Northern Pac. R. Co. v. City of Spokane

• Citation: 64 F. 506
• Decision Date: 23 October 1894
• Docket Number: 138.
• Parties: NORTHERN PAC. R. CO. v. CITY OF SPOKANE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

64 F. 506

NORTHERN PAC. R. CO. v. CITY OF SPOKANE et al.

No. 138.

United States Court of Appeals, Ninth Circuit.

October 23, 1894

Ashton & Chapman and J. R. McBride, for appellant.

James Dawson and George Turner, for appellees.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District judge.

GILBERT Circuit Judge.

The Northern Pacific Railroad Company brought a suit against the city of Spokane and others to restrain and enjoin the defendants from laying out and extending a certain street known as 'Mill Street,' over and across the right of way of the complainant's railroad in said city. The bill alleges that by virtue of the act of congress approved July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the Northern route,' and the several acts amendatory and supplemental thereto, there was granted to the complainant a right of way through the public lands, to the extent of 200 feet in width on each side of its road, wherever it may pass through the public domain, and that there was further granted to the complainant, for aid in the construction of its road among other lands, section 19 township 25 N., range 43 W., upon which that portion of Mill street in controversy in the suit is situated; that since the construction of the complainant's road, and for more than eight years prior to August 4, 1889, the complainant maintained its freight station building on that portion of its right of way lying north of its track in said section 19 covering the land in controversy, and that on or about said last-named date the freight sheds and freight station buildings were destroyed by fire, but that within a few days thereafter the complainant rebuilt the same, with the knowledge and acquiescence of said city and its officers that the said city claims to have some right or interest in the ground, and the right to occupy the same as a street, but that the city has no right thereto, and has taken no steps as required by law to authorize its occupation thereof for any purpose, but that the said city, through its counsel, has declared its intention to summarily tear down and remove said buildings, and to open the said Mill street across the complainant's premises. The defendants answered, in substance, that the complainant had dedicated said strip of land to the public as a street on the 20th day of January, 1881, and that the public had continuously used the same from that time. Upon these issues testimony was taken. Upon the trial the court found that the street had been so dedicated by the complainant and used by the public, and thereupon the bill was dismissed. Upon the appeal the complainant contends-- First, that the record contains no competent evidence showing a dedication; and, second, that the complainant had no power to dedicate any portion of its right of way for street or other public purposes.

So far as the facts are concerned, it is reasonably clear that the railroad company dedicated the land in controversy to the public for street purposes. The evidence is that about the year 1880 or 1881, after the town of Spokane had been laid out and platted by the original town-site proprietors, and the railroad company laid out what is known as 'Railroad Addition,' adjacent to the original town, and, by agreement with the original town-site proprietors, made the streets of the addition conform to those of the original town, continuing the streets and the names thereof through the addition and across the right of way, and thereupon filed a plat of the addition, upon which its right of way was designated as 'Railroad Street,' and certain streets were platted as crossing the same, among which was Mill street. There is no indication upon the plat that it was the intention of the railroad company to close Mill street where the same crosses Railroad street, but, on the contrary, the lines of the plat show Mill street to be open across Railroad street. In the words of dedication which accompany the plat, however, the railroad company used the following language:

'The streets shown upon said plat are dedicated to the use of the public until vacated, except that strip of land, 225.7 feet in width, designated as 'Railroad Street,' which is reserved for the tracks and uses of said railroad company.'

It is contended that the words of reservation concerning Railroad street operate to except from the dedication all the land contained within the north and south lines of that street and to cut in twain the streets which upon the plat are indicated as crossing the same. It is obvious that the plat and the words of dedication are to be construed together in arriving at the intention of the dedicator. Within this rule of construction in view, it is clear that...