Cereghino v. Oregon Short Line Railroad Co.

• Decision Date: 12 September 1903
• Docket Number: 1463
• Citation: 26 Utah 467,73 P. 634
• Parties: GIOVANNA CEREGHINO, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, and CONSOLIDATED WAGON & MACHINE COMPANY, a Corporation, Respondents
• Court: Utah Supreme Court

73 P. 634

26 Utah 467

GIOVANNA CEREGHINO, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, and CONSOLIDATED WAGON & MACHINE COMPANY, a Corporation, Respondents

No. 1463

Supreme Court of Utah

September 12, 1903

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action to obtain a permanent injunction against the defendant railroad company to prevent the construction and operation of a switch track in front of the plaintiff's premises in Salt Lake City. From a judgment in favor of the defendants the plaintiff appealed.

REVERSED.

Messrs Richards & Varian for appellant.

The city council had no delegated power to grant a franchise to burden the street of the municipality with a switch to be operated as a steam railway for the private purposes of a private corporation. While the power to authorize obstructions may be delegated to municipal corporations, the right to license or maintain a nuisance in the streets is not within the power. "Even where a city is given exclusive power over its streets, such power must be exercised for the good of the general public, and the city can not authorize obstructions in its streets for merely private purposes." Elliott, Roads and Streets (2 Ed.), sec. 653; Costello v. State (Ala.), 18 So. 420.

"A municipal corporation can not grant a right to construct a railroad in a street for private use. We suppose it to be indispensable to the validity of a direct legislative grant, that in every instance, the use should be public, for highways are held in trust for the public for public purposes and no other. This rule is clearly the legitimate sequence of the fundamental principles that private property can never be seized under the power of eminent domain, for merely private purpose, and that roads and streets are held for the public use and never for private purposes." Elliott, Roads and Streets, sec. 744; Macon v. Harris, 75 Ga. 761; Glaessner v. Anheuser-Busch Co., 100 Mo. 508, 13 S.W. 707, Mikesell v. Durkee, 34 Kan. 509, 9 P. 278; Smith v. Leavenworth, 15 Kan. 81; Sholl v. German Coal Co., 118 Ill. 427, 10 N.E. 199.

"A switch or spur track built by private parties to connect a railroad with a mill, factory or quarry, is a private use, and a switch or spur built by a railroad company to a single mill or factory, and really designed for the accommodation of such mill or factory, is generally held to be a private use. But, where the switch or spur reaches and accommodates a number of mills, quarries or other establishments, it is held a public use." 1 Lewis, Eminent Domain (2 Ed.), sec. 171, p. 439; Gustafson v. Hamm, 56 Minn. 434, 57 N.W. 1054; Pittsburg, etc., R. R. Co. v. Benwood Iron Works, 31 W.Va. 71, 8 S.E. 453-67; Kyle v. Texas N. & N. R. R. Co., 3 Tex. Civ. App. 518.

To say that, in the case at bar, private parties do not build the switch, is but sticking in the bark. The law may not be evaded by granting the franchise to a public corporation, for the purpose of working out, through it, a private benefit and use. "It is clearly contrary to public policy that a franchise granted for public purposes, should be used as a mere cover for a private enterprise." Fanning v. Osborne, 102 N.Y. 448; Commonwealth v. Frankfort, 92 Ky. 149, 17 S.W. 288; Green v. Portland, 32 Me. 431; People v. Pittsburg R. R. Co., 53 Cal. 694.

The plaintiff shows a special injury in the premises, and is entitled to maintain a suit to enjoin the railroad company. That the free and unobstructed entrance from the street to one's premises is a property right, being an easement appurtenant to the abutting realty, and that continuous infractions of such right entitles the injured party to relief in equity, is settled beyond controversy. Donovan v. Pennsylvania Co., 120 F. 219.

This is the general rule of law, as established by all of the authorities. Let us see what the law is in this State. This court has held, in accord with the trend of modern decisions, that, where a street is unreasonably obstructed by a street railway, pursuant to an ordinance attempting to grant the power, that if the obstruction is unreasonable, the grant is invalid, as being in excess of the powers of the council; and therefore sustained the remedy by injunction at the suit of an injured abutting owner. Dooly Block v. Rapid Transit Co., 9 Utah 31.

The case was much closer upon the facts than the one at bar. Plaintiff might well rest her right upon the decision in that case. But, section 3506, Revised Statutes 1898, also furnishes full authority for plaintiff's action.

P. L. Williams, Esq., Geo. H. Smith, Esq., and James H. Moyle, Esq., for respondents.

As bearing upon and supporting the proposition that appellant has a complete remedy at law, we cite the following cases: Lorie v. North Chicago City Ry. Co., 32 F. 270; Penn. Mut. Life Ins. Co. v. Heiss, 141 Ill. 45; s. c., 33 Am. St. Rep. 273; Chicago & W. Ind. Rd. Co. v. Ayers, 106 Ill. 511; Osborne v. Mo. P. Ry. Co., 147 U.S. 248; 3 Elliott on Railroads, sec. 1096.

McCARTY, J., delivered the opinion of the court. BASKIN, C. J., and BARTCH, J., concur.

OPINION

McCARTY, J.,

STATEMENT OF FACTS.

Plaintiff brought this action to procure a permanent injunction against the defendant railroad company to prevent the construction and operation of a switch track in front of her premises in Salt Lake City. A temporary restraining order was issued by the court, and, after taking evidence, the court found the issues in favor of defendants, and vacated and set aside the temporary injunction, and dismissed plaintiff's complaint.

The findings of fact, so far as material to the determination of the questions raised by this appeal, are as follows:

"(2) That the plaintiff was at the time of the institution of said action, and for a long time prior thereto had been and is still, the owner of lot eight (8) in block eleven (11), plat 'A,' Salt Lake City survey, situated in the city and county of Salt Lake, State of Utah and occupies the same, by her tenants, for residence purposes. The plaintiff has heretofore subdivided said lot 8 into four subordinate lots, and upon three of said subordinate lots, from the south of the north line of said lot 8, has erected three brick houses, all fronting upon Third West street, and towards the east; that each of said houses for a long time has been and now is occupied by a respectable tenant, paying rent for the two southerly houses twelve dollars a month each, and for the third house the sum of fifteen dollars per month; that said north house was erected by the plaintiff about twenty years ago; that the property of plaintiff, as aforesaid, is worth several thousand dollars; that said defendant Oregon Short Line Railroad Company, at the time of the filing of the complaint herein, and it and its predecessors in interest for more than thirty years prior thereto, had owned and operated, and it still owns and is operating, a main line of railroad in Third West street in said city, and passing in front of said lots of said plaintiff and of said defendant the Consolidated Wagon & Machine Company; that prior to the institution of this suit the said defendant railroad company had determined to begin and had begun the work of extending a spur track from said main line of said railroad, beginning at a point about opposite the third and southerly house owned by plaintiff, and extending thence in a southerly and westerly direction by a curved line across the westerly part of said Third West street and the west sidewalk thereof into the said lot of the defendant, the Consolidated Wagon & Machine Company, and along the northerly side of a large warehouse which the said defendant had begun to construct prior to the institution of this suit for the purpose of accommodating its wagon and machine business; that the inner rail of said proposed spur track or switch will enter upon said sidewalk at a point about fifteen feet from the northeast corner of plaintiff's said lot; that the sidewalk along the west side of said street is about twelve feet in width, and the street between Seventh and Eighth South streets, including the sidewalks, is one hundred and thirty-two feet in width, and the said main line of railway of the defendant railroad company is located about five feet west of the center line of said street.

"(3) That the said defendant railroad company has already in operation a switch track connecting with its said main line on Third West street, opposite the southerly side line of the plaintiff's said lot, and running thence in a southwesterly direction, passing near the southeast corner of said block 11, and there entering upon the west sidewalk of said street and running thence across Eighth South street and crossing diagonally the line of said sidewalk on the westerly side of said Third West street and into the northeast corner of the block lying immediately south of said block 11 to a brickyard plant, the same being a private business; that said switch track has been and now is being operated by said railroad company; that said railroad company has another switch track connecting with its said main line on Third West street running in a southeasterly direction from the east side thereof across the easterly portion of said street and the east sidewalk thereof into the block on the east side of said street to a business plant, which said track has heretofore been and now is operated; that said railroad company has another switch track connecting with its said main line on said Third West street on the west side thereof, beginning at a point about fifteen rods north of the plaintiff's said lot, and running in a northwesterly direction to or near the edge of the sidewalk opposite the northeast corner of said block 11,...