Denver & S.F.R. Co. v. Domke

• Decision Date: 19 April 1888
• Citation: 11 Colo. 247,17 P. 777
• Court: Colorado Supreme Court
• Parties: DENVER & S. F. R. CO. et al. v. DOMKE et al. DOMKE et al. v. DENVER & S. F. R. CO. et al.

17 P. 777

11 Colo. 247

DENVER & S. F. R. CO. et al. v. DOMKE et al.

DOMKE et al. v. DENVER & S. F. R. CO. et al.

Supreme Court of Colorado

April 19, 1888

Appeal from superior court of Denver.

In November, 1880, the Denver Circle Railroad Company was organized as a corporation under and by virtue of the laws of the state of Colorado. In January, 1881, it procured the passage of an ordinance by the city council, granting authority to locate, construct, maintain, and operate a single or double track railway and telegraph line through certain streets of the city, including Willow lane and Clark street. It thereupon proceeded to construct a narrow gauge railway through the streets above named, among others, and during the same year completed and commenced operating the road through said streets. The business thus inaugurated has been carried on down to the present time. The Circle Company becoming financially embarrassed in the operation of the road, judicial proceedings were instituted, and a receiver appointed, who took possession thereof. In the course of time a decree was entered by the circuit court of the United States, under which the road, its rolling stock, and all its rights and franchises were sold. In 1887 the Denver & Santa Fe Railroad Company was organized under and in pursuance of the corporation laws of Colorado. The parties organizing this company had previously bought the capital stock, mortgage bonds, and evidences of indebtedness issued by the receiver of the Circle Company. The Denver & Santa Fe Company, upon its organization, became the owner of the property thus purchased. The latter company proceeded with the operation of the Circle road as constructed, and also prepared to put down a third rail upon the ties already laid, for the purpose of operating thereon standard gauge trains, and carrying on the business of a standard gauge road. The company connected directly, at Pueblo, with the Atchison, Topeka & Santa Fe Company, a through line from Kansas City to Pueblo. Plaintiffs, Herman Domke and others, are the owners of lots abutting on the two streets mentioned. They brought this suit in equity in the superior court for the purpose-- First, of permanently enjoining the further operation of the narrow gauge Circle Railroad as now constructed; and secondly, for the purpose of perpetually enjoining the laying of the third rail, and the operating of standard gauge trains. The cause was tried to the court sitting as a chancellor. The first kind of relief thus sought was denied, but an injunction was granted under the second demand or prayer, staying the projected changes until the Denver & Santa Fe Company had first proceeded under the eminent domain statute, to condemn the right of way, in connection with the alleged additional burden, and have the damages to result to the plaintiffs' abutting property assessed. From the portion of the decree denyin the injunction to restrain the continued operation of the Circle road, as now constructed, plaintiffs below appealed to this court. From the portion of the decree allowing the injunction restraining the laying of the third rail, etc., defendants below took their appeal. By agreement the two appeals are consolidated, and the errors assigned by both parties are considered and disposed of in one decision. The remaining essential facts, together with the constitutional and statutory provisions involved, sufficiently appear in the opinion.

Patterson & Thomas, for plaintiffs.

C E. Gast and Edw. L. Johnson, for defendants.

HELM J., ( after stating the facts as above.)

The constitution (article 15, § 4) declares, inter alia that 'any association or corporation organized for the purpose shall have a right to construct and operate a railroad between any designated points within the state.' It may happen that one of the 'designated points' is within the corporate limits of some city or town, and can only be reached through a street. The legislature, by the act in force when the Circle Company ordinance was passed, authorized the council of Denver 'to regulate and prohibit the use of locomotive engines, to direct and control the location of railroad tracks, to require railroad companies to construct, at their own expense, such bridges, tunnels, or other conveniences at public crossings as the city council may deem necessary, and to regulate the speed of all railroad trains.' Charter 1877, § 40, subd. 45. See, also, Charter 1874. This statute clearly contemplates the use of streets by ordinary railroads. Unless such use was in the legislative mind, its provisions are meaningless. Other provisions of the same act show conclusively that the clause in question does not refer to local street railways. But it is held that the fee to streets in Denver, covered by statutory dedications, is vested in the city in trust for the use of the public. Railroad Co. v. Nestor, 10 Colo. ----, 15 P. 714; City v. Clements, 3 Colo. 472. The legislature has delegated the exclusive control of the streets to the municipal authorities, subject only to its own paramount dominion. We think the authority of the city council to permit the construction and operation of an ordinary railroad through the street rests upon clearly implied, if not express, legislative sanction. This question is practically res adjudicata. 'It was within the contemplation of the legislature that they [ordinary railroads] might enter and pass through the city.' Railroad Co. v. Nestor, supra; Railroad Co. v. Mollandin, 4 Colo. 154. It is hardly necessary to say that we regard the several additions referred to in this case as having been platted and recorded substantially in compliance with the statutory requirements, and hence treat them as statutory dedications. The statute does not, however, make this a usual or ordinary use. It recognizes the importance of allowing such railroads ingress and egress into and out of the city, and the necessity of laying their tracks and operating their lines along some of the streets; but the use remains an unusual and extraordinary use. It is not one of the uses to which every street is necessarily and primarily dedicated. The authority of the council to permit this use is correctly termed a 'special power.' This power will naturally be exercised in connection with but few of the streets; and, while all dedications or grants are subject to the exercise of the power, as a matter of fact it is very rarely contemplated in the act of dedication. There is, therefore, no difficulty in distinguishing between the abutting owner's right to compensation for injuries occasioned by the use, and his claim where the injury complained of results from a reasonable and careful grading or other improvement of the street for local convenience and travel. Upon this subject, see the following opinions, and cases there cited: Railroad Co. v. Nestor, supra; City v. Verina, 8 Colo. 399, 8 P. 656; City v. Bayer, 7 Colo. 113, 2 P. 6. The ordinance before us, granting a right of way to the Circle road, is therefore not invalid for the want of legislative authority in the premises. So far as this objection is concerned, the ordinance constitutes a valid license from the proper authorities to use a portion of the streets designated, and the Circle Company was not a mere trespasser ab initio.

The superior court did not err in refusing to enjoin the operating of the Circle road. It is sufficient, upon this objection, to say-- First, that some of the plaintiffs below obtained their title after the company, acting under the municipal license above mentioned, had constructed its road, and the same was in operation; second, that the rest of the plaintiffs, all of whom were owners prior to the occupation of the street under such license, quietly stood by, permitting the expenditure of a large sum of money in construction, and waited more than six years after such construction before entering a protest by instituting these legal proceedings; and that neither class of plaintiffs, thus situated, is in position to ask of a chancellor injunctive relief against the operation of the road as now constructed. If, by this use of the street, the market value of plaintiffs' abutting property, for any use to which it may reasonably be put, has, since they become the owners thereof, been diminished, and by laches or otherwise they have not forfeited their right to compensation, they may bring an action at law and recover. But, under the circumstances here presented, a court of equity will not, through the extraordinary writ invoked, lay its strong hand upon the company, and stay the carrying on of its lawful business.

Did the court below err in enjoining the Denver & Santa Fe Company from laying a third rail, and operating standard gauge trains upon the road-bed originally constructed by the Circle Company, until it had proceeded under the eminent domain statute, to condemn a right of way through the two streets mentioned in the pleadings? This is not an action directly against defendants for the unlawful usurpation or exercise of a corporate franchise, nor for the illegal appropriation or use of a public or quasi public license. Neither the public, nor the city of Denver, nor any one acting or professing to act in behalf of the public or city, is here complaining. The suit is instituted by private property owners along the two streets in question, in their private capacity, and to prevent by injunction the...