77 P. 849 | Utah | 1904
Lead Opinion
after making the foregoing statement, delivered the opinion of the court.
The first question presented by this appeal is, did ■the city council exceed its power by granting to defendant railway company a franchise to construct and operate the switch or spur track in question.? The power of a city council to grant franchises to railroad companies
Plaintiffs cite and rely upon the case of Cereghino v. Oregon S. L. R. Co., 26 Utah 467, 73 Pac. 634, recently decided by this court, which they insist is decisive of the case under consideration. In that case the city council of Salt Lake City, on petition of the Consolidated Wagon & Machine Company, a private corporation, granted by resolution to the railway company a franchise to construct on one of the public streets of the city a switch track to be used for the. exclusive benefit and convenience of said wagon and machine company. The record in that case also showed there were thrée other switch tracks on the street in the vicinity of plaintiff’s property, and that the construction of an additional switch track immediately in front of, and in close proximity to, her property, would have shut it off from the street by a network of railroad tracks, the operation of which would have greatly depreciated the value of, if not entirely ruined such property, for the purposes to which it was devoted. In deciding the case this court held that the city council had not properly exercised its power' in granting the franchise, and that it could not lawfully permit the use of the public streets for exclusively private purposes, to the detriment of the public, and damage to private property abutting on such street. In the case at bar, as1 hereinbefore observed, the switch track complained of is a part of a general railway system, and may be used by any and all who may have occasion to ship freight over it, and is not designed for the exclusive use, benefit and convenience of any particular person, company, or corporation. True, it is evident from its location and surroundings that only a limited number of persons and business
In Phillips v. Watson, 63 Iowa 28, 18 N. W. 659, this same general question was involved, and the court said: “The character of a way, whether it is public or private, is determined by the extent of the right to use it, and not by the extent to which the right is exercised. If all the people have the right to use it, it is a public way, although the number who have occasion to exercise the right is very small.” And likewise in the case of People v. Blocki, 203 Ill. 363, 67 N. E. 809, it was held that “all termini of tracks and switches are more or less beneficial to private parties, but the public character of the use of the tracks is never affected by this. If they are open to the public use indiscriminately, and under public control to the extent that railroad tracks generally are, they are tracks for public use.” Tested by this rule, which is supported by the weight of authority, the findings of the trial court that the city council exceeded its authority in granting the franchise, and that the spur track is a public nuisance, are erroneous.
Appellants’ next contention is that the court erred in finding that the operation of the switch track will be a taking of plaintiffs’ property, and a continuous trespass thereon, and that plaintiffs are entitled to injunc-
Some of the earlier decisions of the Supreme Court of the United States and some of the State courts, as well as the opinions of most of the text-writers who have discussed this question in their treatises on constitutional law and the law of eminent domain, have declared in favor of the more liberal and broader construction of
Appellants insist that, the city council having, lawfully granted the defendant railway company a franchise to maintain and operate the spur track in question, plaintiffs’ only remedy is by an action at law to recover such damages as they may sustain by its operation, and cite the case of Cereghino v. Oregon S. L. R. Co., supra, in support of their contention. The Cereghino case is not in point, and has no application to the issues in this case, only so far as the right of defendant railway company to occupy the street and sidewalk with the switch track is involved.
While the franchise granted in this case gives the
Under the provisions of the Constitution of this State hereinbefore referred to, a party whose property is about to be specially damaged in any substantial degree
We do not wish to be understood as holding that every inconvenience that an individual may be subjected'
Before the appellant railway company can subject •the property in question, or any part thereof, to the burdens to which it would be subjected by the running of
The judgment of the district court, so far as it affects that portion of the switch track located on the public street and requires the removal of the entire spur, is vacated, and said court is directed to so modify its findings and decree; but the judgment, in so far as it restrains the defendant railway company from operating cars and engines on the portion of the switch track located on the premises of the Anheuser-Busch Brewing-Association, is affirmed. The costs of this appeal are taxed against the appellants.
Concurrence Opinion
(concurring in part and dissenting in part). — I concur in that portion of the opinion which holds that the findings of the trial court that the city council exceeded its authority in granting the franchise to construct a spur track upon the street, and that the spur track is a public nuisance, are erroneous, and in that portion of the judgment of this court which vacates the judgment of the lower court in so far as it affects “that portion of the switch track located in the public street, and requires the removal of the entire spur;” but I dissent from the remaining portion of the opinion and judgment herein, because I do not think the facts in this case warrant interference by injunction, nor a proceeding under the law of eminent domain. If. the operation of the spur should, through carelessness or otherwise, cause injury to the plaintiffs, they have a remedy in damages.