Haskell v. Denver Tramway Co.

• Decision Date: 18 May 1896
• Court: Colorado Supreme Court
• Parties: HASKELL v. DENVER TRAMWAY CO. et al.

46 P. 121

23 Colo. 60

HASKELL v. DENVER TRAMWAY CO. et al.

Supreme Court of Colorado

May 18, 1896

Error to district court, Arapahoe county.

Action by Otis L. Haskell against the Denver Tramway Company and another. There was a judgment sustaining a demurrer to the complaint, and dismissing the action, and plaintiff brings error. Affirmed.

J. P Brockway and H. E. Luthe, for plaintiff in error.

A. M Stevenson, for defendants in error.

CAMPBELL J.

The plaintiff brought this suit to restrain the defendant companies from building and operating that portion of their line of street railway hereinafter particularly described. Upon the filing of the original complaint a temporary restraining order was issued, without notice to the defendants, according to the prayer of the complaint. To the complaint an answer was filed, and upon the hearing of an application therefor, based upon these pleadings, an order was made dissolving the preliminary writ. An amended complaint was thereupon filed, the sole object of which, apparently, was to secure the same kind of relief asked in the original complaint. To this amended complaint the defendants filed a general demurrer, which was sustained by the trial court, and the action was thereupon dismissed. It is to this ruling that the plaintiff prosecutes his writ of error here. The pleadings disclose the following facts The defendants are corporations organized under the general laws to build and operate street railroads in Arapahoe county, and own and (under an ordinance of the city of Denver granting such franchise) operate in the city an extensive system of street railways, composed of a number of distinct lines, cable power and electricity being the motive powers all of which center at, and the cars running over these various lines depart from and return to, a so-called central station, over and by means of a loop, the course and location of which are described in the pleadings. Arapahoe and Lawrence streets are parallel public streets in the city of Denver, running easterly and westerly, and are intersected at right angles by Fourteenth and Fifteenth streets, running northerly and southerly. Bounded by these four streets is block No. 74 in East Denver. The plaintiff owns lot 10 in said block, upon which there is a building used as an hotel. This lot, 25 feet in width, fronts on Lawrence street, and extends back 125 feet to the alley running through the center of block 74 from Fourteenth to Fifteenth streets. The defendants bought lot 9 in this block, which immediately adjoins plaintiff's lot, and they also bought a similarly situated lot in the same block, facing upon Arapahoe street and extending back therefrom to the said alley. Defendants, under permission granted by said ordinance of the city, proposed to build, maintain, and operate their double line or track of street railway passing through the said block, and over and across said lot 9 and said similarly situated lot in the same block facing upon Arapahoe street, so as to form a loop consisting of a continuous line of railway extending from a point in the center of Fifteenth street, where the same is intersected by Arapahoe street, passing therefrom down Fifteenth street to Lawrence street; thence through Lawrence street to a point opposite and fronting said lot 9; thence across the sidewalk, and over said lot 9 and the similarly situated low immediately to the rear thereof, and passing into Arapahoe street; and thence along the middle of Arapahoe street to the place of beginning. This loop was constructed so as to provide a convenient way or track upon which all the cars of the defendants' different lines were to be made to pass in going from and returning to the central station of the system, and this loop seems to be well adapted for that purpose. The plaintiff's theory is that the maintaining and operating of this loop was and is an unlawful interference with, or an obstruction of, his right of ingress and egress to and from his premises by way of the said alley, street, and sidewalk, and that he is entitled to an injunction to restrain defendants from operating such portion of their system. The objection is to that portion of defendants' loop which extends from the middle of Lawrence street across the sidewalk, and over these two lots and the alley between them. The defendants are the owners of lot 9 and the similarly situated lot facing Arapahoe street in the same block. The fee in this street and alley is not in the plaintiff. It is in the municipality, in trust for the use of the public. For the purposes of their loop, the defendants do not threaten or propose to take the fee therein, or the fee of any property belonging to the plaintiff, or the right of way over any of the plaintiff's premises. The only property right which he himself claims will be impaired is the easement or right of ingress and egress to and from his premises, which...