Wright v. Edwards Hotel & City R. R. Co.

Decision Date25 March 1912
Docket Number15084
Citation58 So. 332,101 Miss. 470
PartiesT. C. WRIGHT ET AL. v. EDWARDS HOTEL & CITY R. R. CO
CourtMississippi Supreme Court

APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.

Petition by T. C. Wright et al. for a writ of mandamus against the Edwards Hotel and City Railroad Company. From a judgment dismissing the petition the petitioners appeal.

The facts are fully stated in the opinion of the court.

Affirmed.

A. H Longino & Jas. R. McDowell, for appellants.

By reference to Vol. 36, Cyc., page 1398, it will be seen that mandamus is the proper remedy to enforce whatever rights abutting property owners have against a street railway which seeks to abandon a part of the line constructed and operated by virtue of a contract with the municipality. I shall also quote a few cases which will dispel any doubt on this point.

"A street railway company which has accepted the grant of a public franchise, involving the performance of certain services, can be compelled by mandamus to perform such service." Oklahoma City v. Railroad Co., 93 P 48.

"Mandamus is the proper remedy to compel such street railway company to perform the duty of maintaining and operating such railway for the benefit of the public. The public duty imposed upon the company is always active, and imperative, and must be executed until lawfully surrendered, suspended or abandoned by the legally expressed consent of the state; and the performance of this duty can be lawfully enforced by mandamus." State ex rel. v. Traction Company, 45 L. R. A. (N. J.) 837.

"Mandamus is the proper remedy to compel a street railway company to perform its duty of maintaining and operating its road for the benefit of the public. State ex rel. v. Traction Co., 62 N. J. L. (N. J. Sup.), 592, 43 A. 715, 2 L. R A. Digest, 2009.

"The operation of a street railway can be enforced by mandamus where a company which has acquired the right and commenced to perform the service attempts to discontinue it." State ex rel. v. Street Railway Co., 19 Wash. 518, 53 P. 719; State ex rel. v. A. C. L. R. Co., 53 Fla. 650; So. Ex. Co. v. Rose, 124 Ga. 581, 53 S.E. 185; Robbins v. Bangor R. & E. Co., 100 Me. 496; People v. Railroad Co., 35 L. R. A. 656; State v. Transfer Co., 83 N.W. 32; I. C. R. R. Co. v. People, 143 Ill. 434, 33 N.E. 173; Loraine v. Railroad, 205, Pa. 132, 54 A. 580; State v. Railroad Co., 57 N.W. 970; Loader v. Heights, 35 N.Y.S. 996. See also L. R. A. Digest 2, pages 2008, 2009.

The next point which I desire to discuss is, the right of abutting property owners and residents of an abandoned portion of track to invoke this relief. Of course they have the right to this relief, if they are entitled to the service. Our contention is that having once accepted and enjoyed by virtue of this franchise the use of the Clinton road, and having once constructed and operated a line along this road to the Livingston Park entrance; the appellee was without authority to abandon any portion of the line which it had ever constructed and operated. The court will see that the railroad company is given the right to use the road. It is not compelled to do so, but when it once accepts the franchise and when it once enters upon the user of the street, and when it once constructs and maintains a line of railway along this road, the persons who live on its line and buy and improve property because of the car service have a vested right to that service.

In support of this line of argument, I cite the court to the case of State ex rel. v. Street Railway Co., reported in 41 L. R. A. (O. S.) page 515. This case is almost identical with the case at bar, and I therefore request a careful reading of the very lucid opinion of the court, especially pages 518 and 519. I quote from the syllabi as follows:

"One who lives adjacent to a street railway and owns considerable property there which he has improved, relying upon the facilities afforded by the line, has a material individual interest which entitled him to be a relator in a mandamus to enforce the operation of the line."

"A street railway company which has received from the state and entered upon the enjoyment of a franchise for its business cannot cease to operate the line without consent of the granting power."

"The operation of a street railway can be enforced by mandamus where a company which has acquired a right and commenced to perform the service attempts to discontinue it."

"The absence of any grant or privilege or franchise to operate a street railway will not relieve a company which has occupied the streets for such purpose for several years from the duty to continue the service."

We maintain that the franchise granted to the railway company by the board of supervisors, when accepted becomes binding upon the company. The county says to the railway company, you may have the use of my streets upon which to operate your street car system. The street car company says to the county, we will take so much of your road and thereupon does take that portion of the road and builds a track upon it. It has a right to take more, within the limits of the franchise, if it desires. Whenever it takes and uses a portion of the road for the operation of its system, the franchise being thus accepted becomes a contract binding upon both parties. The railway company can force the county to permit the use of its roads according to the terms of the franchise, and the county or any one affected thereby can enforce compliance by the railroad company with its contract. As well said by Mr. Booth on Street Railways, page 6, "The franchise can be granted only for a public use and upon public consideration." And further on page 10, "A franchise is a privilege conferred by the sovereignty upon natural or artificial persons exercising powers which they could not lawfully assume except in pursuance of such a grant. It emanates from the government, and owes its existence to a grant." See also 27 Am. & Eng. Ency. of Law (2 Ed.), 23. "No escape for a breach of the conditions of the franchise is afforded by the mere fact that performance would put the company to great inconvenience and cause a large outlay of money, or that by reason of insolvency it is unable to perform." 27 Am. & Eng. Ency. of Law, p. 55.

Coming now to the last point which I shall discuss, to-wit: the order of the board of supervisors, declaring the extension to be a nuisance, I maintain that this order is void, per se. I deny that the board has a right to declare the property of any one a nuisance or an obstruction to the street and order its summary removal, without notice, much less without petition or complaint. Could the board declare the A. & V. R. R. track an obstruction to the Clinton road and put the convicts immediately to work and tear the track up, without notice to the owners of the railroad company? If this three hundred and fifty foot extension was an obstruction to the highway, the board should have given notice to the owners of this extension to appear to be heard and then should have taken some proof before adjudicating, the matter. But even if the board had adjudicated it to be an obstruction, it had not the power summarily to remove it. It should have notified the owner to remove the obstruction or abate the nuisance. But I deny that the board had a right, without a hearing, to declare a thing an obstruction which had been in existence for five years, unless the owners, and others affected by the adjudication should be given an opportunity to be heard. I agree with witness McNeill, the board was made a cat's paw of, in order to furnish a defense for the railway company to hide behind.

Williamson & Wells, for appellee.

The board of supervisors, having the public road worked, went out and looked at it, declared it by proper ordinance to be an obstruction to the public road and had it removed. The railroad had no right to object and it...

To continue reading

Request your trial
13 cases
  • State ex rel. Board of Police Commr. v. Beach
    • United States
    • United States State Supreme Court of Missouri
    • 15 Mayo 1930
    ...S.W. 695; Jefferson City Bridge & Transit Co. v. Blaser, 300 S.W. 778; Board of Commissioners v. State ex rel., 191 Ind. 335; Wright v. Railway Co., 101 Miss. 470; Campbell v. Younson, 114 N.W. 415; Tyson v. Washington County, 110 N.W. 634; Queens v. Atlanta, 59 Ga. 318. (4) If the question......
  • City of Clarksdale v. Harris
    • United States
    • United States State Supreme Court of Mississippi
    • 10 Junio 1940
    ......175; Carroll v. Board of Police, 28 Miss. 38;. Bearman v. Board of Police, 42 Miss. 237; Wright. v. Edwards Hotel, etc., Co., 101 Miss. 470; National. Exchange Bank v. Peters, 144 U.S. 570, 36 ......
  • Jackson Equipment & Service Co. v. Dunlop
    • United States
    • United States State Supreme Court of Mississippi
    • 8 Abril 1935
    ...... Bufkin, 117 Miss. 844, 78 So. 781; Madison County v. City of Canton, 158 So. 149. . . If the. judgments hereinbefore ... v. Grant, 9 S. & M. 90; Hinton v. Perry County,. 84 Miss. 536; Wright v. Railroad, 101 Miss. 470, 58. So. 332; Borroum v. Purdy, 131 Miss. 778, ......
  • State ex rel. Beach v. Beach
    • United States
    • United States State Supreme Court of Missouri
    • 15 Mayo 1930
    ...City Bridge & Transit Co. v. Blaser, 300 S.W. 778; Board of Commissioners v. State ex rel., 191 Ind. 335; Wright v. Railway Co., 101 Miss. 470; Campbell v. Younson, 114 N.W. 415; Tyson v. Washington County, 110 N.W. 634; Queens v. Atlanta, 59 Ga. 318. (4) If the question of the necessity, w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT