City of Burlington v. Burlington Traction Co

• Decision Date: 28 May 1924
• Citation: 124 A. 857,98 Vt. 24
• Parties: CITY OF BURLINGTON v. BURLINGTON TRACTION CO
• Court: Vermont Supreme Court

124 A. 857

98 Vt. 24

CITY OF BURLINGTON v. BURLINGTON TRACTION CO

Supreme Court of Vermont

May 28, 1924

Special Term at Burlington, December, 1923.

PETITION for writ of mandamus, preferred to the Supreme Court for Chittenden County, at its October Term, 1923, and heard on petition, answer, and depositions at a Special Term at Burlington in December, 1923. Writ granted.

Let a writ of mandamus issue accordingly.

Hamilton S. Peck and Warren R. Austin for the petitioner.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

BUTLER

This is a petition for mandamus, in which the relator seeks to compel the respondent to perform certain alleged public duties specified in certain agreements with the city in respect to the use and occupation of the streets by its railroad. The respondent was organized under its charter, No. 226, Acts of 1872, under the name and style of the Winooski and Burlington Horse Railroad Company. By No. 222, Acts of 1896, the name of the company was changed to the Burlington Traction Company. By the former act, it was authorized to lay and use the tracks of its railroad, operate with horse power through the streets of the city of Burlington, through the village of Winooski, town of South Burlington, and other places, upon such terms as the city council of the city of Burlington, the trustees of the village of Winooski, and the selectmen of South Burlington within their respective limits, might agree with the directors of the company, with the further provision, in case they could not agree, either party might petition the county court of Chittenden county to appoint commissioners to fix the terms.

Under the authority so granted, an agreement was entered into in the form of a resolution adopted by the city council, September 21, 1885, and accepted by the company. Among other things it was agreed that the company "shall be required to maintain its own travel, that is, shall build their own roadway" in the track area, and "keep it in as good condition at least, as the streets are kept at all points," and should in general maintain its roadbed at the same grade as the adjacent streets should be, from time to time, established by the city council.

That it should not allow its rails to rise more than one-half inch above the roadbed or track along side of it so that vehicles could readily pass from side to side, and that when defects in the roadbed should be discovered, it should at once put it in order speedily, and failing to do so the street committee or superintendent should do the same at the expense of the company. By "track area" is meant that portion of the road between the rails and a space of two feet outside the rails of the track.

Under this agreement, the Horse Railroad Company constructed its tracks on various streets, including Church Street between Main and Pearl Streets (except a portion not material here), and in that portion of Pearl Street from its intersection with Church Street to its intersection with the easterly limit of North and South Winooski Avenue, and has occupied and used said streets from thence, hitherto.

In 1886 the respondent was granted authority by the Legislature to operate branch lines in the city, and in 1888 was granted the right to use other power, excepting steam, and thereupon the company applied to the city council to make the changes contemplated. On June 3, 1893, a new agreement was entered into in the form of a resolution adopted by the city council and accepted by the company, which, besides providing for the location of poles and wires and the location and gauge of tracks, the change of motive power to electricity, and restoring the streets and walks wherever disturbed by the company in its construction or repairs of its railroad, contained the following provisions, material here, of which we state the substance:

The provisions of the resolution of 1885 were confirmed and made a part of the new agreement except so far as they were "repugnant to this agreement or its provisions."

The company was required to grade the surface of its roadbed flush with the top of the rails on the outside of the track and not more than one inch below the top of the rail on the inside of the track "with the same material as is used on that portion of the street in which the track is laid"; to maintain its track flush with the established grade of the streets or with the surface of the street; and under the direction, supervision, and approval of the street commissioners at all times "to keep in permanent repair" the track area so long as it occupies the street for railroad purposes; in default of which, the board of street commissioners, after notice, "shall make such repairs at the expense of the railroad company and said company shall pay such reasonable bills for such work" as should be presented to it. It is further provided that the company should repair and keep in order any pavement which the city might lay "in the track area and relay pavement whenever the company shall remove or disturb it."

The company is given permission to use T-rails, but is required when the city should pave Church Street, to lay such rails therein "as the City Council shall direct and as shall be suitable to the paving to be used." These two agreements, will, for convenience, be termed the "franchise agreement."

On June 27, 1921, the city council, by direction of the electorate, began a plan for permanent improvements on Church and Pearl Streets because of the worn-out condition of portions of the streets and the increase of travel thereon. A resolution was adopted by the city council on September 11, 1923, a certified copy of which was given to the railroad company, calling attention to the agreements of 1885 and 1893, and giving notice to the company that it "is hereby required and ordered to maintain its own travel, that is, to build its own roadway inside the tracks on both said Pearl and Church Streets and put it into as good condition as the remainder of said streets, and to make and maintain the streets for two feet outside the rails on both sides of its road like that inside the track and to grade the surface of the roadbed flush with the top of the rails on the outside of the tracks and not more than one inch below the top of the rails on the inside of the tracks with the same material as is used on that portion of the streets in which said tracks are laid, and to establish and maintain said tracks flush with the established grade and with the surface of said streets, so that vehicles can readily pass from side to side and across the same." The resolution also required the company to put and keep "in permanent repair" that portion of said streets called the trolley area; and lay such rails on said streets as are specified in "Exhibit A," and as should be suitable to the pavement used, and "that the Burlington Traction Company shall construct the necessary foundation or support for the ties and rails and other apparatus of its railroad on said streets of such material, of such proportions, in such manner and according to such plan and workmanship as is specified in Exhibit A, all of which are adjudged by the City Council to be necessary to conform said foundation and said railroad to the construction and condition of the streets as they have been and are now being improved."

It is admitted that all of the traffic passing over every line of the respondent's railroad, including the line to Winooski, the line to Queen City Park, the line to the Lake, the line to the depot, and perhaps others, converges upon and passes over in both directions the single track on Church Street, and is very great, with an average of five or more cars every ten minutes. But it is denied that the safety and convenience of the public incident to the increased traffic or the worn out condition of the streets required the laying of reinforced cement concrete pavement on Church Street or the resetting of the brick on Pearl Street, and that the substituting of new and heavier rails and ties to support and keep in place the pavement outside the rails, as alleged by the petition, is reasonably necessary or properly required. And the respondent contends that such requirement is unnecessary and unreasonable because the city by common understanding with the company in 1898, and again in 1904, repaved Church Street, and at the same time, at the request of the city, the respondent relaid on Church and Pearl Streets suitable nine-inch grooved rails to the acceptance and entire satisfaction of the city and which are now in good condition suitable and proper for the safety and convenience of the public and will remain so for many years; that the rails demanded are wholly unsuitable for the pavement used and dangerous to the public.

As claimed by the relator, it has long been settled that when there is a grant of a public franchise which imposes certain obligations on the grantee, and such grant is accepted, a public duty is thereby imposed upon it differing from an ordinary contractual duty, and that mandamus will issue to compel its performance in a proper case. 12 R. C. L. 266; 26 Cyc. 375. But two prerequisites must exist. First, it must appear that the relator has a clear legal right to the performance of the particular duty at the hands of the respondent; second, that the law affords no other adequate remedy. Bates v. Keith, 66 Vt. 163, 28 A. 865; Town of West Rutland v. Rutland Ry. L. & P. Co., 96 Vt. 413, 121 A. 755; See Sanborn v. Weir, 95 Vt. 1, 112 A. 228.

1. The respondent says that the relator has a complete remedy through the Public Service Commission which has jurisdiction in the first instance.

2. The respondent denies that it is bound by contract or common law to pave...