Indianapolis Cable St. R. Co. v. Citizens' St. R. Co.

• Decision Date: 19 June 1890
• Parties: Indianapolis Cable St. R. Co. v. Citizens' St. R. Co.
• Court: Indiana Supreme Court

127 Ind. 369

24 N.E. 1054

Indianapolis Cable St. R. Co.

v.Citizens' St. R. Co.¹

Supreme Court of Indiana.

June 19, 1890.

Appeal from superior court, Marion county; N. B. Taylor, Judge.

Shepard & Martindale, Hammond & Rogers, and Jas. B. Black, for appellant. H. C. Allen and Winter & Elam, for appellee.

Coffey, J.

This was an action, by the appellee against the appellant, brought for the purpose of enjoining the appellant from constructing a street railroad on certain streets in the city of Indianapolis, and to enjoin it from interfering with the appellee in its construction of a street railroad on said streets.

It is alleged in the complaint that the Citizens' Street Railway is a corporation organized under the laws of this state for the purpose of building, maintaining, and operating street railways propelled by animal power in the streets of the city of Indianapolis; that after the organization of said corporation the common council of said city, on the 18th day of January, 1864, passed an ordinance, section 2 of which, and by the terms of section 3 of a subsequent ordinance passed on the 18th day of September, 1865, said corporation was granted power and authority to construct and lay a single or double track for such railway lines upon and along the course of all the streets of the city of Indianapolis, including Meridian, Circle, Market, Georgia, and Alabama streets, and Home, Central, and Lincoln avenues; that, by the terms of said ordinance, said tracks were to be laid in the center of said streets, where practicable, except where a double track was contemplated, in which case the tracks were to be laid so as to make the center of said tracks the center of the street; that the grant of said right was to extend for the full term of 37 years; that said city was not to grant to any person or corporation any privilege which would impair or destroy the rights and privileges of said corporation; that said corporation promptly accepted said ordinance, and the other ordinances amendatory thereof and at once laid, and commenced operating, a system of street railways in the city of Indianapolis, and complied with the terms of said ordinance, and has never at any time given to the authorities of said city any cause of forfeiture, and has been continuously extending said system, at an expense of many hundreds of thousands of dollars, and has never abandoned any of its rights; that the appellee is a corporation organized for the purpose of constructing, maintaining, and operating street railways in the city of Indianapolis propelled by animal power, and that in April, 1888, it purchased from said Citizens' Street Railway Company all its property, of every nature and description, including its cars, tracks, rights, franchises, real estate, houses, mules, harness, etc., with a view to succeeding to the rights of said company in the continuation, maintenance, and operation of its system of street railways in said city; that in April, 1888, said city, by a duly-adopted ordinance, granted to the appellee all the rights, franchises, and privileges, of every nature and description, belonging to said Citizens' Street Railway Company in the streets of said city, and thereupon appellant took possession of all such property, rights, franchises, etc., and has ever since been operating the said road under and in accordance with the authority conferred on it by its charter from the state of Indiana, and by its contract with said Citizens' Street Railway Company, and by the said ordinance granting and confirming to it, as the successor of said Citizens' Street Railway Company, all the rights of said last-named company in the premises; that the appellant is a corporation organized under the laws of this state for the purpose of constructing, operating, and maintaining lines of street-cars in the city of Indianapolis, and is claiming the right to construct, operate, and maintain such lines of cars in said city, upon the streets hereinbefore named; that appellee has begun the construction of a line of street railway commencing and communicating with a track, or an existing and completed line, known as the “Illinois-Street line,” at the junction of Illinois and Georgia streets, extending thence east on Georgia street to Meridian, thence north on Meridian to Washington street, and connecting on Washington street with the Washington-Street line, and also, thence north on Meridian to Circle, thence east on Circle to Market, and thence east on the Market-Street line, and also, diverging at Maryland street from said Meridian-Street line, and extending thence east on Maryland street to Pennsylvania street, and thence north on Pennsylvania street to Washington street, and connecting with said Washington-Street line; that it has also commenced another line, commencing at the intersection of Pennsylvania and Market streets, extending thence east on Market street to Alabama, thence north on Alabama street to Home avenue, thence east on Home avenue to Central avenue, and thence north on Central avenue to the state fair grounds; that on said last-named line it has done a large part of the work for the construction of the same, and is still at work prosecuting the same with the greatest diligence; that on Tuesday, the 24th day of July, 1888, it commenced work on said Georgia & Meridian Street line, and is diligently prosecuting the same; that by the contract, as set forth in said ordinances, it is required to lay its said tracks in the center of said streets, and in case of double tracks the same must be laid at such distance from the center of said streets as will make the central point between the two tracks the center of the street; and that, under its said contract and ordinances, it has no right to lay said tracks at any other points in said streets; that the appellant, claiming to have authority or license from said city, has entered upon some of the same streets, to-wit, Meridian and Market streets, and is threatening to enter upon others of said streets, and is building, and is threatening to build, a double track street railroad in the center of said streets, occupying precisely the same ground that the appellee is required by its ordinance to occupy, and is thereby seeking to, and will, if it is permitted so to lay its tracks, and to maintain the same, exclude the appellee from the use of said streets; that in 1877 said city, by an ordinance duly passed, granted, or attempted to grant, to appellant, the right to build and operate a line of street-cars on Meridian, Circle, Market, and Alabama streets, and on Home and Central avenues, the same to be operated as cable cars,-that is, being cars propelled by a cable revolving under ground, and moved by a stationary steam-engine at the termini of said lines; that long before it attempted to lay any track on said streets, or any of them, it disclaimed any purpose to accept said ordinance or license, and refused to accept the same; that on the ------ day of June, 1888, it did enter upon Meridian street between Circle and Maryland streets, and proceeded to construct along the center of said street, upon the very ground the appellee is entitled to occupy, a double track line to be used and propelled by animal power, or possibly by electrical motors; and at the time it thus tore up said street, and constructed its track thereon, it had no license or authority whatever in the premises, to build any line whatever, except said cable line, which it disclaimed any purpose of building; that on the ------ day of ------, 1888, said city passed an ordinance authorizing the appellant to build a line of street railroad on said streets to be operated by electric motors, the wires for said motors to be under ground; that said ordinance was general in its terms, simply permitting said lines on said streets, and not specifying the parts of said streets to be occupied by said lines; that after the appellee had commenced, as it had the right to do, to build its said tracks on Georgia and Meridian streets, and on the other streets named, the appellant commenced to tear up said streets, and commenced laying track on Market and Meridian streets, and is threatening to lay its said track on the other streets hereinabove named, along the center of the same, thereby excluding the appellee from said streets.

The appellant filed an answer in two paragraphs, and also a counter-claim, and on a subsequent day filed a third paragraph of answer; but, as no question is made on these pleadings, they need not be set out. The appellee also filed a second paragraph of complaint, but we deem it unnecessary to refer now to the allegations contained therein, as all the questions arising on this paragraph arise upon the special finding of facts hereinafter referred to in this opinion.

Upon issues formed, the cause was tried at special term of the superior court, resulting in the granting of a perpetual injunction against the appellant, from which it appealed to the general term, and assigned error. The judgment of the special term was affirmed, from which the appellant appeals to this court. The court at special term made a special finding of the facts in the cause, and stated its conclusions of law thereon. In this special finding is set out the several ordinances of the city of Indianapolis under which the respective parties to this suit claim the right to construct and operate street railroads on the streets of said city.

It appears by the special finding of facts in this cause, among other things, that on the 18th day of January, 1864, the common council of the city of Indianapolis passed an ordinance by which it granted to the Citizens' Street Railway Company of Indianapolis, and its successors, the right to lay a single or double track for passenger railway lines, with all necessary and convenient tracks for turn-outs, side tracks, and switches, in, upon, and along the course of the streets and alleys of...