City of Duluth v. Duluth Street Railway Company

• Decision Date: 29 June 1917
• Docket Number: 20,270 -- (101)
• Citation: City of Duluth v. Duluth Street Railway Company, 163 N.W. 659, 137 Minn. 286 (Minn. 1917)
• Parties: CITY OF DULUTH v. DULUTH STREET RAILWAY COMPANY
• Court: Minnesota Supreme Court

163 N.W. 659

137 Minn. 286

CITY OF DULUTH v. DULUTH STREET RAILWAY COMPANY

Nos. 20,270 -- (101)

Supreme Court of Minnesota

June 29, 1917

Action in the district court for St. Louis county to recover $6,303.40, that portion of the expense of paving Ninth street in the city of Duluth caused by the presence of defendant's railway tracks. The case was tried before Dancer, J., who made findings and ordered judgment against defendant in the sum of $1,644.61. Defendant's motion for amended findings was granted in part and denied in part. From an order denying its motion for a new trial, defendant appealed. Affirmed.

SYLLABUS

Street railway -- liability for paving street.

1. Defendant's franchise prescribes that "the company shall pave or otherwise improve the space between the rails of their tracks, unless otherwise provided by the village (city) council, so that it shall substantially correspond with the improvement of the street outside said tracks except that in case other than animal power is used the company shall be required to pay only so much of the expense of paving the street as is made extra by reason of said railway." Another section therein provides that the "company shall keep the space between the rails in proper repair."

Street railway.

2. The word "railway" as used in the quoted part is not confined to the track but includes the operation of cars upon the track. And, having in mind the long duration of the franchise, it is considered that the parties anticipated progress in the mode of operating street railways as well as in ideas concerning street pavements. In respect to the operation of street railways, there are now heavy and rapidly moving cars necessitating deeper foundations for pavements where the track runs; and in respect to pavement, advanced ideas require residential streets to be paved for no greater width than necessary to accommodate ordinary travel, hence it may be justly said that for any extra width made necessary by the existence of the railway upon the street the defendant should pay.

Street railway

3. As supporting this conclusion may be adduced the holding of eminent authority that, in the absence of contract provisions, a railway company, by occupying a portion of the street with its tracks, becomes obligated to keep the space so occupied improved or paved to correspond with the rest of the street; also pointing to the same conclusion is the section providing that defendant shall keep the space between the rails in repair.

Franchise construed strictly.

4. Where a franchise is granted to occupy a public street, it is to be construed strictly as against the grantee.

Practical construction not conclusive.

5. The practical construction heretofore placed upon the provision in question by the city authorities was not made under similar situations to the one here presented, and it is doubted whether such authorities could conclude plaintiff in any event, the state being a party to this franchise.

Washburn Bailey & Mitchell, N. M. Thygeson and Thomas S. Wood, for appellant.

John E. Samuelson, City Attorney, and Francis W. Sullivan, Special Counsel, for respondent.

OPINION

HOLT, J.

The city of Duluth paved a certain distance of Ninth street. On the part so paved the defendant has tracks upon which are operated its electric street railway cars under a franchise duly granted. The pavement is 42 feet wide from curb to curb, where the street car tracks are laid. For a portion of the distance paved there are double tracks and over the rest there is a single track. A dispute arose in respect to the amount the street railway, under its franchise, was obligated to pay towards the cost of paving, and the city brought this action to have the amount determined and collected. The trial court concluded that defendant was liable to pay for 10 feet of the 42 feet paved where it had double tracks, and for 5 feet where it had a single track. Defendant moved for a new trial. From the order denying the motion this appeal is taken.

The sole question is the construction or meaning to be given the contract governing the rights of the parties as contained in section 6 of the franchise granted defendant by the legislature in 1881, which, so far as here material, reads: "And in case said village shall at any time pave or otherwise improve the surface of any street along which said railway may run, said company shall pave or otherwise improve the space between the rails of their tracks unless otherwise provided by the village council, so that it shall substantially correspond with the improvement of the street outside said tracks, except that in case other than animal power is used the company shall be required to pay only so much of the expense of paving the street as is made extra by reason of said railway."

Section 10, which may have a suggestive bearing on the proper meaning to be given section 6, reads: "Said tracks shall be laid in the center of the street in all cases where it is practicable to lay them, and said tracks shall not be laid within 12 feet of the sidewalk upon any street where it is practicable to be avoided, and said company shall keep the space between the rails in proper repair, so as not to interfere with travel over the same."

The contention of defendant is that, when other than animal power is used to propel its street cars, no obligation rests upon it to contribute towards paving the street, if that be ordered, except for the extra expense in laying the pavement by reason of the existence of the track in the street. This would include the extra labor to fit the pavement to the rails and ties, the proper and safe adjustment of the paved track to the rest of the pavement, by having a heavier foundation thereunder and by stretchers and headers along the rails so as to reduce the danger of injury to the pavement from vibration when the heavy cars pass rapidly over the track.

The claim of plaintiff is that whatever extra expense is incurred in paving a street, by reason of the existence and operation of defendant's railway thereon, over and above what would be required were the railway not there, falls upon defendant. That this includes not only stretchers and headers, fitting the pavement to the rails, the increased depth of foundation for the pavement under the track, but also the increased width made necessary on account of the railway. Therefore when, as here, a 26-foot pavement was ample for the accommodation of public travel, had defendant not occupied the street, it should bear the extra expense of the additional 16 feet made necessary because of such occupancy.

The court below concurred in plaintiff's interpretation of the franchise, but held that only 10 feet additional width of paving was made extra by the existence of the railway where double tracked, and 5 feet where single tracked.

The contentions of both parties have been most thoroughly presented; and every paving proposition involving any part of a street railway track in Duluth is in the record, on the theory that the parties have given a practical interpretation of the franchise provision which should be accepted by the courts. In this practical construction plaintiff also finds some comfort, because admittedly defendant paid for extra foundation or beams under its tracks, hence the argument is: If the company has conceded the obligation to pay for extra depth, it follows that it should pay for extra width when required. Defendant, on the other hand, says that no claim for extra width was ever asserted, and that uniformly it settled with the city by paying only the extra expense of fitting the pavement to the rails, and such extra price as certain material, found necessary and convenient to use against or between the rails of the track, costs more than the material composing the balance of the pavement, together with such extra foundation or other means as have been found expedient to avoid injury to the pavement from vibration and jars from the operation of the cars.

In construing section 6 defendant insists that in the clause, "as is made extra by reason of said railway," the word "railway" is synonymous with track and does not include the operation of cars thereon. This seems too narrow a view. As stated defendant's past conduct is indicative of a contrary understanding. Apparently without coercion it has paid for extra means employed in the construction of the pavement to avert injury thereto from the operation of the cars over the tracks. We have no doubt that as the word railway is used in the quoted clause it means the tracks with cars moving thereon. We cannot place too literal construction upon this franchise which was to run for such long time. Neither as to pavement, nor as to a street railway, could it have been contemplated that the future construction or operation should be as of the time the franchise was granted. All parties looked for improvements. Motive power other than animal was anticipated. And we dare say the actual advance has been greater than the most sanguine could have hoped for. As illustrative of the fact that even the terms of a grant must yield to progress, we cite the case of City of Detroit v. Detroit U. Ry. 172 Mich. 496, 138 N.W. 215, where it was held that, notwithstanding the franchise provided that the street car company should pave between the rails with cobble stones, it could be compelled to use other material when modern needs so required. We think this franchise clearly contemplates that defendant should share in the burden of paving, at least to the extent that its railway line increased such burden. It is plain that by section 10 it must maintain or keep in repair the space between the rails, and it is equally plain that, so long as animal power...