Kipp v. Davis-Daly Copper Co.
| Decision Date | 06 July 1910 |
| Citation | 110 P. 237,41 Mont. 509 |
| Parties | KIPP et al. v. DAVIS-DALY COPPER CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by Louis Kipp and others against the Davis-Daly Copper Company. From a judgment for plaintiffs, defendant appeals. Reversed.
Lamb & Walker, Charles R. Leonard, and M. S. Gunn, for appellant.
C. M Parr and Kremer, Sanders & Kremer, for respondents.
This action was brought to obtain an injunction to restrain the defendant corporation from constructing and operating a line of railroad upon and along Ohio and Mercury streets, in King's addition to the city of Butte. Mercury street is one of the principal thoroughfares of the city, extending through it from east to west. Throughout the portion in controversy here it is 50 feet in width. The plaintiffs own lots abutting thereon on both sides, with a frontage in the aggregate of 1,000 feet. The defendant is a mining corporation, organized under the laws of the state of Maine owning mines within the limits of the city and having its principal business in the city. On February 16, 1910, the city council, upon petition of defendant, enacted an ordinance granting to it the privilege of laying a line of railroad, with the necessary tracks, along Ohio street from its operating shaft upon the Colorado claim, 360 feet south to the intersection of Ohio and Mercury streets; thence 675 feet east along Mercury street, to a point beyond plaintiffs' property opposite other mining property belonging to the defendant; thence south through the latter to connect with a spur track of the Northern Pacific Railway Company, within the limits of the city. The ground for asking the privilege, as stated in defendant's petition to the council, was that it was engaged in operating and developing the Colorado mine; that a large quantity of ore and rock was being extracted daily; that it was possessed of no means by which this material could be conveyed away and supplies be delivered to the mine, except teams; and that it desired the privilege in order that it might readily effect the necessary transportation and secure connection with the spur track of the Northern Pacific Railway Company. The ordinance requires the tracks to be not wider than four feet between the rails, to be laid upon, and conform to, the grade of the street, and to be planked between the rails and on the outside thereof to the extent of one foot, under the supervision of the city authorities, so as to obstruct or impede travel over the streets as little as possible. It prescribes the character of cars which may be used, limiting the number to be run at any one time to three, and the maximum rate of speed for their movement; permits the use of any motive power other than steam by direct application, reserves in favor of pedestrians and vehicles the right of way at crossings and in passing over the street, and declares with much particularity numerous requirements which must be observed by the defendant. It further provides that the track or tracks shall not remain on Ohio street longer than six months. At or before the expiration of that time the track or tracks must be removed to defendant's own property lying to the west of Ohio street and extending from the shafthouse south to Mercury street, a suitable connection to be made of this line with the line on the latter street. At the end of five years the use must be discontinued altogether, and the tracks removed. A condition of the grant is that the defendant shall carry "all ores, freight, coal, wood, timber, supplies, goods, wares and merchandise which shall be requested of the grantee herein by any person or corporation desiring to utilize the carrying facilities of said grantee, such carriage to be done in a reasonable manner and at reasonable times and for a reasonable compensation. *** under the supervision and subject to the approval of the city council." The defendant is required to accept the grant in writing and to accompany its acceptance with a good and sufficient bond in the sum of $5,000, to be approved by the city council and conditioned to save the city harmless in case it shall be held liable for damages to any person by reason of the construction and maintenance of the railroad or of any act of negligence or carelessness in the management or operation thereof by the defendant or its successors or assigns. Upon the failure of the defendant to observe any of the requirements enumerated, the privilege granted may, upon notice by the council and at its option, be declared forfeited.
In addition to the foregoing, the complaint alleges, in substance, that the plaintiffs have property rights in Mercury street, in front of their respective lots, subject only to the right of the public to use the same as a highway; that the defendant has not, by an attempt to exercise the right of eminent domain, sought to condemn the plaintiffs' rights or to acquire them by agreement or purchase; that unless it is restrained from doing so, it will proceed to appropriate for its railroad and use a large part of them without compensation to plaintiffs; that it is a mining corporation and is engaged exclusively in mining; that the line of road which it proposes to build under the grant from the city is a private line, to be owned and operated by it for its own use and benefit, and not otherwise, for hauling ore, rock and other materials taken from the Colorado mine, and delivering thereat supplies for its own private use; that if the railroad is constructed and equipped as is proposed by the defendant, it will prevent the plaintiffs from having free access to, and free use and enjoyment of, their property, and, by imposing an additional burden upon the street, diminish the value of their property; that defendant is a private corporation and has no right to use or occupy the streets of the city, nor any right to build or maintain a railroad thereon for its own use or benefit; that the city has not the power to grant to it a right or license to use the streets, or any of them, for that purpose; that the railroad is not necessary for the convenience of the public, and that the ordinance granting the right to defendant to construct and maintain it is unreasonable, and therefore void. The prayer is for a perpetual injunction. Upon the filing of the complaint the court issued an order to show cause, and, after a hearing upon the complaint and oral evidence, entered an order directing an injunction to issue as prayed. The appeal is from this order.
The question presented for decision is stated by counsel for appellant in their brief as follows: "If the construction and operation of the street railroad described in the ordinance is within the purposes for which the streets were established, the respondents have no cause of action. Abutting owners may suffer inconvenience, and their property may be depreciated in value by the use of the street for certain purposes, but if such use is legitimate and one which was in contemplation, or is presumed to have been in contemplation, when the street was created, there is no legal cause for complaint. There is, then, but one question for consideration on this appeal, which may be stated as follows: Is the construction and operation of the street railroad in question within the purposes for which the streets were dedicated?
Under the statute (Rev. Codes, § 3259) a city or town council has exclusive control over the streets, avenues, alleys, and sidewalks of the city or town, and the power to regulate the use of them, not only for purposes of travel therein by pedestrians, but also by vehicles of every character for the purpose of pleasure or business traffic. Under subdivision 66 of this section, it also has the power "to grant a right of way through the streets, avenues and other property of a city or town for the purpose of street or other railroads and to regulate the running and management of the same, and to compel the owner of such street or other railroad to keep the street in repair when occupied by such street or other railroad; to regulate the speed of railroad engines, and to require railroad companies to station flagmen at street crossings." This provision carries out the plain intent of section 12 of article 15 of the Constitution, which declares: "No street or other railroad shall be constructed within any city or town without the consent of the local authorities having control of the street or highway proposed to be occupied by such street or other railroad." Under another provision of the Codes, the fee to the land covered by a street once established, is vested in the public; for the form of dedication required of the owner, when the plat of the city or town or an addition thereto is recorded, is equivalent to a deed. Rev. Codes, § 3740; Hershfield v. Rocky Mt. Bell Tel. Co., 12 Mont. 102, 29 P. 883. But it is not important to inquire where the fee is vested. The respective rights of the abutting owner and the public are dependent upon the fact of dedication. In view of these provisions as well as of the rule of law recognized everywhere, the authorities which control streets and highways may use or permit the use of them in any manner or for any purpose which is reasonably incident to the appropriation of them to public travel and to the ordinary uses of streets or highways under the different conditions which arise from time to time. White v. Blanchard Bros., 178 Mass. 363, 59 N.E. 1025. For a highway is created for the use of the public, not only in view of its necessities and requirements as they exist, but also in view of the constantly changing modes and conditions of travel and transportation, brought about by improved methods and required by...
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