Dooly Block v. Salt Lake Rapid Transit Co.

• Decision Date: 05 June 1893
• Citation: 9 Utah 31,33 P. 229
• Court: Utah Supreme Court
• Parties: DOOLY BLOCK, A CORPORATION, AND OTHERS, RESPONDENTS, v. SALT LAKE RAPID TRANSIT COMPANY, APPELLANT. THOMAS W. JENNINGS AND OTHERS, RESPONDENTS, v. SALT LAKE RAPID TRANSIT COMPANY, APPELLANT

33 P. 229

9 Utah 31

DOOLY BLOCK, A CORPORATION, AND OTHERS, RESPONDENTS, v. SALT LAKE RAPID TRANSIT COMPANY, APPELLANT.

THOMAS W. JENNINGS AND OTHERS, RESPONDENTS, v. SALT LAKE RAPID TRANSIT COMPANY, APPELLANT

Supreme Court of Utah

June 5, 1893

APPEALS from judgments of the district court of the third district and from orders refusing new trials. Hon. Charles S Zane, judge. The opinion states the facts.

Messrs Williams and Van Cott and Mr. C. B. Jack for the appellant cited Railway Co. v. Hicks, 14 Am. and E. R. R Cases, p. 104, note and cases there cited; Randall v. Railway Co., 17 Am. and E. R. R. Cas. 184; Rochette v. Railway Co., Id. 195 and note; People v. Kerr, 27 N.Y. 188; Story v. Railway Co., 90 N.Y. 122; Mahady v. Railway Co., 91 N.Y. 148; Moses v. Railway Co., 21 Ill. 515; Murphy v. City of Chicago, 29 Ill. 279. Also upon question of injunction cited High on Injunctions (2d ed.), secs. 762, 827, 828, 589, 635, 636, 637; Rochette v. Railway Co., supra; Spencer v. Railway Co., 20 Am. and E. R. R. Cas. 125; Smith v. Railway Co., 20 Am. and E. R. R. Cas. 160.

Affirmed.

Messrs. Bennett, Marshall and Bradley, for the respondents in the first case.

Mr. Arthur Brown, for the respondents in the second case.

BARTCH, J. MINER, J., concurred.

OPINION

BARTCH, J.:

The respondents are the owners of certain lots situate in Salt Lake City, and abutting on Second South street, between Main and Second West streets. Two of these lots, one on the north, the other on the south, side of Second South street, are one block west of Main street, are business property, and, at the time of the trial of the cause business blocks were being erected thereon. The complaint, in substance, charges that the plaintiffs were respectively the owners of that portion of the street which lies between the center line thereof and the front line of the said lots, subject only to the ordinary use of the public for the purposes of travel; that the plaintiffs are entitled to the free and unobstructed use of the street as a means of access to the said premises; that by authority of Salt Lake City the Salt Lake City Railroad Company constructed on that street a double-track railroad, with wires, poles, and other appurtenances necessary to operate the same with electric power; that the same was being so operated, and afforded all necessary means and convenience to persons who might have occasion to travel on street railroads: that telegraph and telephone lines, and wires and poles for electric light, had been constructed on the street; and that by reason of the several uses with which it had thus been burdered, the ordinary use thereof for public travel and ingress and egress to the several premises had become impeded and embarrassed; that on the 6th day of May, 1890, and after the said street had been burdened as aforesaid, Salt Lake City, by its council, granted the defendant herein authority to construct and operate, by electric power, a street railroad on said street, from First East to Seventh West street; that because of the obstructions already existing thereon, and because another railroad was not necessary for public convenience, the resolution granting the franchise to the defendant was unreasonable and void; that, in pursuance of the authority thus granted, the defendant commenced the construction of a railroad, and threatened to complete the same unless restrained; and that another railroad constructed thereon, with its equipments and operation, in addition to the already burdened condition of the street, would greatly depreciate the value of the plaintiffs' property, and injure its convenient use and enjoyment. The defendant, in its cross complaint, in substance alleges that it owns and operates various lines of street railroads in the city and remote parts thereof, and in densely populated localities in the eastern portion of the city; that for public convenience it should have a line through the business portion of the city, to connect with railway depots and other parts of the city lying west of Main street; that defendant had no franchise connecting its eastern lines with the western portion of the city through the business part thereof, except the one on Second South street; and that in the granting of franchises the city has denied the right to parallel existing lines except in this instance.

The trial court, in substance, found the above allegations of the plaintiffs and defendant to be true, and, among other things, found as facts that the plaintiffs are the owners of equitable easements in fee of rights of access, ingress and egress to their respective lots in front thereof in the street, and entitled to the free and unobstructed use of that portion of said street as a means of access, such easements extending along the street from the first north and south street east of said lots to the first north and south street west of such lots, the same being subject to the ordinary use of the street by the public; that the fee of the street is in Salt Lake City, in trust for street uses proper; that prior to the granting of said franchise by the city there were constructed and in operation on that street a double-track street railroad, telegraph and telephone lines, wires and poles for electric lighting, and the street had already become greatly obstructed, and access to plaintiffs' property impeded and embarrassed; that because of the obstructions already existing upon the street the resolution attempting to grant the franchise to the defendant was unreasonable and void; that the two tracks in operation on said street were sufficient to satisfy the demands of public convenience, and there was no necessity for a third track; that its construction would greatly depreciate the value of plaintiffs' property, interfere with its convenient use and enjoyment, and they would thereby suffer irreparable damage; that Salt Lake City, in granting the franchise to defendant, did not act within its lawful authority, nor exercise reasonable discretion for the best interests or convenience of the public; that the two tracks were constructed and are being operated in front of said lots by the Salt Lake City Railroad Company, and are sufficient to permit the passage of all street cars necessary for public convenience, and between the third track, proposed to be constructed, and the sidewalk there would not remain sufficient space for the ordinary traffic of the street, free from unreasonable obstructions; that the defendant has electric street-car lines in operation in the eastern and western portions of said city, but has no other connecting line or franchise except the one on said Second South street passing through the business portion of the city, or reaching the depots of the several steam railroads, such connecting line being of great importance to the defendant, and necessary for the public travel; that the defendant company and the Salt Lake City Railroad Company can operate both of their railways together by means of the two tracks of the last-mentioned company now on that street, which tracks afford sufficient track privileges for all the cars operated, or necessary to be operated, by both companies, for public travel and convenience; and that the construction and maintenance of a third track would be an unnecessary obstruction and interference with the ordinary use of the street, and the means of access to plaintiffs' premises would be unreasonably and materially abridged and injured. Upon this state of facts the trial court granted an injunction perpetually restraining the defendant from constructing and operating a third track on said Second South street. The defendant moved the court for a new trial upon the following grounds: First, "Insufficiency of the evidence to justify the findings of the court and decree in said case, and that the same were against law." Second, "Errors in law occurring at the trial, and excepted to by the defendant." From the order overruling this motion the defendant appealed to this court.

This leads to the inquiry as to whether or not the construction and operation of the third track upon that street by the defendant involves the taking of property of the plaintiffs and as to whether the city council of Salt Lake City exceeded its limits of discretion and authority in granting the franchise to defendant. The plaintiffs contend that they are the owners in fee of the lots above mentioned abutting on Second South street, and, as such abutting owners, they are entitled to so much of the bed of the street as lies immediately in front of the lots and to the center of the street, on which the proposed third track is be built, subject only to the ordinary use of the same for the purposes of public travel, and that they are entitled to the use of said street, free from unreasonable obstructions, as a means of access, light, and air to their premises. The defendant maintains that the fee of said street is vested in the corporation of Salt Lake City, and that plaintiffs have no property therein, but are only entitled to the use thereof in common with the people of the city. The plaintiffs admit that the fee is in the city, in trust, however, for street uses proper, and subject to the equitable easements in fee of abutters. The lots and street in question are a part of a larger track entered under section 2387, (Rev. St. U.S.), which provided that the corporate authorities might enter any portion of the public lands settled upon and occupied as a town site, "in trust for the several use and benefit of the occupants thereof, according to their respective interests." Plaintiff's lots were represented on the original plat of Salt Lake City as fronting Second South street, which was platted in said plat, and when they...