Baines v. Marshfield & Suburban R. Co.

• Decision Date: 25 June 1912
• Citation: 124 P. 672,62 Or. 510
• Parties: BAINES v. MARSHFIELD & SUBURBAN R. CO.
• Court: Oregon Supreme Court

124 P. 672

62 Or. 510

BAINES v. MARSHFIELD & SUBURBAN R. CO.

Supreme Court of Oregon

June 25, 1912

Appeal from Circuit Court, Coos County; J.W. Hamilton, Judge.

Action by James Baines against Marshfield & Suburban Railroad Company. Decree for plaintiff, and defendant appeals. Affirmed.

John D. Goss, of Marshfield, for appellant.

W.U Douglas, of Marshfield, for respondent.

MOORE J.

This is an appeal by the defendant, the Marshfield & Suburban Railroad Company, a corporation, from a decree enjoining it from operating cars on a public highway. The charter of Marshfield empowers the common council of that city as follows: "To regulate the use of the streets *** for *** street railways." Special Laws Or. 1905, p. 214, § 28 subd. 23. "To permit, subject to the restrictions in this act contained, and regulate the laying down and maintaining of tracks for street cars and other railroads and the operating of railways, locomotives, motors, and cars thereon." Id. subd. 27. The limitation thus referred to reads as follows: "No franchise or right of way can or shall be granted by the city council to any person or corporation for using the streets or public highways of the city of Marshfield for the purpose of conducting, operating, or maintaining thereon any street railway, electric motor or horse-car line, or other railway, except upon the petition of the owners of three-fourths of the property adjacent to and abutting upon any street, alley, or public highway through or upon which such right of way or franchise is proposed to be granted." Id. § 121. Pursuant to a petition, purporting to have been signed by the requisite number of such owners, Ordinance No. 266 was enacted March 26, 1907, by the common council of Marshfield, granting to C.A. Smith, his heirs and assigns, the right to construct and maintain on certain streets of that city a narrow-gauge railway and to operate thereon cars for the transportation of lumber and other freight only, which vehicles were to be propelled "only by means of horse, or overhead or underground electrical power." All tracks to be constructed were not to exceed 30 inches in width, and the rails to be used were to be of such pattern, weight, and material, and placed on the streets designated at such places, as the common council might prescribe. If within 12 months from the passage of the ordinance Smith or his assigns should construct and operate on the west bank of Isthmus Slough at or near Marshfield a sawmill, the enactment should be in force and remain operative as long as lumber was manufactured at that place. It was provided, however, that a failure to operate the mill temporarily by reason of strikes or other unavoidable casualties should not forfeit the privilege so conferred. Within the time limited Smith and his assigns constructed at the place designated a sawmill. In order to transport the output of the mill to a suitable shipping point there was constructed, pursuant to and in conformity with the ordinance, a railroad along Sheridan street, one of the highways specified, a distance of about 4,600 feet. This street, like others immediately east and west thereof, is laid out 80 feet in width across a marsh, the surface of which is occasionally overflowed at high tides. An elevated roadway 24 feet wide, and about 4 feet high, has been built along the middle of Sheridan street the distance mentioned. On the outer sides of the upper part of the raised way are short posts, on the top of which have been nailed a continuous railing and a wheel guard, except at street crossings and at openings where approaches to buildings have been made. The railroad authorized by the ordinance was built on the west side of the roadway, by spiking T-rails to the planks forming the decking, leaving, however, a space of 40 inches between the outer rail and the wheel guard. Bevelededged planks, the thickness of which equals the height of the iron, have been nailed to the decking on the outside of it, but joining the rails, between which planks of the same thickness have been placed at street intersections and at approaches to buildings.

The right to the franchise granted to Smith has been duly assigned to the Marshfield & Suburban Railroad Company, which corporation operates on the railway mentioned cars used in transporting lumber and slab wood that has been cut into stove lengths. The cars employed for the latter purpose have racks into which the wood is thrown. The other vehicles used are open flat cars, and all are propelled by horses or mules. Cars loaded with wood have been allowed to stand on the tracks until the fuel was removed by persons to whom it was thus delivered, and cars loaded with lumber have been permitted to remain on the railway, between street intersections, until suitable opportunity was afforded to...