City of Canton v. Canton Cotton Warehouse Co.

• Decision Date: 28 March 1904
• Citation: 84 Miss. 268,36 So. 266
• Court: Mississippi Supreme Court
• Parties: CITY OF CANTON v. CANTON COTTON WAREHOUSE COMPANY ET AL

36 So. 266

84 Miss. 268

CITY OF CANTON v. CANTON COTTON WAREHOUSE COMPANY ET AL

Supreme Court of Mississippi

March 28, 1904

FROM the chancery court of Madison county. HON. HENRY C. CONN Chancellor.

The city of Canton, appellant, was complainant in the court below' the Canton Cotton Warehouse Company and the Illinois Central Railroad Company, appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Decree affirmed.

Green &amp Green, for appellant.

1. The city of Canton by sec. 5, Acts 1836, p. 319, acquired police power by the words "may make all such by-laws for the good government of said towns respectively as they may deem expedient, over the streets in controversy." Richmond R. Co. v. Richmond, 96 U.S. 521; 9 Rose's Notes, 473; 1 Dillon, Mun. Corp., secs. 393-396; Pittsburg Co. v. Hood, 94 F. 621; State v Inhabitants, 11 L. R. A., 410.

2. Where country roads become city streets they pass under the jurisdiction of the city. Elliot, Roads and Streets (ed 1900), sec. 414. "Street, therefore, includes the surface and so much of the depth as may not unfairly be used as streets are used." Ib., sec. 17; 2 Dillon, Mun Corp., sec. 697.

3. The regulation and control of streets are governmental functions and include practically unlimited power appropriate or incidental to the beneficial use of streets by the public. 2 Dillon, Mun. Corp., sec. 688; Elliot on Roads and Streets, sec. 408.

4. Streets cannot be diverted to private use; express legislation is required to grant their use to a railroad company. Ib., secs. 407, 408, and 801; Mayor v. Bath, 7 Am. & Eng. R. Cas. (N. J.), 624; 2 Smith's Mod. L. Mun. Corp., secs. 1307, 1309; Charlottesville v. So. Ry. Co., 16 Am. & Eng. R. Cas. (N. J.), 604; 3 Elliot on Railroads, secs. 1076, 1081, 1802.

5. A water company has no power to dig in streets except by legislative authority. The laying of pipes in the street is a franchise existent only by legislative grant, or municipal grant under legislative authority. Wheat v. Alexandria, 88 Va. 742; State ex rel v. Portage Water Co., 107 Wis. 441 (61 L. R. A., 77).

6. All franchises granted are subject to municipal police power. 2 Smith, Mod. L. Mun. Corp., sec. 1707.

7. The city is liable for injuries from excavations in streets by whomsoever made. 2 Smith, Mod. L. Mun. Corp., sec. 1310.

8. The Illinois Central Railroad Company is a foreign corporation, operating the railroad across these streets as lessee of the Chicago, St. Louis & New Orleans Railroad Company, a domestic corporation, under a lease for four hundred years, made in 1882.

(1) No connection is shown between Illinois Central Railroad Company and the charters of the Canton & Jackson Railroad Company and Mississippi Railroad Company, and their charters, and the deed by Fulton, in 1839, to Mississippi Railroad Company of a right of way over his forty-five acre tract of land "to the Livingston Road" do not evidence a grant to the Illinois Central Railroad Company or to its lessor.

(2) If the charter of the Canton & Jackson Railroad Company availed, its calls are from Jackson to Canton, which do not mean through and across Canton. Authority to construct from one point to another carries by implication the right to cross intervening highways (3 Elliot on Railroads, sec. 1101), but not to cross streets in the terminal named, Ib.; secs. 1101, 1076, 1081; N. E. R. R. Co. v. Payne, 8 Rich., 177; Daly v. Georgia R. R. Co., 12 Am. St. Rep., 291, 292; Inhabitants v. Conn. R. Co., 6 Cush. (Mass.), 63; Dist. Columbia v. B. & O. R. R. Co., 114 U.S. 461.

(3) A grant to run through a town is construed most favorably to the public. St. L. R. R. Co. v. Haller, 82 Ill. 209. And one to occupy a street gives only a right of passage of such width as is necessary for construction and operation of its road. Elliot on Roads and Streets, sec. 801; 2 Dillon, sec. 720.

(4) The public easement in a highway cannot be defeated by adverse or non user. Domestic Tel. Co. v. Newark, 49 N. J. L., 346; Ralston v. Weston, 46 W.Va. 550; Atchison Ry. Co. v. Gen. Elec. Ry., 112 F. 689.

(5) A grant "to operate and maintain the railroad upon Choctaw street" did not confer the right to erect and maintain water stations or hydrants on or in the street. Chicago Ry. Co. v. M. E. Church, 102 F. 89.

9. The averment of the bill that the only right of way acquired over the streets was by acquiesence of the city in the user is not denied by the answer. An easement arising from user can be no broader than the actual use and possession. The use for one track would not extend to others. 2 Elliot on Railroads, sec. 401. Nor could the right to lay water mains be implied from acquiescence in the use for tracks.

10. A railroad company cannot acquire title at common law by dedication, as such dedication can be only for public use, and the property of a railroad company, though acquired for public use by eminent domain proceedings, is private property. So. Ry. Co. v. Standifer, 20 Am. & Eng. R. R. Cas. (N. J.), 154 (s.c., 20 Ib., note, pp. 156, 157).

"Municipalities have no power to grant a franchise for the construction of a railroad on public streets for private use only." Ib., 621. Nor can a right of way for a track for private use be condemned, Ib., 620. See cases Ib., 618-621.

11. The contract was a sale and delivery of water by the warehouse company for profit to the railroad company. The pipes to be laid belonged to the warehouse company, and they were to be laid by the railroad company on its right of way and across the streets so as to be conduits for delivering the water across the streets into the tank of the railroad company. The use of the pipes across the streets was to be by a private corporation for its private business. The railroad company was to exercise its franchise in opening the streets and laying the pipes, and then its functions ceased. The pipes were to be used or operated for delivery of the water across the streets under the franchise of the warehouse company. Having no franchise to lay its own pipes in the streets the warehouse company for interposition acquires substantially the right denied it by the city and the law. The nuisance is continuous. It is a fraud on the police power of the city. At best, it is like the railroad company laying a track across the streets under its franchise to cross the streets for the exclusive private use and profit of the warehouse company, and to be operated by the warehouse company under its franchise. Hoenig v. Chicago Ry. Co., 27 Neb. 699, holds: "In other words, that as it cannot perform any of the acts named, therefore it cannot avail itself of the services of another corporation to accomplish this result."

12. Whatever may be the franchise of Chicago, St. Louis & New Orleans Railroad Company, the lessor domestic corporation, to lay this pipe, no such franchise exists in Illinois Central Railroad Company under its lease and the constitution of this state.

(1) Being a non-resident corporation it cannot exercise any franchise under the laws of this state, not enjoyed in 1890, without, under constitution, sec. 97, subjecting itself to sec. 179, and becoming a local corporation. The power to be exercised is that of Chicago, St. Louis & New Orleans Railroad Company, under the laws of this state to lay these pipes, and which was not exercised nor sought to be exercised by the lessor corporation, but now for the first time exercised by this foreign corporation. Under sec. 197 a foreign corporation cannot be authorized "to build, operate or lease any railroad in this state;" and no grant of any right or privilege and no exemption from any burden shall be made except upon condition of becoming a local corporation. This section was aimed at the Illinois Central Railroad Company, sec. 190, that the police powers shall not be "so construed as to permit corporations to conduct their business in such manner as to infringe upon . . . the general well-being of the state." The lease does not assign the corporate franchise or that of eminent domain, but only the property and the franchise to take tolls. The lessor continues to be a "going concern," and the $ 400,000 rent is applied to pay 4 per cent dividends on its stock. Its officers are elected annually, and $ 5,000 per annum is set apart for salaries and expenses. There is no assignment of after acquired property. The lessor is to pay for all advances for improvements beyond those covenanted for with 5 per cent interest. The lessor is to exercise its franchises upon request in aid of the lease. There is no power granted to exercise the franchise of eminent domain, or to lay new lines of tracks, or to create new servitudes on the streets of Canton or elsewhere. Under this lease the lessor domestic corporation must exercise the right of eminent domain or of placing additional servitudes. 23 Am. & Eng. Ency. Law (2d ed.), 784; Detriche v. L. & N. R. R. Co., 13 Neb. 361; Gottschalk v. same, 14 Ib., 389; Scott v. State, 22 Ib., 628; Koenig v. C. R. & Q. R. Co., 27 Ib., 699.

12. Upon refusal of Foot to testify before the master and for the adjudged contempt, under code § 1745, the answers should have been taken off the files. Walker v. Walker, 82 N.Y. 264; Peel v. Peel, 50 Ia. 521; Pickett v. Ferguson, 45 Ark. 191; Gant v. Gant, 10 Hamp., 465; Hull v. Hull, 77 Miss. 744. The rule in Hovey v. Elliot, 167 U.S. 409, is not consonant with our jurisprudence, code §§ 923, 1745, nor with the reason of the punishment for contempt. One who defies the authority of the court should not, while in contempt, be vouchsafed its protection against his own misconduct.

Mayes &amp Harris, J. M. Dickinson, A. K. Foote,...