Atchison v. Citizens' Traction & Power Co.

• Citation: 113 P. 813,16 N.M. 163
• Court: Supreme Court of New Mexico
• Decision Date: 04 February 1911
• Parties: ATCHISON, T. & S. F. RY. CO.v.CITIZENS' TRACTION & POWER CO.

16 N.M. 163

113 P. 813

ATCHISON, T. & S. F. RY. CO.

v.CITIZENS' TRACTION & POWER CO.

Supreme Court of the Territory of New Mexico.

Feb. 4, 1911.

Appeal from District Court, Bernalillo County; before Justice Merritt C. Mechem.

Action by the Citizens' Traction & Power Company against the Atchison, Topeka & Santa Fé Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Where a railroad company, suing to enjoin a street railroad company from crossing its tracks until the place and manner of crossing had been determined by the court, under Laws 1905, c. 97, § 13, on the intimation of the court that it had no jurisdiction, asked for 24 hours to file an amended bill, and within that time so changed its tracks at the proposed point of crossing as to destroy the usefulness of steel crossings prepared by the street railroad company, it was proper for the court to issue a mandatory injunction commanding the railroad company to restore the status quo, but the court could not enjoin it from interfering with the street railroad company in the laying of its tracks, since the latter could not cross the railroad company's track, except by agreement or on determination by the court.

See, also, 113 Pac. 810

The Atchison, Topeka & Santa Fé Railway Company is a Kansas corporation authorized to do business in New Mexico, and as the successor in interest of the New Mexico and Southern Pacific Railway Company operated a steam railroad through the city of Albuquerque, New Mexico, and for more than 20 years has operated its trains on tracks passing through the city of Albuquerque, which tracks cross the street in said city known as Tijeras Road, a public street in said city. The appellee, the Citizens' Traction & Power Company, is a New Mexico corporation organized under the laws of the territory for the purpose of operating a street railway in the city of Albuquerque, and had a franchise from the city authorizing it to construct, operate, and maintain a street railway, operated by electricity or other power which might be an improvement thereon, upon all the streets in said city not occupied by a street railway company. By virtue of said franchise, the Citizens' Traction & Power Company proceeded to lay its tracks upon and along Tijeras road, and had ordered and had especially made for the crossing of the tracks of the appellant certain steel crossings, and had notified appellant of its action. When the appellee was about to lay its tracks across those of the appellant, the appellant filed its bill in the district court asking that an injunction be issued restraining the appellee from constructing its proposed street car tracks across the appellant's tracks at said Tijeras road until the place and manner of said crossing had been determined and fixed by the district court in accordance with section 13 of chapter 97 of the Session Laws of the Thirty-Sixth Legislative Assembly of the Territory of New Mexico. A temporary writ issued, and appellee appeared and filed a demurrer and motion to dismiss, which were heard by the court, and, upon intimation by the court that the demurrer would be sustained, appellant asked 24 hours in which to file an amended bill, which request was granted. During the 24 hours allowed for filing the amended bill, appellant had changed the location of its tracks in such manner as to render useless the crossing which appellee had constructed for use in crossing the tracks of appellant. Appellee thereupon filed its bill against appellant, praying that appellant be enjoined from interfering with it in the construction of its crossing, and asked that a mandatory order be made by the court requiring the appellant to replace its tracks and switches at the crossing of Tijeras road in their former condition, and alleged that it had been required to expend $400 attorney fees and $50 in preparing maps and exhibits, and asked damages for $450. The appellant answered and appellee moved for judgment on the pleadings. The court granted the motion and entered its final decree requiring the appellant to replace its tracks and switches at the crossing of Tijeras road within 24 hours from the signing of the decree in the same manner and condition as said tracks existed on the 21st day of June, 1910, before the same were changed, and that the appellee within 48 hours after the completion of the said tracks by appellant should place its crossings across the tracks and switches of appellant. Appellant was further enjoined from interfering with the appellee in the placing of its crossing across its tracks at Tijeras road, and it was further ordered and decreed that appellant pay to the appellee $450 damages, and its costs. Appellant appealed from the order and judgment entered.

R. E. Twitchell and E. W. Dobson, for appellant. Isaac Barth and Mann & Venable, for appellee.

ROBERTS, J. (after stating the facts as above).

The main question at issue in this case has been decided adversely to the appellee in case No. 1345, Atchison, Topeka & Santa Fé Railway Company v. Citizens' Traction & Power Company (decided at the present term of this court) 113 Pac. 810. It is unnecessary to review in this case the law involved, as a reference to the case named will fully disclose the reasons for the holding. The lower court in the original action instituted by the appellant, having construed section 13 of chapter 97 of the Acts of 1905 as not applying to the crossing of the tracks of a steam railroad by the tracks of an electric railway, operating under a franchise from the city council, dissolved the injunction; or, having intimated that such would be the action of the court, it was highly improper for the appellant under the guise of desiring the time to file an amended complaint to take advantage of the appellee, and so change its tracks at the proposed point of crossing as to obviate the force and effect of the decision of the lower court. Having done so, it was perfectly proper for the court to issue a mandatory injunction commanding the appellant to restore the status quo, and, if the order had gone no further, the action of the lower court would have been proper, even under the decision of this court in the case of Atchison, Topeka & Santa Fé Railway Company v. Citizens' Traction & Power Company, No. 1345; but the court enjoined ...