City of Detroit v. Ft. Wayne & E. Ry. Co.

• Citation: 51 N.W. 688,90 Mich. 646
• Parties: CITY OF DETROIT v. FT. WAYNE & E. RY. CO.
• Decision Date: 18 March 1892
• Court: Supreme Court of Michigan

51 N.W. 688

90 Mich. 646

CITY OF DETROIT v. FT. WAYNE & E. RY. CO.

Supreme Court of Michigan

March 18, 1892

Mandamus, on the relation of the city of Detroit, to the Fort Wayne & Elmwood Railway Company, to compel respondent to make alterations in its tracks. Writ granted.

John J. Speed, for relator. Edwin F Conely, for respondent.

MCGRATH J.

This is an application for mandamus to compel respondent, a street-railway company, to observe the order of the common council of the city of Detroit as to the removal of the projecting ends of the ties upon which its tracks are laid on Champlain street, between Rivard and Randolph streets.

The petition sets forth that it has let a contract for the repavement of Champlain street, said pavement to rest upon a concrete foundation. That the tracks of said railway are laid upon wooden ties, which extend a distance of three and one-half inches into the street on each side beyond the line of its tracks. That upon these ties are placed stringers about eight inches square. That the stringers are kept in place by iron brackets, which are placed outside of the stringers, and fastened to both tie and stringer. That the ties are laid upon sand and are tamped with sand and gravel. That the other street railways in said city (except the road on Fort street east, which is a new road) construct their railways with a bracket which extends outside of the stringer only one inch, and the tie is cut off so it does not extend beyond the stringer more than that distance. The bracket of the Ft. Wayne & Elmwood Railway Company extends outside of the stringer a distance of about three inches. On the Fort Street East Railway, owned and operated by respondent, the bracket does not extend outside the stringer at all, and the stringers are tied together by an iron rod and this is an appropriate and suitable method of construction, and one which is essential where concrete is used as a foundation for pavement. That, if the construction adopted by the Ft. Wayne & Elmwood Railway is maintained, the water passing through the cobble-stone pavement which is laid between the rails will pass down and settle under the ties, making the foundation soft, and the constant vibration of the ties and stringers caused by the cars passing over the rails will break the bond of the concrete, which is laid around and over the projecting ties, and injure or destroy the pavement above and about it. That at a session of the common council held on the 24th of November, 1891, said council adopted a resolution as follows: "Resolved, that the Fort Wayne & Elmwood Street-Railway Company be, and they are hereby, directed to cause to be removed so much of the railway ties of their railroad on Champlain street, between Randolph and Rivard street, as are outside of the stringers on which their rails are placed, in order that the street may be paved with a concrete foundation; it being the judgment of this council and the board of public works that, if the ties are not removed, the passage of the cars will, by their vibration, injure the concrete. The city clerk will transmit a copy of this resolution to the Ft. Wayne & Elmwood Street-Railway Company." That the respondent, through its attorney, in a communication addressed to the common council, declined to comply with the direction of the council.

The respondent sets up that, in pursuance and under the authority of the ordinances set forth, the respondent constructed, in the summer of 1890, the portion of its street railway on Champlain street, between Randolph street and Mt. Elliott avenue, under the supervision of and in the manner approved by the then board of public works of the city of Detroit, and in every respect in full compliance with the terms and conditions and agreements of the ordinances above mentioned. That, during the year 1891, the common council directed the repaving of Champlain street from Randolph street to Rivard street with brick, on a sort of concrete foundation, similar to the pavement on Griswold street in front of the United States post-office, and at the crossing of the respondent's street railway on said street. During the same year the common council directed the paving of Champlain street from Elmwood avenue to Mt. Elliott avenue with like pavement. In preparing for such paving and repaving, the board of public works fixed a grade on Champlain street whereby the street was raised in some places, and lowered in others, thereby necessitating a change in the existing grade of the respondent's street railway. Thereupon the respondent was notified by the board of public works to change the grade of its street railway so as to conform to the grade established by said board. The respondent, in compliance with the demand of said board, proceeded to change the grade of its street railway on Champlain street, and on the portion to be repaved has all of the grade changed as and so far as ordered. In order to have a suitable and secure foundation, it is absolutely necessary that the stringers should be held firmly in place, without the possibility of spreading and with the least possibility of vibration. To accomplish this result or end, the stringer rests in strong iron brackets securely fastened to the ties below, thus making a solid foundation. The stability and solidity of the road depends almost, if not wholly, upon the strength and security with which the bracket is fastened to the tie below, and in practical experience it has been found necessary to have the end of the tie project beyond the outside of the stringer on which the rail is fastened sufficiently to admit of the fastening of the bracket to the tie by means of a spike driven through the outside foot of the bracket; that other forms of brackets are in use in the city of Detroit; that its form of bracket is of an approved pattern on horse railways; that it is an essential part of the foundation, and, if the respondent is required to make the change demanded, it may be compelled to change the foundation of its street railway throughout the entire length, thereby subjecting it to great unnecessary expense and great inconvenience, if not irreparable loss and damage in weakening the foundation of its railway, as the stringers cannot be properly braced in the manner above described, or by an equivalent bracket. The feet of the bracket are its lateral support, and are about nine inches below the surface, thus giving ample room for paving over them. The ends of the ties project beyond the toe of the bracket from two to four inches. The ties on the portion of the street railway in...