Budd v. Multnomah Street Ry. Co.

• Decision Date: 15 November 1887
• Parties: BUDD v. MULTNOMAH ST. RY. CO.
• Court: Oregon Supreme Court

15 P. 654

15 Or. 404

BUDD v. MULTNOMAH ST. RY. CO.

Supreme Court of Oregon

November 15, 1887

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

H.T Bingham and McDougall & Bower, for appellant.

B Killen and J.C. Moreland, for respondent.

STRAHAN J.

This is an action to recover damages against the defendant, at the rate of $1,000 per month, from and after the twenty-third day of October, 1882, for the alleged unlawful disturbance, by the defendant, of the plaintiff, in the use and enjoyment of a certain franchise granted by the city of Portland to the plaintiff. The franchise set up in the complaint is the right and privilege to lay down and maintain an iron railroad track or tracks, and to operate street railways within the city of Portland, upon certain streets mentioned in the ordinance making the grant. The grant is made to D.E. Budd, and such other person or persons as he may associate with himself therein. The complaint alleges compliance with the terms of the ordinance on the part of Budd. The manner of such compliance is fully alleged. It is stated that on or about June 14, 1882, this plaintiff and others duly incorporated themselves under the name of the Multnomah Street Railway Company, and, as such corporation, they purchased the materials, constructed a line of street railway in accordance with the terms of said ordinance No. 3,477, and in such manner as to comply with the terms and requirements of said ordinance; *** "and thereafter they procured street-railway cars of the kind required by said ordinance and placed them upon the lines of said railway, provided horses for drawing the same, and placed the said railway and cars in complete order and condition for operating the same in the manner and subject to all the terms, restrictions, and conditions in said ordinance No. 3,477 contained and required; that the plaintiff procured the construction of said street railway, and the obtaining of said horses and purchase of said cars, as aforesaid, by the Multnomah Street Railway Company, but he never assigned the whole or any portion of said right and privilege granted to him by ordinance No. 3,477 to defendants; that plaintiff never assigned the whole or any portion of the franchise or privilege granted to him by said ordinance No. 3,477 aforesaid, nor has he even associated with him any person or persons whatever, in the use and enjoyment of the same; and ever since said June 12, 1882, he has been, and now is, the sole owner of said franchise, and of all the rights, privileges, and immunities lawfully pertaining thereto, or existing thereunder." It is then alleged, in substance, that on the twenty-third day of October, 1882, the plaintiff was the sole and exclusive owner of the right of carriage and conveyance of passengers thereon and over the same for hire in the railway cars aforesaid. Nevertheless the said defendant, the Multnomah Street Railway Company, not being the owner of said franchise and privilege, or of any interest therein, and not being associated with the plaintiff therein, but well knowing the premises, and contriving to disturb and injure the plaintiff in the peaceable and lawful enjoyment and use of his said franchise of operating said street railway, and carrying passengers thereon for hire, on the said twenty-third day of October, 1882, and continuously thereafter, ever since, to the present time, injuriously, unlawfully, and against the will of the plaintiff, has claimed the street railway and cars and horses as its own, and has possessed itself, to the entire exclusion of plaintiff, of said street railway cars and horses, and has occupied by the said railway track, cars, and horses the portions of the streets aforesaid, upon which he has the right, as against the defendants, to maintain and operate a street railway, and has thereby prevented the plaintiff from maintaining and operating a street railway thereon as he otherwise could and would have done, and has carried and conveyed divers passengers for hire, over and upon said street railway heretofore mentioned and described, and continues so to do up to the present time; and that by reason thereof the plaintiff has been deprived of divers profits and emoluments, which would otherwise have arisen and accrued to him from the enjoyment of said franchise, and has been greatly disturbed in the possession thereof, and his right and title thereto, to his damage in the sum of $1,000 per month from said twenty-third day of October, 1882. The prayer is for judgment against the defendant for the sum of $1,000 per month, from said twenty-third day of October, 1882; "and for the possession of his franchise and privilege aforesaid," and for costs, etc.

This is the second appeal in this cause. When it was formerly here, it was upon a demurrer to the complaint, and this court then reversed the ruling of the court below sustaining the demurrer, and remanded the cause for further proceedings. This court then said: "The main question presented by the demurrer was whether the appellant, when he incorporated with others under the name of the Multnomah Street Railway Company, necessarily made the company the grantee of the franchise, whether he thereby ipso facto associated with himself therein the other persons so as to entitle them to the rights and privileges granted by the ordinance. Can the allegation in the complaint that the appellant had never associated with himself any person or persons whatever in the use and enjoyment of the franchise be true, in view of the fact that he and others incorporated themselves under said name, and that the corporation purchased material and constructed and equipped the railway as required by the ordinance by which the right was granted, and that the privilege of building the road, and equipping and operating it, with the right to exact fare for transporting passengers thereon, is a positive right, and has an identity distinct from the structure and equipage of which there can be no doubt? The appellant had the option, under the ordinance, to reserve the privilege to himself exclusively, or have it vest in himself or others whom he might associate with himself therein. He could have contracted with some construction company to build and equip the road for him for a compensation to be paid therefor, and retained exclusive ownership of the franchise; or he could have associated with himself such company, and thereby admitted its members to a joint proprietorship in it. He alleges in his complaint that he adopted the former course, and whether that is true or not depended, in the opinion of this court, upon proof of facts. ***"

I have made this long extract from the opinion for the reason it has not been published, and for the further reasons that it has become the law of the case, and, so far as the facts are the same, must govern on this appeal. When the case was returned to the court below, an answer was filed by the defendant, issues of fact being duly joined. The case was tried by the court without the intervention of a jury, which trial resulted in findings and judgment for the defendant, from which judgment this appeal is taken. No exceptions were taken upon the trial to the admission of evidence, and the case is here upon the questions of law arising on the findings.

So much of the findings of fact as are necessary to a proper understanding of the legal questions discussed are as follows:

"(2) That on the tenth day of July, 1882, said D.E. Budd, W.A Scoggin, and E.J. Jeffrey entered into a mutual oral agreement, whereby it was mutually agreed and understood by each of said parties that said W.A. Scoggin and E.J Jeffrey...