St. Louis & S.F.R. Co. v. City of Tulsa

• Decision Date: 08 April 1914
• Docket Number: Equity 2031.
• Citation: 213 F. 87
• Parties: ST. LOUIS & S.F.R. CO. et al. v. CITY OF TULSA et al.
• Court: U.S. District Court — Eastern District of Oklahoma

213 F. 87

ST. LOUIS & S.F.R. CO. et al. v. CITY OF TULSA et al.

Equity No. 2031.

United States District Court, E.D. Oklahoma.

April 8, 1914

R. A Kleinschmidt and Fred E. Suits, both of Oklahoma City, Okl for complainants.

John R Ramsey and John R. Woodard, both of Tulsa, Okl., for respondents.

CAMPBELL District Judge.

The question now presented arises upon application of the plaintiffs for a temporary injunction pending final decree to prevent the defendants from proceeding in the state court to condemn that portion of plaintiffs' right of way which would fall within the lines of Frankfort avenue in the city of Tulsa if the same were extended across the plaintiffs' right of way.

By resolution of its commissioners, the city of Tulsa has provided for the extension of Frankfort avenue over plaintiffs' right of way and has directed its attorney to institute condemnation proceedings in the proper state court to condemn for the use of said Frankfort avenue so extended that portion of the plaintiffs' right of way falling within the same. It appears from brief of counsel for defendants that the charter of the city of Tulsa gives the city the right to condemn property for public purposes when deemed expedient whether such property be within or outside of the city. Among its other powers in the charter it has the right to extend streets. The charter further provides that the procedure for the condemnation of property by the city shall be governed and controlled by the state laws in force in reference to condemnation of right of way for railways and the assessment of damages therefor; the city occupying, in such proceeding, the position of the railroad company. It does not appear that the charter specifically gives the city the right to condemn, for any public use of the city, property already devoted to another public use; but it is provided in the charter that the city shall have and exercise all powers of municipal government not prohibited to it by the charter or by some general law of the state of Oklahoma or by the provision of the Constitution of the state. The charter further provides that all questions arising in administering the city government, not provided for in the charter, shall be governed by the state laws in such case made and provided. By section 599, Revised Laws of Oklahoma 1910, it is provided that cities may take private property for public use; but in such case the city shall make the person or persons whose property shall be taken or injured thereby adequate compensation therefor, to be determined as provided by law for the condemnation of property for railway purposes. In sections 1400 to 1410, inclusive, of 1910 Revised Laws of Oklahoma, is found the procedure by which railway companies may condemn property for railway purposes, section 1404 of which reads:

'The provisions of this article with reference to eminent domain shall apply to all corporations having the right of eminent domain, and all such corporations shall have the right, under the provisions of this article, to acquire right of way over, along or across the property or right of way of any other such corporation, not inconsistent with the purposes for which such property was taken or acquired. In all cases of condemnation of property for either public or private use, the determination of the character of the use shall be a judicial question; and the procedure shall be as provided herein: Provided, that in case any corporation or municipality authorized to exercise the right of eminent domain shall have taken and occupied, for purposes for which it might have resorted to condemnation proceedings, as provided in this article, any land, without having purchased or condemned the same, the damage thereby inflicted upon the owner of such land shall be determined in the manner provided in this article for condemnation proceedings.'

It is clear from a reading of the foregoing section that municipal corporations fall within its terms, being, as we have seen, corporations having the right of eminent domain for certain purposes. It is also clear that the exercise by the city of the right of eminent domain over property of any other corporation having right of eminent domain, which property is already devoted to a public use, is limited to such taking as is not inconsistent with the purposes for which such property already devoted to public use was taken or acquired.

Therefore, if the extension of Frankfort avenue across the plaintiff's right of way would be inconsistent with the purposes for which the plaintiffs acquired and are now using the right of way at that point, then it cannot be said that the city has the right to extend the street as it is proposed to do. If the right does not exist, then injunction is the proper remedy. 15 Cyc.p. 988; Lewis on Eminent Domain (3d Ed.) Secs. 901, 902, and 918; High on Injunctions, Sec. 597; C., R.I. & P. Ry. Co. v. Williams (C.C.) 148 F. 442, and cases cited.

It is immaterial whether the railroad company's right of way was acquired by purchase or by regular condemnation proceedings. It is presumed to have been lawfully acquired by the railway company, and is actually devoted to and needed for the public use, within the legitimate exercise of its corporate franchises. The question for the court, when it arises in a judicial investigation of this character, is not how the land was acquired, but how it is used or whether it is necessary for a public purpose. Matter of Rochester Water Commissioners, 66 N.Y. 413. If the use to which the city will devote the property by the extension of the street is inconsistent with the use to which the railroad company is now devoting it, then the right of the city to extend the street across the right of way does not exist. Minnesota & St. Louis R. Co. v. Village of Hartland, 85 Minn. 76, 88 N.W. 423. The question of inconsistency involves the question as to whether the evidence shows that the opening of the proposed street will destroy or essentially impair the use of the right of way and depot grounds in question for the purpose to which they are now devoted. In Cincinnati, W. & M.R. Co. v. City of Anderson, 139 Ind. 490, 38 N.E. 167, 47 Am.St.Rep. 285, it is said:

'Immediately south of the projected street, parallel with said tracks and a part of said yard, the appellant owned ground upon which such water tank, coal dock, turntable, and roundhouse could have been located, and, with changes in some of the side tracks mentioned, could have been used as conveniently and practically with the same advantages, excepting the necessity of keeping said projected extension free from standing cars, and the said added hazards by reason of the crossing and recrossing by the public of the appellant's tracks. * * * Under the general law permitting cities to establish streets, we have no doubt of the implied power to extend streets transversely across the right of way of a railroad, when in doing so the uses for which such right of way is employed are not materially injured or destroyed, and where such uses and those for a street may coexist without impairment of the first uses. But where such uses cannot so coexist, or where the first use is materially impaired or destroyed, it is well settled in this state and elsewhere that the second public use will be denied. Lake Erie & W. Ry. Co. v. Town of Boswell, 137 Ind. 336, 36 N.E. 1103; City of Ft. Wayne v. Lake Shore & M.S. Ry. Co., 132 Ind. 558, 32 N.E. 215 (18 L.R.A. 367, 32 Am.St.Rep. 277); City of Seymour v. Jeffersonville, M. & I.R. Co., 126 Ind. 466, 26 N.E. 188; City of Valparaiso v. Chicago & G.T. Ry. Co., 123 Ind. 467, 24 N.E. 249; Railroad Co. v. Williamson, 91 N.Y. 552; In re City of Buffalo, 68 N.Y. 167; In re Boston & A.R. Co., 53 N.Y. 577; Railroad Co. v. Bronnell, 24 N.Y. 345; Milwaukee & St. P. Ry. Co. v. City of Faribault, 23 Minn. 167; Railroad Co. v. Muder, 49 Mo. 165; Mohawk & H.R. Co. v. Archer, 6 Paige (N.Y.) 83; St. Paul Union Depot Co. v. City of St. Paul, 30 Minn. 359, 15 N.W. 684; New Jersey Southern R. Co. v. Long Branch Com'rs, 39 N.J.Law, 28.'

The court, in passing on the case, said:

'The theory of the appellee, and that adopted by the circuit court, is that such buildings and structures are not indispensable, for the reason that they may be conveniently located elsewhere, and, after relocation, the uses of the street and the railway may coexist. This theory is not new, but, if adopted by any of the adjudged cases, the fact has not been discovered by us. On the contrary, numerous cases have denied it. In Railroad Co. v. Kip (46 N.Y. 546, 7 Am.Rep. 385), supra, it was said: 'It is claimed that there are other lands in the same vicinity, equally adapted to the use of the applicant, as those sought to be acquired by these proceedings, and which possibly might be acquired by purchase from the owners. But such objections to these proceedings are untenable. The location of the buildings of the company is within the discretion of the managers, and courts cannot supervise it.' In New York Cent. & H.R. Co. v. Metropolitan G.L. Co., 5 Hun, 201, it was said: 'Upon the point that the lands proposed to be taken are not necessary, because it might be practicable for the respondents to lay their tracks upon their own lands, by adopting another curve, we are not prepared to concur with the applicant's counsel. It is not a question of possibilities, nor of strict practicabilities within the opinion of engineers. No route was ever surveyed for a railroad which was not open to such objections, and if the right to take lands was to be determined by the conflicting evidence, whether, after all, the tracks might not, with greater or equal convenience, be laid elsewhere, the construction of a road would be

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