People ex rel. Kunze v. Ft. Wayne & E. Ry. Co.

Citation92 Mich. 522,52 N.W. 1010
PartiesPEOPLE ex rel. KUNZE et al. v. FT. WAYNE & E. RY. CO.
Decision Date28 July 1892
CourtSupreme Court of Michigan

Appeal from circuit court, Wayne county, in chancery; GEORGE S HOSMER, Judge.

Proceeding in the nature of quo warranto by the people, on the relation of Henry C. Kunze, and others, against the Ft. Wayne & Elmwood Railway Company to prevent it from laying its tracks on a certain street. Judgment for defendant. Informants appeal. Affirmed.

Samuel W. Burroughs, Pros. Atty., and Adolphus A. Ellis, Atty. Gen., (Henry M Cheever and Jasper C. Gates, of counsel,) for appellants.

Edwin F. Conely and Orla B. Taylor, for appellee.

MONTGOMERY J.

This is an action in the nature of a quo warranto filed to exclude the defendant corporation from laying its tracks upon and occupying for the purposes of a street railway Champlain street, in the city of Detroit, from Randolph street to Elmwood avenue. It is claimed that the defendant has no right to the franchise or privilege in question, because (1) the street is too narrow to admit of defendant's cars and other vehicles at the same time, and that the contemplated use by the defendant will interfere with the right of the general public in the street; (2) that the amended ordinances of the city of Detroit under which the defendant claims are invalid, for the reason that the original ordinance was not re-enacted and published, but it was attempted to amend it by reference to its title merely; and for the further reason that the council by this ordinance attempts to grant to the defendant the exclusive use of the street for street railway purposes.

1. The case shows that the width of Champlain street is 50 feet, and the paved portion 25 feet. The ordinance gives the defendant the right to construct a single track railway in the middle of the street. The gauge of the track is 4 feet 8 1/2 inches, and the width of a close car 7 feet and 9 inches, leaving a space of nearly 9 feet for the passage of vehicles. This is sufficient width to admit of the passage of ordinary vehicles, and the ordinance is not, in my opinion, so unreasonable as to require the interference of the court, if it be held that an ordinary street railway is not in and of itself an additional servitude. I think such a use of the street does not create an additional servitude. Opinion of Justice GRANT, Railway Co. v. Mills, 85 Mich. 643, 48 N.W. 1007, and cases cited; Railway Co. v. Heisel, 38 Mich. 62; Grand Rapids St. Ry. Co. v. West Side St. Ry. Co., 48 Mich. 433, 12 N.W. 643.

2. The right being such a one as the common council had a right to grant, and the common council having assumed to grant the right, the case presented is not such a one as calls for the exercise of the jurisdiction of this court in a public proceeding instituted by quo warranto. The question presented is similar to that involved in Maybury v Gas-Light Co., 38 Mich. 154. In that case it was sought by quo warranto to deprive the respondent of its franchises, on the ground that the company had violated the terms of the agreement upon which the assent of the city to the use of its privileges was granted. Chief Justice CAMPBELL, in delivering the opinion of the court, said: "In the present case the state has shown by the incorporating act that public policy is not opposed to and is in favor of allowing gas companies to exist, as they only can exist by having power to lay their pipes. The consent of the municipal corporation is required because the terms on which streets may be safely allowed to be occupied for the purposes of laying gas pipes can best be determined by leaving the regulation to be harmonized with all other exigencies by the authorities controlling their use. * * * The exercise of the power of using streets for laying gas pipes is rather an easement than a franchise. * * * It is a matter peculiarly local in its character, and which should always be to a reasonable extent under municipal supervision to prevent clashing among the many convenient uses to which ways must necessarily be subjected, for water, drainage, and other urban needs. But the permission to lay these pipes does not differ in any respect from that required for laying railways over land, or ditches through it. It is not a state franchise, but a mere grant of authority, which, whether coming from private owners or public agents, rests in contract or license, and in nothing else. A violation of the contract, or an unauthorized intrusion, must be redressed, as all ordinary wrongs are redressed, by the usual legal remedies. It in no way concerns the state whether the power is granted or withheld, nor whether the corporation has or has not fulfilled its agreements. * * * This court has heretofore refused to recognize the encroachment of a corporation on a highway as subject to be reached by quo warranto, and we discover no better reason for interfering in the present case." Relator's counsel rely upon Coon v. Plank Road Co., 31 Mich. 178, and Mayor v. Park Com'rs, 44 Mich. 602, 7 N.W. 180. The case of Coon v. Plank Road Co. was a case involving a forfeiture of a franchise, and not a case for private redress. Mayor v. Park Com'rs was a proceeding against public officers to inquire...

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