Carolina Cent. R. Co. v. Wilmington Street Ry. Co.
| Decision Date | 16 March 1897 |
| Parties | CAROLINA CENT. R. CO. v. WILMINGTON ST. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; Starbuck, Judge.
Action by the Carolina Central Railroad Company against the Wilmington Street-Railway Company and another for injunction. From a judgment sustaining the demurrer of the defendant street-railway company to the complaint, plaintiff appeals. Reversed.
Iredell Meares, for appellant.
John D Bellamy, for appellee.
Upon entering the city of Wilmington, the plaintiff company before it could lay its track across Fourth street, at a point then within the city limits, was compelled to cut through a considerable embankment, thereby necessitating the building of a bridge over the cut in order that travel and transportation should not be obstructed or delayed over the street. The territory within the city limits and contiguous to the bridge has never been built up, nor have streets been actually laid off there. The highway which at the bridge is called Fourth street was the old public road leading out from the city before the city limits were extended. The bridge when it was built, was, and is now, sufficient for the ordinary purposes of travel by foot and horse and vehicle transportation. The defendant railway company has commenced to run street cars over the bridge, and has determined to run them in sections of from two to four cars at a time. The defendant company refuses to unite with the plaintiff in the maintenance of the bridge in order to meet, as the plaintiff contended, the larger servitudes imposed upon it by the defendant company's cars, and to provide the necessary conveniences at the intersection as required of them by subsection 6, § 1957, of the Code. The plaintiff alleges further in the complaint: "That if the said defendant street-railway company is allowed to operate its cars over the said bridge, that there is great danger of the same giving way, and accidents being thereby caused; and, in the event of such accidents, the plaintiff may be involved in vexatious litigation and actions for alleged damages, to its loss and injury, by reason of the fact that the said bridge is inadequate to support the running of the heavy cars defendant street-railway company propose to run and operate over said bridge." The complaint concludes with a prayer for judgment that the defendant company be enjoined from carrying out its proposed action. A demurrer was filed, and the ground assigned is that the complaint shows that the plaintiff company laid its track, dug the cut, and built the bridge across Fourth street after the limits of the city had been extended beyond the bridge, and that neither the proposed action of the defendant company nor its action in the past imposes, or will impose, any additional servitude upon the bridge, or upon the street of which said bridge forms a part; and that, therefore, no cause of action is set out in the complaint of the plaintiff. The demurrer was sustained.
The demurrer raises the question whether or not the running of street cars by an incorporated street-railway company over a bridge already...
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