City of Dubuque v. Dubuque Elec. Co.
| Decision Date | 04 May 1920 |
| Docket Number | No. 33154.,33154. |
| Citation | 177 N.W. 700,188 Iowa 1192 |
| Parties | CITY OF DUBUQUE v. DUBUQUE ELECTRIC CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dubuque County; J. W. Kintzinger, Judge.
Action in equity asking an injunction against defendant. There was a decree entered in October, 1918, for the plaintiff, restraining defendant from operating its street cars over and upon the loop, as laid and constructed, upon Grandview avenue, and enjoining defendant from using said loop as a part of its street car lines. There was a judgment against defendant for costs. The defendant appeals. Affirmed.Nelson, Duffy & Nelson, of Dubuque, for appellant.
M. H. Czizek and M. D. Cooney, both of Dubuque, for appellee.
The petition was filed August 18, 1915, and against the Union Electric Company, a corporation, organized under the laws of Iowa. Defendant Dubuque Electric Company, a Delaware corporation, in July, 1916, purchased and took over the street car system of the Union Electric Company.
It is alleged substantially: That plaintiff is a special charter municipal corporation. In 1902 the Union Electric Company was granted a franchise to operate its various lines of street railway upon certain designated streets for street railway purposes, and according to the terms of said franchise, said company is limited to the streets therein named. A copy of the ordinance or franchise is attached to the petition. Grandview avenue is a public street, open for traffic, and is not one of the streets upon which said company was granted any right or franchise to use. November 15, 1914, defendant's predecessor, through its general manager, petitioned the mayor for the right to construct a loop at the terminus of its South Dodge and Linwood line, as an extension to said line of railway, to be constructed from the end or terminus of said line on South Dodge street, upon Grandview avenue, and to occupy the street between the curbs on said avenue with the necessary ties, rails, wire, and poles. Said petition was, by motion, referred to the city council's committee of the whole, which committee reported in favor of granting said petition, and which report was approved by the city council. That the Union Electric Company, acting upon such proceedings, tore up the surface of the street, laid its track, and constructed said loop as an extension of its street car line. Said loop is now being used by defendant as a part of its South Dodge Street and Linwood line. No ordinance was ever passed by the city council, granting defendant the right to occupy Grandview avenue with said loop, but the only action taken by the council was the passage of the motion referred to, nor did the mayor issue a written permit to occupy said street. No notice of the application to construct and extend its line in the form of a loop on said avenue was ever published officially in any newspaper. That the construction and operation of said loop and its appurtenances, and the extension of defendant's system over and along Grandview avenue, is unlawful, and wholly without right or authority, and by reason of its location, construction, and operation constitutes a nuisance, is a trespass, is a menace to the public, and is an unlawful interference with plaintiff's rights in and to the free and unobstructed use of Grandview avenue. That soon after defendant began to construct said loop, and before it was completed, plaintiff served notice upon the defendant to discontinue the construction, and remove its rails, etc., which defendant refused to do, and has ever since continued to operate its line of railway upon said street. Plaintiff has no speedy or adequate remedy at law.
Defendant makes the following admissions: It is the successor to the Union Electric Company, and acquired all the rights of said company, and assumed the obligations of said company, and its predecessor was granted a franchise as alleged. Grandview avenue is a public street. Permission was requested to construct a loop, and that this was referred to the committee, and granted by the council, and avers that, before the report of the committee of the whole to the council, the members of the council, in a body, went to the proposed site of the loop, had the radius and the space pointed out to them, and that said loop is constructed partly on Grandview avenue, and partly on South Dodge street, at the junction of said avenue and street, of a radius of about 40 feet. It constructed the loop under the proceedings referred to, and alleged that, after laying its rails, it paved the space between the rails and a foot on either side with brick, and set one pole for its wires used on the loop; admits no notice of the application of defendant to receive a franchise, or grant to it the privilege to construct and extend its line of railway in the form of a loop on Grandview avenue, was ever published the required number of times as by law provided; admits no ordinance was passed by the council granting the right to occupy Grandview avenue with the loop, as an extension of its system, and the only formal action taken by the council was the passage of the motion referred to. The mayor did not issue a written permit to occupy the street, and avers the installation of the loop is not an extension of its railway system, and that no part of said railway is laid upon Grandview avenue as a street railway system, and that the loop is but an enlargement of the facilities which the franchise holder employs in exercising the power originally granted; avers that the application to the mayor was not an application for a franchise to operate upon Grandview avenue, but the privilege asked for and granted by the council, was in the nature of a switch or turnout, to enable the company greater facilities to operate its cars under its franchise; denies that the construction and operation of the loop is unlawful; denies that it was served with notice shortly after beginning the construction of the loop, but avers that, shortly before the loop was completed, it was notified to cease its operation, which notice was not heeded. It will continue to operate the loop unless denied the right to do so; denies that plaintiff has not a speedy remedy at law; avers that defendant relied in good faith upon the permission granted, and expended money for labor and material, which has not been repaid; denies all allegations not admitted.
The case was tried upon an agreed statement of facts, and an amendment thereto, which follows:
“1. It is agreed that the defendant Dubuque Electric Company is the successor of the defendant Union Electric Company, has acquired all the property, rights, privileges, franchises, etc., of the said Union Electric Company in the city of Dubuque, Iowa, and has assumed the duties, obligations, and responsibilities of the defendant Union Electric Company, and is engaged in the management, operation, and control of the properties described in plaintiff's petition, with the same rights and obligations as the defendant Union Electric Company.
2. It is admitted that the defendant Dubuque Electric Company is limited in the operation of its railway system to the streets named in its franchises, excepting as to rights acquired by necessary implication, including such rights, if any, as were granted by the adoption of the report of the committee of the whole on March 4, 1915, referred to in the pleadings.
3. It is admitted that the defendant Dubuque Electric Company has no franchise to lay its tracks or ties or rails on Grandview avenue as a part of its street railway system, excepting such rights as may be conveyed in the general grant to install switches, turnouts, etc., and as contained, if any, in the grant of March 4, 1915, by the adoption of the report of the committee of the whole referred to in the pleadings, and such as were acquired by necessary implication.
4. It is admitted that on or about November 15, 1914, the defendant Union Electric Company petitioned the city council of the plaintiff city for the privilege to construct, among other things, a loop at the terminus of its South Dodge Street line of the character and dimensions as shown on blueprint map prepared by Eugene Anderson, civil engineer, on file in this case, and which is marked Exhibit D.
5. It is admitted that, before the report of the committee of the whole referred to in the pleadings in this case was made to the city council of the city of Dubuque, all of the members of the city council of the city of Dubuque, while acting as a committee of the whole and in a body, accompanied a representative of the said Union Electric Company, to the proposed site of the loop, and made a personal examination on the ground of the location of said loop, had the radius of the same pointed out to them, and that said loop is constructed partly on Grandview avenue and partly on South Dodge street, at the junction of Grandview and South Dodge street of a radius of about forty (40) feet.
6. It is admitted that the defendant Union Electric Company, acting under the authority of the city council of the city of Dubuque, granted under the adoption of the said report of the committee of the whole, went upon the premises pointed out to the members of the city council, and constructed said loop in conformity with the draft shown upon the blueprint map, marked Exhibit D, hereinbefore referred to, and paved the space occupied between its rails, and one foot on either side thereof, with brick, rendering the whole surface, including the rails, even with the surface of the street, and that it set but one pole to accommodate its wires for the conduct of its cars about said loop.
7. It is admitted that the only extension granted to and accepted by the defendant Union Electric Company is as is shown on the said blueprint map marked Exhibit D.
8. It is admitted that the rails used in the construction of said loop were manufactured under a special order, and were on the ground...
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