Citizens' R. Co. v. Africa
| Decision Date | 06 November 1897 |
| Citation | 42 S.W. 485,100 Tenn. 26 |
| Parties | CITIZENS' RY. CO. v. AFRICA et al. BOARD OF MAYOR, ETC., OF KNOXVILLE v. CITIZENS' RY. CO. |
| Court | Tennessee Supreme Court |
Appeal from chancery court, Knox county; H. B. Lindsay, Chancellor.
Bills for injunction by the Citizens' Railway Company against J. Simpson Africa and others and by the board of mayor and aldermen of the city of Knoxville against the Citizens' Railway Company. The cases having been consolidated, a decree was rendered in favor of the city, which decree was affirmed by the court of chancery appeals. The Citizens' Railway Company appeals. Affirmed.
Lucky Sanford & Tyson and Templeton & Cotts, for appellant.
Webb & McClung, for appellee Africa.
Washburn Bickle & Turner and J. W. Caldwell, for board of mayor and aldermen of Knoxville.
Consolidated causes, chancery court of Knox county. These causes involve the right of the Citizens' Railway Company to lay tracks and operate street-railway lines over the streets of the city of Knoxville. The contest is between that company, the city of Knoxville, and J. Simpson Africa, trustee, the representative of a rival line, and is one feature in a long and bitter litigation between these competing railway companies, in which the city has been more or less interested. There are really but two questions before us for consideration, but, as is usual in such heated controversies there is much in the record and contentions of counsel not material to the real questions involved. The original bill sought to enjoin the defendants from interfering with the Citizens' Railway Company in the construction of its tracks upon Depot street between Gay and Jacksboro, and to enjoin the transfer from defendant Africa, trustee, of certain obstructive tracks to the Knoxville Street Railway Company, and a mandatory injunction was sought to remove obstructions from Church street, Oak street, Central avenue and certain other streets named in the bill, all within the city of Knoxville. The several defendants answered the bill, denying the complainant's right to the relief sought. Afterwards the city filed its bill against the Citizens Railway Company, seeking to enjoin it from constructing its track on Depot street between Gay and Jacksboro, and afterwards filed an amended bill. The substance of the prayer of those bills is that the Citizens' Railway Company be perpetually enjoined from going upon any of the streets, or doing any work thereon, unless authorized so to do by ordinance duly passed thereafter by the board of mayor and aldermen. The Citizens' Railway Company filed its answer and cross bill, and moved to dissolve the injunction, and consolidate the causes. By consent the causes were consolidated., and an agreed statement of facts was made, depositions were filed, as well as documentary evidence, and the cause was heard by the chancellor, who substantially granted the relief prayed by the city, and refused relief to the Citizens' Railway Company, and that company appealed. The court of chancery appeals heard the cause, and affirmed the decree of the chancellor, and the Citizens' Railway Company has appealed to this court, and assigned errors.
These errors are numerous, but may be treated together as presenting the rights of the Citizens' Railway Company under its charter and the ordinances of the city of Knoxville to occupy and build its road over certain streets of the city, the contention of the city being that in the majority of the cases there is such a discrepancy and deviation between the routes laid down in the charter and those specified in the ordinance of the city as must vitiate and render null the rights of the Citizens' Railway Company; that upon other routes the charter gave that company no right, and the ordinances of the city, though attempting to grant such rights, could not do so in the absence of legislative or charter authority granted by the legislature; and, finally, that the Citizens' Railway Company had forfeited its rights by failing to build and equip its line within the time limited by the ordinances of the cities of Knoxville and North Knoxville. The contentions of the Citizens' Railway Company are that the deviations and differences in route are but slight and immaterial, and that its failure to finish its lines within the time prescribed was caused by the obstructive tactics of Africa, trustee, and the action of the city authorities, and that under the ordinances of the city the time thus lost on account of adverse proceedings and obstructive measures was not to be counted in the limit fixed for the completion of the road. This is a general statement of the question presented by the record and assignments of error, the details of which will appear more fully hereafter.
It is necessary to state briefly the history and status of the line controlled by Africa, trustee. The Knoxville Street-Railway Company was chartered January 2, 1876, under the general act of the legislature of Tennessee of 1875 relating to corporations. In its charter it is granted rights of way over many of the streets of Knoxville, specifically named, and was granted franchises generally over all streets of the city then existing or thereafter to be established. On the 5th day of July, 1893, the city passed an ordinance revoking the grant as to all streets except those already occupied. The Knoxville Street-Railway Company having passed into the hands of Africa, trustee, he claimed that his grant, under the ordinance of 1876, covered all the streets of the city, and about midnight on the 29th of September, 1895, or the morning of the 30th, laid short pieces of track at five places on streets unoccupied, to wit, at each end of the Church and each end of the Oak street bridges, and at a point on Central avenue. The city thereupon filed its bill, alleging the invalidity of the ordinances of 1876, and the want of authority to place the track as laid; but this bill was afterwards dismissed by the city. Africa, trustee, then filed a bill in the circuit court of the United States for the Eastern district of Tennessee against the Citizens' Street-Railway Company and the city, setting up his claim under the charter and ordinance of 1876, asking a construction thereof, and an injunction against tearing up his track or obstructing the building of his lines. Upon a final hearing of this case in the United States circuit court of appeals in October, 1896, that court held that the Knoxville Street-Railway Company and Africa, trustee, had a valid right of way only upon certain streets authorized by the charter and ordinances, and on which the right of way was definitely located, and not over all the streets of Knoxville then laid out or thereafter to be established. City of Knoxville v. Africa, 23 C. C. A. 252, 77 F. 501.
The Citizens' Railway Company obtained its charter in August, 1895, under the general incorporation act of 1875, and in pursuance of its charter provisions applied to the city of Knoxville for street franchises, and the city, on August 20, 1895, by ordinance, granted a franchise, under which it began the construction of its line. On the night of September 29, 1895, as before stated, the manager of Africa's line laid several short pieces of track on different streets, among others on Central avenue, where it crosses Broad street, and both north and south or that street. These were obstructions to the building of tracks by the Citizens' Railway Company, and were so intended, and a bill was filed enjoining it from removing these tracks. This injunction was maintained until October, 1896, when it was dissolved, and the final decree already referred to was entered in the United States circuit court, declaring these tracks unlawful obstructions. In the meantime, on the 25th of November, 1895, the city passed an amended ordinance granting to the Citizens' Railway Company the right to occupy additional routes as follows: (1) Beginning at the corner of Park and Gay streets, thence west along Park street to Broad, thence south on Broad to Depot, thence northwardly on Depot to Jacksboro to the north corporation line of Knoxville; also beginning at the intersection of Broad and Depot, thence east on Depot to Gay, and to the connection with the line of the Rapid Transit Company on Gay street. (2) Beginning at the corner of Luttrell and Park streets, thence north on Luttrell to the north corporation line of Knoxville. (3) Beginning at the corner of Luttrell street and Fourth avenue, thence west to Central avenue, thence west on south side of Central Market to North Gay street, thence on North Gay street south to William street, thence on William street south to Park street. The ordinance thus amended further provided that all the rights and privileges therein granted should become null and void unless the company by the 1st of January, 1896, should build its tracks from the corner of Gay and Depot streets, or from the corner of Park and Gay to the north corporation line of North Knoxville, and put its line in operation by April 1, 1896, adding, "Delays caused by legal or providential interference or other unavoidable causes to be excepted from said time." Then follow specific directions as to how the track should be laid on the streets, and giving the right to dig them up and lay tracks until January 1, 1896.
On the 24th September, 1895, the city of North Knoxville gave the Citizens' Railway Company the right to construct a line upon Central avenue from the corporation line between the cities of Knoxville and North Knoxville to the north line of the corporation of North Knoxville, but to be null and void unless work should be begun within 30 days, and the line be constructed before December 1, 1895, so that cars would be operated...
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