City of Waterloo v. Waterloo St. Ry. Co.

• Decision Date: 09 March 1887
• Citation: 32 N.W. 329,71 Iowa 193
• Parties: CITY OF WATERLOO v. WATERLOO STREET RY. CO.
• Court: Iowa Supreme Court

71 Iowa 193

32 N.W. 329

CITY OF WATERLOO

v.WATERLOO STREET RY. CO.

Supreme Court of Iowa.

March 9, 1887.

Appeal from district court, Black Hawk county.

This is an action in equity to restrain the defendants from laying down a street railway track in one of the streets of the plaintiff city. Defendant appealed from an order overruling a motion to vacate a temporary injunction.L. W. Reynolds and Platt & Hoff, for appellant.

C. W. Muleen, for appellee.

REED, J.

The city council of plaintiff passed an ordinance granting to defendant the exclusive privilege of constructing in the streets and alleys of the city the necessary tracks for a street railway. The privilege granted extended to all the streets and alleys of the city, and was to continue for 30 years. Defendant accepted the grant, and proceeded to construct and operate its railway in a number of streets. It afterwards commenced the work of constructing a track in Jefferson street, when the council passed an ordinance which, by its terms, repealed the former grant, but granted the same privilege as to the streets then occupied by defendant. The city thereupon commenced this action, alleging in its petition that, in constructing its track in Jefferson street, the defendant was acting without authority or right. The petition was presented to the judge of the district court, who, without any notice of the hearing having been served on defendant, granted a temporary writ of injunction, restraining defendant from prosecuting the work on that street. After this writ was served, defendant appeared, and filed an answer setting up the grant under which it claimed to be acting, and denying that it was acting without authority. Plaintiff thereupon filed an amendment to its petition, in which it alleged that defendant was using in the construction of the track what is known as the “T” rail which was a different rail from that ordinarily used in street railways; also that it was constructing the track on an unusual gauge, and that, if it was permitted to construct the track with that rail, and on that gauge, it would constitute a nuisance, and would greatly obstruct and interfere with the use of the street for ordinary purposes. Defendant answered this amendment, admitting that it was using the “T” rail, but denying that said rail was not ordinarily used in street railways, or that the gauge on which it was constructing its track was an unusual gauge, or that the track would constitute a nuisance. It also moved to vacate the injunction on the grounds, among others, that the order granting the writ was made without notice to it, and that, the material allegations of the petition being denied, the writ ought not to be continued. The present appeal is from the order overruling that motion.

The grounds upon...