Boyce v. City of Gastonia

• Decision Date: 26 February 1947
• Docket Number: 522
• Citation: 41 S.E.2d 355,227 N.C. 139
• Parties: BOYCE v. CITY OF GASTONIA et al.
• Court: North Carolina Supreme Court

41 S.E.2d 355

227 N.C. 139

BOYCE v. CITY OF GASTONIA et al.

No. 522

Supreme Court of North Carolina

February 26, 1947

Civil action to enjoin defendant city from spending public funds derived from taxation or other sources in carrying out and performing its part of a contract with defendant Railway Company, whereby in consideration of said Railway Company agreeing to surrender and abandon its franchise right to continue to operate electric trains and cars, along Franklin Avenue in said city, and to the removal of its tracks and facilities from said Avenue, the city has agreed to acquire and transfer to the railway company a part of an alternate right of way so as to enable the Railway Company to reach its present freight station and terminal facilities in said city without operating along said avenue--entered into in connection with the city's undertaking to widen and improve Franklin Avenue.

When the cause came on for hearing in Superior Court, all the parties waived a jury trial, and agreed that the court should find the facts, and determine the case on its merits. After hearing the pleadings and affidavits, and argument of counsel for plaintiff and for defendants, and upon facts admitted in the pleadings, the court finds facts pertinent to questions involved on this appeal, substantially as follows:

1. On 10 September, 1908, the Mayor and Board of Aldermen of the city of Gastenia, by ordinance and resolution duly adopted granted unto W. S. Lee and L. C. Harrison, their successors lessees and assigns a franchise and right 'to own construct, equip, maintain and operate a line or lines of street railway, run by electricity or other motive power' for the transportation of passengers and freight, with incidental rights, all as specifically set forth therein, upon certain conditions and provisos, among others:

'(D) Said W. S. Lee and L. C. Harrison, their heirs, lessees, and assigns, shall be liable to compensate the said city of Gastonia against, and save it harmless from, all damages, or loss that said city may suffer on account of anything that shall grow out of the construction or operation of said railway * * *

'(G) That this ordinance shall take effect from and after its acceptance by the said W. S. Lee and L. C. Harrison, which acceptance shall be filed with the Clerk of said city of Gastonia.'

The said franchise, through assignments, has been duly transferred to, and is now owned by the defendant Railway Company,--a common carrier of freight and passengers.

2. Defendant, Railway Company, acting under and pursuant to said franchise, has invested large amounts of money in constructing railway tracks, an overhead trolley system, and other necessary and appropriate appliances and facilities along Franklin Avenue in the city of Gastonia for a distance of approximately three miles, and in constructing sidetracks from its tracks on said avenue to numerous industries located adjacent thereto, and for many years has conducted and carried on a freight and passenger service over its tracks located on said avenue, and sidetracks leading therefrom, and derived, and is now deriving substantial revenues from such business.

3. At the time said franchise was granted by the city of Gastonia to W. S. Lee and L. C. Harrison, and at the time the tracks and other facilities of defendant Railway Company were constructed over and along Franklin Avenue, there was very little vehicular and other traffic over said avenue as compared with the traffic thereover in recent years and at the present time. And for some years after the construction of said tracks, travel over the avenue by the general public was not materially interfered with by reason of the operation of cars and trains of said railway company over and along said avenue; but in recent years Franklin Avenue has become and is now one of the busiest streets in the city of Gastonia and one of the busiest highways in the State, with almost constant stream of vehicular and other traveling traffic at all hours of the day and part of the night, by members of the public.

4. The city of Gastonia has duly undertaken the project of widening, re-surfacing and improving said Franklin Avenue; and in order to improve same so as properly and adequately to provide for the use thereof by the general public, including the general public of the city, in traveling over and along said Avenue, it is necessary and essential that the tracks and other facilities of defendant Railway Company be removed therefrom, and that said railway company surrender and abandon its right to continue to operate over and along said avenue for the remainder of the term of its franchise.

5. In connection with the project, and for the purpose of widening, and improving said Franklin Avenue, the North Carolina State Highway and Public Works Commission has agreed to appropriate to the city $750,000 upon the condition that the tracks and other facilities of defendant Railway Company be removed therefrom, and that said railway company surrender and abandon its right to continue to operate its trains and cars over and along said Avenue for the remainder of the term of its franchise, in order thereby to eliminate the highway hazards incident to such operation.

6. On 14 October, 1946, the defendant City entered into a contract with the defendant Railway Company by which in consideration of the city acquiring and vesting in the railway company, its successors and assigns, title to new rights of way 'at least twenty (20) feet in width, together with such additional width as may, in the judgment of the Railway Company, be required for cuts and fills, and shall be located approximately as shown on the blueprint' attached thereto, for the relocation of the railway company's line of railway so as to enable it to reach its present freight station and terminal facilities in said city without having to operate along Franklin Avenue, all as set forth therein, the railway company will construct its line of railway along said new right of way, and upon its completion, as therein set forth, will abandon all operations along Franklin Avenue. except crossing switch tracks for purpose of serving industries, and, with consent and approval of such State and Federal agencies as are required, will permit the city to remove as a part of the improvement of Franklin Avenue the tracks and other equipment of the railway company now located along said Avenue--the tracks and equipment so removed to be turned over and delivered to the railway company.

7. The removal of the railway company's tracks and facilities from Franklin Avenue and the surrender and abandonment of its right to operate over and along said avenue are necessary and essential parts of the city's project to widen and improve said avenue. And the funds to be expended by the city, under said contract of 14 October, 1946,...