Chicago, Rock Island & Pacific Railway Company v. City of Lincoln

• Decision Date: 05 January 1910
• Docket Number: 15,896
• Citation: 124 N.W. 142,85 Neb. 733
• Parties: CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT, v. CITY OF LINCOLN ET AL., APPELLEES
• Court: Nebraska Supreme Court

124 N.W. 142

85 Neb. 733

CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, APPELLANT, v. CITY OF LINCOLN ET AL., APPELLEES

No. 15,896

Supreme Court of Nebraska

January 5, 1910

APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Affirmed as modified.

AFFIRMED AS MODIFIED.

M. A Low, E. P. Holmes and G. L. De Lacy, for appellant.

J. M Stewart, T. F. A. Williams, C. E. Flansburg and L. A. Flansburg, contra.

OPINION

BARNES, J.

This action was commenced in the district court for Lancaster county to restrain the mayor and council of the city of Lincoln from passing an ordinance requiring the plaintiff to construct, equip and maintain viaducts on P and J streets in said city over and across its railroad track where it crosses said streets. The petition assigns many reasons for the interposition of a court of equity, and, if the allegations contained therein are true, it is possible that at the proper time plaintiff may be entitled to the relief sought, but that question, however, is not determined in this action, and upon that point we express no opinion. Answer was filed by the defendants, challenging the truth of some of the averments of the petition, and admitting others. A reply was filed by the plaintiff, and upon the issues joined there was a trial; judgment was rendered for the defendants dismissing the action, and the plaintiff has appealed.

It appears from the record that the district court found generally for the defendants, and so we are unable to ascertain upon what point the decision turned. It appears, without dispute, that at a general election held in the city of Lincoln on the 7th day of May, 1907, there was submitted to the voters the question: "Shall the mayor and council of the city of Lincoln have the power and authority to order, direct and require the Chicago, Rock Island & Pacific Railway Company to construct complete, ready for travel, a viaduct on P street over and across the tracks of said company, together with approaches thereto, and to keep and maintain the same in repair and safe for public travel?" It also appears that at the same time the following question was submitted to the vote of the people: "Shall the mayor and council of the city of Lincoln have the power and authority to order, direct and require the Chicago, Rock Island & Pacific Railway Company to construct and complete, ready for travel, a viaduct on J street at and near the intersection of Twenty-fourth and J streets over and across the tracks of said company, together with approaches thereto, and to keep and maintain the same in repair and safe for public travel." It further appears that the propositions above quoted were adopted or carried by a majority of the votes cast at said election.

It is alleged in plaintiff's petition that the defendants, the mayor and council of the city of Lincoln, threaten to and will introduce and pass an ordinance in pursuance of the authority thus granted them requiring the plaintiff to construct and maintain such viaducts, unless restrained by the...