Florida Cent. & P.R. Co. v. Ocala St. & S.R. Co.

• Decision Date: 17 March 1897
• Citation: 39 Fla. 306,22 So. 692
• Parties: FLORIDA CENT. & P. R. CO. v. OCALA ST. & S. R. CO.
• Court: Florida Supreme Court

22 So. 692

39 Fla. 306

FLORIDA CENT. & P. R. CO. v. OCALA ST. & S. R. CO.

Florida Supreme Court

March 17, 1897

Appeal from circuit court, Marion county; Jesse J. Finley, Judge.

Bill by the Ocala Street & Suburban Railroad Company against the Florida Central & Peninsular Railroad Company. From an order refusing to dissolve an injunction, and overruling a demurrer, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. The powers of a municipal corporation over its public streets are held in trust for the public benefit, and cannot, in the absence of clearly delegated authority, be surrendered or delegated by contract to private parties, either corporate or natural.

2. The well-established rule is that a municipal corporation can exercise only such powers as are granted to it in express terms, or those necessarily or fairly implied in or incident to the powers expressly granted, or those that are essential and indispensable, not simply convenient, to accomplish the objects and purposes of the corporation.

3. The powers conferred upon cities and towns by the general act (section 17, p. 248, McClel. Dig.) to regulate, improve alter, extend, and open streets, lanes, and avenues, and to cause encroachments and obstructions, decayed buildings and ruins to be removed, did not authorize the municipal corporation of the city of Ocala to vest, by contract, in a street-railway corporation, an exclusive right to construct railroad tracks on all the streets of the city as then laid out, or that might thereafter be laid out for a period of 10 years.

4. A public street of a city cannot be destroyed even in part by the municipality, unless the authority to do so is conferred in express terms, or by necessary implication.

5. Under the powers conferred by statute (section 17, p. 248 McClel. Dig.), a municipality can alter a street by adandoning a portion of it when done, in the reasonable exercise of such authority for the public good.

COUNSEL

John A. Henderson and Hugh E. Miller, for appellant.

R. L Anderson, for appellee.

$The bill in this case was filed by appellee as complainant, against appellant as defendant. It alleges that complainant was incorporated for the purpose of operating and maintaining a street railroad in and near the city of Ocala, Fla., and that thereafter, in September, 1889, by an ordinance of the city of Ocala, a copy of which was attached to and made a part of the bill, as Exhibit A, complainant was authorized and empowered to build, maintain, and operate a line of railroad in, through, over, and upon all the streets, lanes, and alleys of said city, as the same were at that time laid out, and upon all such streets, lanes, and alleys as might thereafter be opened for a period of 10 years from the 18th day of September, 1889; that complainant accepted the terms and conditions of such ordinance, and then constructed a line of railroad along and over Magnolia and North Sixth streets, in said city, from the public square to the passenger station occupied by defendant in said city, and situated on North Sixth street, just west of the northern end of Magnolia street, and since the --- day of November, 1889, has continuously operated said line of street railroad for carrying passengers to and from said station; that on the --- day of May, 1891, said passenger station of defendant was destroyed by fire, and a new passenger station was afterwards erected by defendant, at a point about 25 or 30 yards to the eastward of the former location, in and upon the northern end of Magnolia street; that, in order to obtain permission of the city of Ocala to erect said passenger station upon the public street of the city, the defendant applied to the common council of said city, and thereupon, on the 4th day of August, 1891, an ordinance was passed which purports to convey the fee of the land over which Magnolia street had been laid out to defendant, and that, since the passage of said ordinance, the defendant has set up a claim, to the exclusion of complainant and the public generally, to all that portion of Magnolia street which lies north of North Sixth street. A copy of this ordinance is attached to and made a part of the bill, as Exhibit B.

Further, that, in order to carry on its said business of transporting passengers along and over the streets of said city, and in order to maintain said business, it is necessary that complainant's lines of rails be laid within a reasonable distance from the passenger station of defendant, and that after the destruction of the former passenger station used by defendant, and after the erection of the new passenger station upon the north end of Magnolia street, complainant changed the line of the road which ran to and from the former location of defendant's station, and laid the same over a portion of Magnolia street, lying north of North Sixth street, so that it might with ease and facility carry on its business of transporting passengers to and from said railroad station, and that said line was changed from the old location of defendant's station to the new station on or about the 17th day of September, 1892, and since that time complainant has been in actual, open, and notorious possession of that portion of Magnolia street lying north of North Sixth street covered by complainant's line of road, and since that time has continuously operated that portion of its line of road which reaches from North Sixth street to defendant's passenger station; that, by its acceptance of the terms and conditions of the ordinance conferring upon complainant the right to operate and maintain its line of railroad upon all the streets, lanes, and alleys in the city, it acquired a vested contract right to build, maintain, and operate its line of road over that portion of Magnolia street to which it now claims title, long prior to the passage of the ordinance under which defendant claims title; and, further, the said ordinance which purports to convey the title to a public street in the city for the private use and benefit of defendant is without authority of law, null, and void.

The bill further alleges that the defendant had tried to induce complainant to recognize the former's asserted rights of property in Magnolia street, and that negotiations in reference to a lease of the property had taken place between them, but without consummation, the details of which we do not deem necessary to state.

It is also alleged that defendant had notified complainant to immediately remove its said line of railroad from the tract of land to which defendant claims title, and that, if said line of road was not removed, it would remove the same by force; that, unless restrained, defendant would by force tear up and remove complainant's line of road from said tract of land; that complainant would be greatly damaged by the tearing up of its said line of road, and its business of carrying passengers to and from the station of defendant would be greatly injured, and the same would be, and continue to be, a hindrance to its business, and defendant could not be required to respond in damages by a suit at law in a sum adequate to compensate complainant for the consequent loss of traffic which would result from the destruction of its property.

The prayer is that defendant be enjoined from entering upon complainant's line of road lying on Magnolia street north of North Sixth street, in said city, and from tearing up and removing any portion of the same, and that the ordinance under which defendant sets up a claim of title to said portion of Magnolia street be declared to be void and of no effect in so far as the same purports to convey the title to that portion of Magnolia street lying north of North Sixth street, and in so far as the same restricts the rights of complainant and the public generally to use and occupy said portion of Magnolia street as a public thoroughfare.

The ordinances marked Exhibits A and B, and made part of the bill, are as follows:

Exhibit A.

'Be it ordained by the mayor and the aldermen of the city of Ocala:

'Section 1. That the Ocala Street and Suburban Railway Company, a corporation organized and existing under the laws of the state of Florida, its successors and assigns, be and it is hereby granted the exclusive right of way through all the streets, lanes and alleys of the city of Ocala, as at present laid out and hereafter to be opened for a period of ten years, for the purpose of building and maintaining lines of street railway and operating the same by horse power, steam, cable or electricity, as it may deem the most convenient and practicable; such grant of the right of way and the right to build, maintain and operate said lines of railway to be subject to the provisions to be hereinafter set forth.

'Sec. 2. That the right of way above granted shall not attach or become vested in said Ocala Street and Suburban Railway Company unless it shall begin the work of constructing said lines of railway in good faith within sixty days from the passage of this ordinance, and prosecute the same with reasonable diligence from time to time, and unless said Ocala Street and Suburban Railway Company shall within six months from date of passage of this ordinance complete and have in active operation some portions of said lines of railway not less than one mile in extent.

'Sec. 3. Said lines of street railway shall be constructed on a level with the present grade of the streets except where grading may be absolutely necessary, and must be so constructed as not to impede travel or obstruct the ordinary use of the streets, and shall be constructed of steel or iron rails of weight and size usual in the construction of street railways.

'Sec. 4. From and after the passage of

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