Des Moines St. R. Co. v. Des Moines Broad-Gauge St. Ry. Co.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtADAMS
Citation73 Iowa 513,33 N.W. 610
Decision Date27 June 1887
PartiesDES MOINES ST. R. CO. v. DES MOINES BROAD-GAUGE ST. RY. CO. DES MOINES ST. R. CO. v. CITY OF DES MOINES AND OTHERS. DES MOINES ST. R. CO. v. DES MOINES BROAD-GAUGE RY. CO.

73 Iowa 513
33 N.W. 610

DES MOINES ST. R. CO.
v.
DES MOINES BROAD-GAUGE ST. RY.
CO.
DES MOINES ST. R. CO.
v.
CITY OF DES MOINES AND OTHERS.

DES MOINES ST. R. CO.
v.
DES MOINES BROAD-GAUGE RY.
CO.

Supreme Court of Iowa.

June 27, 1887.


Appeal from circuit court, Polk county.

These cases are submitted together as involving the question as to the respective rights of the plaintiff, the Des Moines Street Railroad Company, and the defendant the Des Moines Broad-Gauge Railway Company, to occupy certain streets of the city of Des Moines. The first case is an action to enjoin the defendant, the Des Moines Broad-Gauge Street Railway Company from interfering with the plaintiff in laying its tracks upon certain streets, and for a decree that it has no rights in those streets. The second is an action for an injunction to prevent the city and city officers from interfering with the plaintiff in laying its track. The third pertains to a different street, but involves substantially the same legal questions. The decree rendered is quite lengthy, and we cannot properly set it out in full. It enjoined the defendant, the Des Moines Broad-Gauge Railway Company from occupying a portion of one street, and gave the plaintiff an exclusive right therein. It allowed the defendant to occupy other streets, and made various provisions in regard to occupancy. Both the plaintiff and the Des Moines Broad-Gauge Railway Company appeal; the former perfecting its appeal first.

ADAMS, C. J., dissenting.

[33 N.W. 611]

Kauffman & Guernsey and Parsons & Perry, for appellant.

Baylies & Baylies, for appellee.


ADAMS, C. J.

The plaintiff's claim is that it has for the present, under the ordinances of the city, an exclusive right to furnish to the city of Des Moines its street-railway service, and to occupy for that purpose, without hinderance or competition by any other street-railway company, so many of the streets as may be necessary, and that it will continue to have such right for a limited time to come, if it complies with its obligations, express and implied, arising under the ordinances in question. If this claim shall be sustained, the determination thus made will dispose of the other questions in the case.

In 1866 the city council of Des Moines passed an ordinance whereby it granted to the plaintiff's assignor, a company organized as a street-railway company, the right to lay a single or double track along all its streets. The same ordinance provided that “the right herein granted to said company to operate said railway shall be exclusive for the term of 30 years.” Many other provisions were made, not important to be set out.

The plaintiff relies upon the provision above quoted as being sufficient, so far as its terms are concerned, to give the exclusive right claimed, and insists that the provision is valid, if not originally for want of legislative grant of power, yet subsequently by such grant by the legislature, and by ratification of the ordinance by the council.

[33 N.W. 612]

The defendant company obtained an ordinance in 1886, and proceeded to occupy certain of the streets with its track. It denies that the right claimed by the plaintiff under the ordinance of 1866 appears to be given even by the terms of the ordinance. Its position is that the exclusive right granted pertains merely to the operation of the railroads which the plaintiff's assignor should build, and not to the streets, and that the plaintiff's right is not interfered with by occupancy of other or the same streets if the plaintiff is not hindered in the operation of its road.

In our opinion, however, the meaning of the provision is the same as if it read, “the right herein granted to said company to operate said railway shall be exclusive” of other street railways. It was not necessary to provide by ordinance that other persons should not run cars on the plaintiff's assignor's track, nor obstruct its cars; and no one, we think, looking at the ordinance, can suppose that that was all that was intended. So far, the plaintiff's assignor's right would be exclusive by reason of the mere right of property, and without any ordinance. If anything more were necessary we find it in the very section of the ordinance under consideration. It is provided in the same section and same sentence as follows: “And the said city of Des Moines shall not, until the expiration of said term, grant to or confer upon any person or corporation any privileges which will impair or destroy the rights and privileges herein granted to said company.” The right granted was to lay and operate a track on all the streets of the city. The construction and operation of a rival railway would impair the plaintiff's rights. It might not constitute a physical interference, but it would impair, if not destroy, the plaintiff's enterprise, so far as the profits were concerned; and those, we may assume, constituted the sole object of the enterprise. We cannot think that there is any reasonable doubt about the meaning of the ordinance. We think that the city undertook to exclude rival companies which would interfere with the profits of the company for whose benefit the provision was intended.

The defendant company's next position is that the provision in question is void for want of power in the city to make such provision. The fact is that there does not seem to have been, as early as 1866, any legislative grant to the city of power to confer upon an individual or corporation an exclusive right. The plaintiff contends that no such legislative grant was necessary, and adduces some very able arguments in support of its position. We do not find it necessary to determine this question. It was afterwards provided, in section 464 of the Code, that the city council shall have “power to authorize or forbid the location and laying down of tracks for railways and street railways.” The plaintiff contends that the power to forbid is sufficient to enable the city council to make a granted right practically exclusive for such time as it may see fit, by withholding the right from others. This, of course, cannot be denied. The doubt, if any, is as to whether the council, having the power to make a granted right practically exclusive, by withholding it from others, can bind itself by contract to withhold it for a limited time from others, if it shall deem it necessary to make such contract in order to secure a service to the public which it might not otherwise be able to do.

The question presented calls for a construction of the provision of the statute which gives the “power...

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14 practice notes
  • Iowa Independent Bankers v. Board of Governors of Federal Reserve System, No. 73--1952
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 7, 1975
    ...Telephone Co. v. Keokuk, 226 F. 82, 92--94 (S.D.Iowa 1915); Des Moines Street Railroad Co. v. Des Moines Broad-Gauge Street Railway Co., 73 Iowa 513, 33 N.W. 610, 615 (1887). Moreover, petitioner's contention strains the meaning of the term 'exclusive.' Since Iowa domiciled bank holding com......
  • Grand Trunk & W. Ry. Co. v. City of South Bend, No. 20,981.
    • United States
    • Indiana Supreme Court of Indiana
    • November 23, 1909
    ...at all times. Vandalia Co. v. State, 166 Ind. 219, 76 N. E. 980, 117 Am. St. Rep. 370;Des Moines Co. v. Des Moines Co., 73 Iowa, 513, 33 N. W. 610, 35 N. W. 610;Baltimore, etc., Co. v. Baltimore, 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; Railroad Co. v. Richmond, 96 U. S. 521, 24 L. E......
  • Huston v. City of Des Moines, No. 30734.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1916
    ...Bolton, 128 Iowa, 108, 102 N. W. 1045, 5 Ann. Cas. 906;Des Moines Street R. R. Co. v. Des Moines Broad-Gauge Street Ry. Co., 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602;McGuire v. C., B. & Q. R. R. Co., 131 Iowa, 340, 108 N. W. 902, 33 L. R. A. (N. S.) 706;Cargill v. State, 180 U. S. 452, 21 S......
  • State ex rel. Cnty. Atty v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1913
    ...R. R. Co. v. Des Moines B. G. Street Ry. Co., having been decided as early as the year 1887, the opinion being found in 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602. Another under the same title was decided later, the opinion being found in 74 Iowa, 585, 38 N. W. 496; and still another, under a......
  • Request a trial to view additional results
14 cases
  • Iowa Independent Bankers v. Board of Governors of Federal Reserve System, No. 73--1952
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 7, 1975
    ...Telephone Co. v. Keokuk, 226 F. 82, 92--94 (S.D.Iowa 1915); Des Moines Street Railroad Co. v. Des Moines Broad-Gauge Street Railway Co., 73 Iowa 513, 33 N.W. 610, 615 (1887). Moreover, petitioner's contention strains the meaning of the term 'exclusive.' Since Iowa domiciled bank holding com......
  • Grand Trunk & W. Ry. Co. v. City of South Bend, No. 20,981.
    • United States
    • Indiana Supreme Court of Indiana
    • November 23, 1909
    ...at all times. Vandalia Co. v. State, 166 Ind. 219, 76 N. E. 980, 117 Am. St. Rep. 370;Des Moines Co. v. Des Moines Co., 73 Iowa, 513, 33 N. W. 610, 35 N. W. 610;Baltimore, etc., Co. v. Baltimore, 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; Railroad Co. v. Richmond, 96 U. S. 521, 24 L. E......
  • Huston v. City of Des Moines, No. 30734.
    • United States
    • United States State Supreme Court of Iowa
    • March 11, 1916
    ...Bolton, 128 Iowa, 108, 102 N. W. 1045, 5 Ann. Cas. 906;Des Moines Street R. R. Co. v. Des Moines Broad-Gauge Street Ry. Co., 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602;McGuire v. C., B. & Q. R. R. Co., 131 Iowa, 340, 108 N. W. 902, 33 L. R. A. (N. S.) 706;Cargill v. State, 180 U. S. 452, 21 S......
  • State ex rel. Cnty. Atty v. Des Moines City Ry. Co.
    • United States
    • United States State Supreme Court of Iowa
    • March 22, 1913
    ...R. R. Co. v. Des Moines B. G. Street Ry. Co., having been decided as early as the year 1887, the opinion being found in 73 Iowa, 513, 33 N. W. 610, 35 N. W. 602. Another under the same title was decided later, the opinion being found in 74 Iowa, 585, 38 N. W. 496; and still another, under a......
  • Request a trial to view additional results

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