Ogden City Railway Co. v. City of Ogden

• Decision Date: 01 April 1891
• Citation: 26 P. 288,7 Utah 207
• Court: Utah Supreme Court
• Parties: OGDEN CITY RAILWAY CO., APPELLANT, v. OGDEN CITY, AND OTHERS, RESPONDENTS

26 P. 288

7 Utah 207

OGDEN CITY RAILWAY CO., APPELLANT, v. OGDEN CITY, AND OTHERS, RESPONDENTS

Supreme Court of Utah

April 1, 1891

APPEAL from a judgment upon demurrer of the district court of the first judicial district.

The complaint alleged the grant to the Ogden City Railway Co. made August 7, 1883, which was exclusive, and the acceptance and performance of the conditions thereof by the grantee that the plaintiff had acted on the grant, and expended large sums of money, issued bonds, and built its tracks, etc.; that "plaintiff owns a valuable tract of land on Washington avenue, and pays taxes on a large amount of real estate and personalty; that said Twenty-fifth street, from the depot to the junction with Washington avenue, and Washington avenue are the main business streets of the city, and on these plaintiff has a single track with sidings and turnouts, and has the right to, and will lay another track thereon; that these two tracks will require about twenty feet of space in the center of said street; that if two additional tracks, as threatened, are placed upon said streets it will so obstruct them as to greatly interfere with travel thereon, and there will not be space enough for the ordinary business, and for vehicles to pass and repass, and that if poles and wires are strung as threatened, in front of property owned by plaintiff, it will prevent the ingress and egress to plaintiff's property on Washington avenue, and greatly damage it in value." Then followed the ordinance, set out in haec verba, granting the franchise to the defendants that the city council had not the power to pass this ordinance, for the plaintiff's franchise was exclusive that the existence of said ordinance upon the records of the city is a cloud upon the title to plaintiff's railroad property, and "if not declared void will work great and irreparable injury in this: that the contract obtained by plaintiff from the city of Ogden, together with its line of railways, have become a valuable property, and the said bonds issued by plaintiff are a profitable security, and the existence of this ordinance will greatly depreciate the value of plaintiff's property and security, and will deprive plaintiff from the realization of money from the sale of its second mortgage bonds, which are intended as a fund to perfect and extend its system of street railway;" then the complaint alleged that certain of the defendants "threaten and intend, by virtue of the said ordinance, to enter upon said Twenty-fourth, Twenty-fifth, Twenty-second streets and Washington avenue, and other streets now occupied by plaintiff with its street railway, and build thereon two additional tracks with necessary appliances to an electric street railroad, thereby interfering with the operation of plaintiff's road and endangering the lives of its passengers, employes, and the lives of the horses and mules used in operating the road, and interfering with the public use and travel over said streets." The complaint prayed an injunction against the defendants from proceeding, and that the ordinance granting a franchise to the defendants be declared null and void. The defendants all joined in a demurrer to the effect that the complaint did not state facts sufficient to constitute a cause of action. The remaining facts appear from the opinion.

Affirmed.

Messrs. Rhodes and Hudson, for the appellant.

Mr. A. R. Haywood, Mr. H. P. Henderson, and Mr. Ogden Niles, for the respondents.

ZANE, C. J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

ZANE, C. J.:

The complaint filed in the court below in this case, among other things, alleged that on August 7, 1883, the city council of Ogden City adopted an ordinance granting to the plaintiff permission to lay down a doubletracked street railway on Twenty-fifth street and Washington avenue, and that in June 1890, the city, upon certain conditions named in the ordinance, gave the defendants permission to construct a double-track railway on the same streets, to be operated by electricity; that these are the main business streets of the city; that the plaintiff had constructed on them a single track, with turnouts; that, if it were to lay down another, the two would occupy about twenty feet in width; and that, if two additional tracks, as threatened by the defendants, should be laid down, the streets would be so obstructed by the four tracks as to greatly interfere with other modes of travel; and that, if poles and wires, as threatened, should be placed in front of the property owned by plaintiff, it would be seriously damaged thereby. The complaint prays that the ordinance granting the permission to defendants to lay down their tracks may be declared null and void so far as it purports to grant to defendants any right to construct their road on the streets, and that they be enjoined from filing the bond exacted as one of the conditions of the permit. A prayer...