City of Seattle v. Columbia & P.S.R. Co.

• Decision Date: 24 May 1893
• Citation: 6 Wash. 379,33 P. 1048
• Court: Washington Supreme Court
• Parties: CITY OF SEATTLE v. COLUMBIA & P. S. R. CO. ET AL.

33 P. 1048

6 Wash. 379

CITY OF SEATTLE v. COLUMBIA & P. S. R. CO. ET AL.

Supreme Court of Washington

May 24, 1893

Appeal from superior court, King county; I. J. Litchtenberg, Judge.

Suit by the city of Seattle against the Columbia & Puget Sound Railroad Company and the Northern Pacific & Puget Sound Shore Railroad Company to enjoin defendants from building their tracks across Columbia street, in said city. Injunction denied. The city appeals. Affirmed.

George Donworth, (Burke, Shepard & Woods, of counsel,) for appellant.

Ashton & Chapman and Andrew F. Burleigh, for respondents.

SCOTT J.

On the 14th day of March, 1882, the city of Seattle passed an ordinance purporting to grant a right of way to the Oregon &amp Transcontinental Railroad Company and the Columbia & Puget Sound Railroad Company to lay a single or double track along and upon certain streets therein described. The first section, describing the route, was amended October 29, 1883. The second section, omitting the seventh subdivision, which provided for the joint use of such tracks by any other railroad company constructing a railroad to Seattle, and provided a method of determining compensation therefor, is as follows: "That said Oregon & Transcontinental Railroad Company and the Columbia & Puget Sound Railroad Company be and are authorized to locate, lay down, and perpetually maintain and operate a single or double track railroad upon the track and place described in section one of this ordinance, upon the following terms, to wit: First. That the said companies, their successors and assigns, are to allow each wharf owner a side track connecting the said road with the warehouses of each wharf owner, the side track to be constructed and kept in repair by the wharf owners or occupants along said water front. Second. That the rights so granted shall not in any way be construed as depriving the occupants of lots along said water front of any riparian rights or any rights, except so far as such way extends. The said owners and occupants reserve the right to wharf out in front of said railroad, and it is agreed that they shall have that right without objection by, or on the part of, said railroad companies, their successors or assigns. Third. The said road to be constructed by the railroad companies so as to be on a common level with the wharves along said water front. Fourth. That said companies their successors and assigns, where said track crosses a wharf now or hereafter to be constructed, shall plank and keep in repair at least fifteen feet of said way, and whenever a double track is constructed over said way, then the company or companies constructing or operating the same shall plank and keep in repair the entire way over said wharves, and the same may be used by the wharf owners at all times except when trains are passing over it. Fifth. That said railroad companies, their successors and assigns, shall not allow their cars to stand upon the track on any wharf along said water front without the consent of the owner of such wharf. Sixth. That said Oregon & Transcontinental Railroad Company is to construct a standard-gauge railroad from Seattle to a point on the Northern Pacific Railroad Company's constructed line, so as to connect the city of Seattle with eastern Washington, either by way of Portland, Oregon, or the Cascade mountains, within two (2) years; and, on failure so to do, this right herein granted shall be void, and of no effect: provided, that, if any other road shall construct a standard-gauge road connecting Seattle with eastern Washington before the roads above mentioned, then and in such case the rights herein to lay, maintain, and operate such tracks be, and the same are hereby, granted to the road that shall so construct such line." "Eighth. That said companies, their successors or assigns, shall not run trains over said tracks along said water front at a higher rate of speed than six miles an hour, and the city shall retain the same control over the streets and alleys wherein the said tracks are laid as on and across streets and alleys upon the land." In the latter part of 1883, the Puget Sound Shore Railroad Company, which was the predecessor of the Northern Pacific & Puget Sound Shore Railroad Company, and which claimed to have succeeded to the rights of the Oregon & Transcontinental Railroad Company, aforesaid, constructed a railroad of standard gauge from Seattle to Stuck Junction, a point on the Northern Pacific Railroad Company's line, thereby connecting the city of Seattle with eastern Washington, then via Portland, Ore., with a continuous line of railroad. This road was constructed within the time specified. It started from a point within the southern limits of said city of Seattle, but did not cover any part of the right of way described in said ordinance. This road was operated for about one month after completion, but thenceforth for a year and a half no trains were run thereover. A three-rail track (the Columbia & Puget Sound Railroad being a narrow-gauge road) was also constructed by the Columbia & Puget Sound Railroad Company and the Puget Sound Shore Railroad Company along the right of way described in said ordinance, which is now in controversy, but a gap of one rail's length was left at the point where the standard-gauge track was designed to connect with the line constructed as aforesaid. After the expiration of this period of one year and a half, during which the road aforesaid was not operated, the connection was made, and a continuous line was thenceforth operated continuously for several years, until June 6, 1889, when a great fire destroyed the railroad on said right of way, together with a vest amount of other property in the vicinity. The railroad companies at once set about restoring the wharves and warehouses, etc., and the railroad tracks on said right of way. When they reached Columbia street, building north, they found that the city had raised the grade of that street at the point of crossing about two feet, and had filled in the street to conform therewith. On August 21, 1889, when the railroad companies were proceeding to build across the street on the wharf-level grade as before, and were cutting the embankment the city had placed in front of them, this action was commenced, and a temporary restraining order was issued and served, restraining them from prosecuting the reconstruction of their tracks across Columbia street. Various attempts were made to dissolve this order, but without success, so that the respondents have not been able to reconstruct said tracks north of the south line of Columbia street by reason of these proceedings. Upon the final trial, the court below decided the cause in favor of the defendants, but ordered that the respondents should gain no advantage of the decision, provided the city should within 30 days prosecute an appeal, which it has done. Therefore all matters remain in statu quo as of August 21, 1889.

The right of way in controversy is located upon tide and shore lands, a part of it being within the meander line, and a part without. The first five propositions contended for by appellant relate to the right of the city to maintain and control a public street on the shore land prior to the erection of the territory of Washington into a state, to extend the streets in question thereon, and to the enactment of the ordinance establishing the higher grade of Columbia street after the destruction of the railroad at such point by fire as aforesaid. For the purposes of this case, these propositions will be taken as established. The remaining points contended for by appellant are as follows: "(6) Ordinance No. 262, (as amended by Ordinance No. 484,) purporting to grant a franchise to build and operate a railroad, is void, by reason of the nonexistence of the Oregon & Transcontinental Railroad Company, one of the grantees named-First, in respect to the defendant Columbia & Puget Sound Railroad Company, the other grantee; and also, second, in respect to the defendant Puget Sound Shore Railroad Company, which joined with the last-named grantee in building the road; and, third, in respect to said defendants jointly; and, fourth, said franchise was also void because in terms perpetual and irrevocable. (7) Said ordinance is void by reason of noncompliance with the sixth condition therein specified, as to the time within which the road should be constructed to a connection with eastern Washington, and by reason of failure continuously to operate the road when constructed. (8) Said ordinance was of no force in respect to the shore land, comprising the place to which the injunction sought relates, because the city, at the date of the ordinance, had no power to dispose of or incumber the shore; and the city is not estopped, by its subsequently acquired title to the locus in quo as a street, from denying its former power to make the grant. (9) Assuming, however, that the defendants have the franchise claimed under the ordinance, the city's right of control over the street at the point of crossing was paramount, and could be exercised, when the injunction was sought, as the city might see fit, though the result might be the impairment or even destruction of the defendants' franchise; the sole remedy of the defendants, if any, being an action for damages. (10) Even if the city's right of control over the street could not be exercised to the destruction of the defendants' franchise, its exercise in this case would not work a destruction of the franchise, apart from the change of grade of other streets crossing the railroad; and such change of other streets was not properly proved, and, if proved, was irrelevant under the pleadings."

The order in which the points have been stated will not be...