying north of O, west of Twentieth and south of P streets. This construction is corroborated by the fact that the company did, within one year thereafter, construct its depot building as I have indicated. No part of the foundation or walls of the depot extends north of block 28, or upon P street. The only encroachment upon P street by the depot is by a projection of the cornice, upon the north end of the baggage room, a few inches over the south line of P street. That the ordinance was intended merely as a grant of a right of way and not as an absolute vacation of P street is shown by the ordinance itself. The title of the ordinance reads: “An ordinance providing for the passage of the railway of the Chicago, Rock Island & Pacific Railway Company across and through the streets and alleys of the
Section 7 provides: “That all that part of P street in said city lying south of lots 9, 10, 11 and 12, in block 13, in Kinney’s O street addition to said city, be and the same is hereby vacated.” If the construction placed upon the' ordinance by the majority opinion is correct, then that portion of P street, lying south of those four lots in block 13, and north of lots 1, 2, 3 and 4 in block 28, became the absolute property of the company, by reason of the fact that it was then the owner of the four lots in block 13 and the four in block 28, above enumerated, and P street, from the west line of lot 9 in block 13, and lot 4 in block 28, east to Twentieth street, no longer existed. If the city council considered that it was so vacating that portion of P street, wiping it off the map of the city, so to speak, and giving it to the railway company, what did either the city or company expect that the city and the public generally would gain by the provision in section 8 of the ordinance, which provided that the company “shall dedicate, pave and keep in repair, as a street, a strip of
Again, it was admitted by the respondent at the trial “that, before the construction of the railroad, the city built a water main on P street at the place in controversy in this lawsuit, and has since said time maintained it;” yet the ordinance nowhere reserves to the city the right to go upon this part of P street for the purpose of making repairs that may at any time be needed upon its water main. If the city desired to go upon that ground for the purpose of renewing or repairing this water main, it would have to first obtain the consent of the railway company, or proceed as a trespasser. I do not think either the city or company then considered, or that the company should now be permitted to contend for any such construction of this ordinance.
Again, section 12 of the ordinance provides: “That said Chicago, Rock Island & Pacific Railway Company, its successors and assigns, be and the said railway company, its successors and assigns, are hereby given and granted the right and privilege of occupying so much of said streets and alleys, vacated by this ordinance, as said railway
It is contended by the city that, to hold that the ordinance absolutely vacated that portion of P street in controversy, and thereby, by reason of the fact that the company owned the lots on either side abutting thereon, transferred to the company the title and absolute ownership of that portion of the street so vacated, is contrary to, prohibited by, and in conflict with the fourteenth amendment to the constitution of the United States, in that it constituted the taking of property without compensation; that the ordinance was passed without a vote of the people, or an opportunity on the part of any one to be heard in any tribunal as to compensation. It is stipulated that O and P streets and the various lettered streets running east and west from corporation line to corporation line “were duly laid out and dedicated for public use as streets, and the fee title thereto conveyed to the city of Lincoln.” Relator contends that, such being the case, if the street was vacated as claimed, the title to the ground did not pass to the abutting lot-owners, but remained the property of the city, and became a part of its real estate, which it could not donate to the company, nor even sell without a vote of the electors of the city, in accordance with section 9, article II, chapter 13a, Compiled Statutes 1891, which provides that the mayor and
P street is one of the main public streets of the city of Lincoln, extending from the city limits on the west to the city limits on the east. It is well built lip on both sides of the street for over a mile west of the point in controversy. The post office, the Lincoln Hotel, the Savoy Hotel, the Commercial Club, the Elks Club, the Young Men’s Christian Association, and many large business buildings front upon it. It is also built up on both sides with valuable residences, solidly for many blocks, and partially so for many more blocks east of the point in controversy. By a vote of the electors it has been decided that a viaduct should be built across the tracks of the railway company where they cross that street. The necessity for such a viaduct is not questioned. 0 street (the next street south) is frequently quite congested. Numerous street car lines run on O street. It is the main street leading to the city cemetery. The travel over it by automobiles, carriages and wagons is more or less continuous, and the crossing at its intersection with respondent’s track is necessarily more or less attended with danger, notwithstanding the precautionary steps taken by the company to prevent accidents. With a viaduct across the tracks on P street the congestion on O street would be relieved. Automobiles and other vehicles could pass over the tracks without danger or delay. The people living on P street, east of the tracks, would have the use of the street to and from the post office and business center of the city, and the thousands of citizens living west of Twentieth street would have a safe and never-obstructed route to the city cemetery. The proposed viaduct would not prevent or in the least obstruct the company in the free use’ of the
Tonkawa Milling Co. v. Town of Tonkawa, 15 Okla. 672, is as like the case at bar as “two peas in a pod.” The title to the ordinance in that case is: “An ordinance granting a right of way to the Blackwell and Southern Railway Company througli the town of Tonkawa, Kay county, Oklahoma territory, and, for the purpose of such right of way, vacating certain streets, avenues and alleys in said town of Tonkawa.” The only difference in that title and the one under consideration here is the words of vacation and of the purpose therefor are transposed. In