123 P. 508 | Idaho | 1912
Parties to this action will be designated as follows: Trueman & Wunderlich, partners, plaintiffs; Chicago, Milwaukee and St. Paul Railway Co., as railway company; Chicago, Milwaukee & Puget Sound Railway Company, as railway company, purchaser; village of St. Maries, as village of St. Maries.
This action was instituted by the plaintiffs against the defendants to recover the sum of $3,000 claimed to be due the plaintiffs by reason of the acts of the defendants in vacating a certain street and granting a right of way to the railway company. The railway company filed a demurrer to this complaint. No further action was taken against the railway company. The village of St. Maries failed to appear in said action and its default was entered, and the cause was tried, findings of fact and conclusions of law were made, and a judgment entered in favor of the plaintiffs against the village of St. Maries for the sum of $3,000 damages. This appeal is from the judgment.
The respondents have filed a motion to dismiss the appeal. Two grounds were urged: First, that the transcript on appeal is not certified by the clerk, in that the clerk has not certified that the transcript contains a copy of the judgment-roll. We find, however, in the transcript a certificate of the clerk of the district court made on the 13th day of October, 1910, in which he certifies “that the foregoing judgment entered in
The second ground of the motion is that no undertaking on appeal was given. The undertaking on appeal is copied in the transcript and is in proper form and purports to have been executed by the village of St. Maries by O. E. Hailey, chairman of the board of trustees and the National Surety Company, by -. From this statement it appears that the bond was executed by the appellant, but was not signed by the surety company. The appellant, however, contends that in a case where an incorporated village under the laws of the state is either plaintiff or defendant, no bond or written undertaking or security can be required, and that such village has the same rights, remedies and benefits as if the bond, undertaking or security were given or approved, and in support of this contention cites sec. 4935 of the Rev. Codes: “In any civil action or proceeding wherein the state or the people •of the state, is a party plaintiff, or any state officer, in his official capacity, or on behalf of the state, or any county, or
Counsel for respondénts, how.ever, answer this contention and claim that the word “city” as used in the above section does not include villages organized under the laws of this state, and was only intended as immunity to cities and not towns or villages. This court has in a number of instances held that in the law regulating the organization and government of cities and villages in this state the words “cities,” “villages” and “towns” have been used indiscriminately and one word for the other; and we have no doubt whatever but that the legislature intended in using the word “city” in the above act to include all municipal corporations organized under the laws of the state governing the organization of cities and villages, and to exempt the state and county, and all municipalities organized as such, as cities and villages.
The motion to dismiss the appeal is therefore denied.
Upon the argument and in the briefs of counsel for appellant but one question is presented upon which a reversal is asked, and that is: Does the complaint state facts sufficient to constitute a cause of action ? If the complaint fails to state facts sufficient to constitute a cause of action against the village of St. Maries, then it does not support the judgment and the judgment must be reversed. (Rev. Codes, sec. 4178; Crowley v. Croesus Gold Min. Co., 12 Ida. 530, 86 Pac. 536.)
See. 11, art. 11 of the constitution of this state provides: “No street, or other railroad, shall be constructed within any city, town or incorporated village without the consent of the local authorities having the control of the street or highway proposed to be occupied by such street or other railroad.” And sec. 881 of the Rev. Codes provides: “Every .... rail-read corporation has power to lay conductors and tracks
“Twenty-seventh. Create, open, widen or extend any street, avenue, alley or lane, or annul, vacate or discontinue the same whenever deemed expedient for the public good, and to take private property for public use or for the purpose of giving right of way or other privileges to any railroad company, or for the purpose of erecting or establishing market houses or market places, or for any other necessary public purpose: Provided, however, That in all cases the city or village shall make the person or persons whose property shall be taken or injured thereby adequate compensation therefor,
In order, therefore, to allege a cause of action against the village of St. Maries for damages, resulting from the acts of the village in granting a franchise or right of way to a railway company upon the streets of said village, or for damages resulting from the vacation and abandonment of a street and its abandonment to the exclusive use of a railway company, it is necessary that allegations be made showing the facts which result in the granting of such right of way, and the facts showing the vacation and abandonment of such street; and in alleging such facts a full compliance with the requirements of the statute and the ordinances of said village must appear from such allegations. Turning now to the complaint, we find that in paragraph 4 it is alleged in substance that the railway company made application to the village of St. Maries for permission to lay its line of railway across Second avenue, in said village, and that the village gave said railway company permission to lay its tracks upon the condition that the railway company furnish to said village a bond to indemnify it for any damage that it might suffer or become liable for by reason of said tracks being laid upon and across said street. And in paragraph 5 of the complaint it is alleged in substance that the railway company did lay its track upon said street and in so doing made a large cut of the depth of twenty feet, and sixty feet in width, and in such manner that said street for its entire width, and for a distance of about one hundred feet in length, was completely taken and blocked by said railway company; and in paragraph 6 of the complaint it is alleged that in granting said privilege the village of St. Maries failed to have the damages to abutting or adjoining property owners ascertained by commissioners or appraisers, and that no commissioners or appraisers ever ascertained the damage to be paid to the plaintiffs who were adjoining property owners; and it is further alleged that the
In paragraph 6 of the complaint it is alleged that damages to abutting or adjoining property were not appraised and ascertained, and because of this fact it is alleged that the village was without jurisdiction and without any right whatever to grant said right of way or permission to cross said street. The damages to be appraised under the provisions of subds. 26 and 27 of see. 2238 of the Rev. Codes are damages and injuries resulting from the vacation of a street and the taking of the same either by the city for its exclusive use, or the granting of the right to take the same to a railway company or any other company making exclusive use of the same. And under the constitution and the statute a city has no right to condemn or vacate a street for the private use of a railway company until full compensation has been made for all injury which would result from such taking. Therefore under the allegations of the complaint there was no complete vacation or condemnation of the street because compensation was not assessed or ascertained, as provided by law, and the village had no authority to vacate said street in the sense of condemning it for the exclusive use of the railway company. If, however, the allegations of the complaint are taken to be sufficient to show that the village was acting within its power in permitting the railway company to
In the case of Sorensen v. Town of Greeley, 10 Colo. 369, 15 Pac. 803, the supreme court of the state of Colorado, in discussing the liability of a municipality for damages resulting from the vacation of a street and the granting of a right of way to a railway company to lay tracks thereon, and the occupancy of said street by such railway company, says: “In no view of the case can the town be held liable for the injury resulting from such disturbance of the flume and lateral of the plaintiff. The granting of a right of way on a street for a railway by a municipality does not create a liability against the municipality for the damages occasioned by the corporation exercising the rights so granted. The liability in such ease is against the corporation exercising and enjoying such rights. (City of Denver v. Bayer, 7 Colo. 113, 2 Pac. 6.) ”
In the ease of Jordan v. Benwood, 42 W. Va. 312, 57 Am. St. 859, 26 S. E. 266, 36 L. R. A. 519, the supreme court of West Virginia reviews the facts in a case very similar to the one now under consideration, and says: ‘ ‘ The change of grade on the street was made by a street railroad company under
In the case of Frith v. City of Dubuque, 45 Iowa, 406, the supreme court of Iowa, in discussing this question, says: “As the. cause must be reversed for the errors above discussed, it is not necessary to determine the effect of the failure of the city to make a separate defense in the court below. We do not believe the city is liable. It may by ordinance permit the use of a street for a railway. The railway company accepts the grant subject to liability for any damages which may be sustained by individuals, by an improper construction of the road, or unauthorized use of the street. The use of the street under such permission or grant cannot make the city liable in damages.”
In 3 Abbott on Municipal Corporations, sec. 841, the author, after reviewing the authorities upon the use of highways by steam railways, says: “Since the legislature directly or indirectly can authorize the use of a highway by either a steam or street railroad, the right of the abutter, if any, is against the railroad company and not against the public corporation.” And the author cites Bancroft v. City of San Diego, 120 Cal. 342, 52 Pac. 712; Burkam v. Ohio & M. R. Co., 122 Ind.
It appears to us, therefore, from the allegations of the complaint that notwithstanding the fact that the village of St. Maries may have granted the railway company a right of way over and across certain streets within the village and in doing so complied with the law as to granting such right of way, and thereafter the railway company took possession of the streets and excavated the same, and damage has resulted therefrom, still the cause of the wrong and injury was the acts of the railway company alone, and not the village.
Counsel for respondents, however, in their brief finally argue: “This is not a case where the village trustees have attempted to do something which the statute does not give them any authority to do whatever, as the statute gives them authority to vacate the street, but provides the manner in which the damages must be assessed, and it is because of the failure of the village trustees to assess the damages upon the doing of the act which the statute gives them the right to do that this action is maintained, and not because of the fact that the village trustees have proceeded to carry out some object for which they have no authority whatever.” If, therefore, the action is for the sole purpose of recovering damages because the village trustees failed to assess damages to the property adjoining the street, then it would have been necessary to have alleged facts showing the condemnation and assessment and payment of such assessment, under subds. 26 and 27 of sec. 2238 of the Rev. Codes. But these allegations have not been made in the complaint and there are not facts alleged from which the conclusion can be reached that the village attempted in any way to 'condemn or take property under the authority of these two subdivisions of sec. 2238.
