Omaha Horse Ry. Co. v. Cable Tramway Co.

• Decision Date: 25 October 1887
• Citation: 32 F. 727
• Parties: OMAHA HORSE RY. C. v. CABLE TRAM-WAY CO. of OMAHA. [1]
• Court: U.S. District Court — District of Nebraska

32 F. 727

OMAHA HORSE RY. C. v. CABLE TRAM-WAY CO. of OMAHA. ^[1]

United States Circuit Court, D. Nebraska.

October 25, 1887

G. E Pritchett, Thurston & Hall, and J. M. Woolworth, for complainant.

J. C Cowin, for defendant.

BREWER J.

This case is now submitted on exceptions by both parties to the report of the commissioners, and on certain motions and applications connected therewith. A brief review of the facts connected with this litigation will help to clearly understand the present questions. The plaintiff holds under special charter, granted by the territory of Nebraska, an exclusive franchise for the building and operating of a horse railway in the city of Omaha, for a period of 50 years from the first of June, 1867. At the commencement of this suit it had constructed and in operation over 18 miles of railway. The defendant is a corporation organized under the general acts of the state of Nebraska, and having received permission from the city of Omaha, at an election held therefor, commenced the construction of a cable tram-way on certain streets therein. This bill was filed to enjoin such construction on the ground that it infringed upon the exclusive franchise of plaintiff. After examination, I held that the exclusive rights of plaintiff were limited to a mere horse railway, and did not include all modes of street railway carriage, and therefore that the defendant was not infringing upon such exclusive rights. I also held that, as the constitution of Nebraska forbade the taking or damaging of private property for public use without just compensation therefor, the plaintiff was entitled to recover of the defendant any proper damages sustained by the construction of such cable tram-way and I directed that a commission be appointed to examine and report such damages. That commission was named by my brother DUNDY, made their examination, heard all the testimony that was offered by either party, and in June last filed their report.

One motion of the defendant is to dismiss these proceedings with reference to the assessment of damages, on the ground that this court has no jurisdiction of such matter. Both parties are citizens of Nebraska, and the jurisdiction of this court was invoked on the ground that the state of Nebraska had passed a law impairing the obligation of its charter contract with the plaintiff. That question having been decided against the plaintiff, defendant insists that the case necessarily went out of this court; that the matter of damages is a question purely under state laws of which this court could not take jurisdiction. It further insists that the prayer for relief in plaintiff's bill, being for an injunction, is not broad enough to include the assessment of damages. I think the defendant is wrong in both of these propositions. It is the settled law of the supreme court that, when a case is presented involving a federal question, the jurisdiction of the court attaches to the whole case, and is not limited to the mere decision of that single federal question. Tennessee v. Davis, 100 U.S. 257; Railroad Co. v. Mississippi, 102 U.S. 135. In this last case, Mr. Justice HARLAN, speaking for the court, says that it is settled in that tribunal--

'That it is not sufficient to exclude the judicial power of the United States; but, wherein a question to which the judicial power of the Union is extended by the constitution forms an ingredient in the original causes, it is within the power of congress to give the circuit courts jurisdiction of that case, although other questions of fact or of law may be involved in it.'

Counsel's suggestion that any case might be brought in this court by the mere assertion of a right under the federal constitution, is easily answered. No mere assertion that a federal question exists, or that a right is claimed under the federal constitution, is of itself sufficient to give jursidiction; it must appear that there is some real, substantial federal question involved. Again, inasmuch as the prayer for relief contains also the general prayer for other and further relief, it is familiar law that the court may award such other relief as is justified by the facts stated in the bill, and may fairly have been considered within the contemplation of the parties in the litigation. This motion of the defendant must therefore be overruled.

On the other hand, plaintiff asks, practically, that the court change its decree heretofore rendered, and grant an absolute injunction; and this on the ground that the court has found that the plaintiff's property would be damaged by the construction of defendant's tramway; and that, under the clause in the Nebraska constitution heretofore referred to, it is entitled to compensation therefor. Plaintiff urges that no right of eminent domain has been granted to defendant, that the same section of the Nebraska constitution prohibits the taking and the damaging of private property for public use, without just compensation, and that as no private property can be taken for public use by any party to whom the right of eminent domain has not been given, so no private property can be damaged except under the same circumstances; and hence that, unless the parties voluntarily agree upon the amount of compensation, the construction of the tram-way should be absolutely enjoined. I think this is an error. In the first place, the Nebraska constitution does not require payment in advance for either the taking or damaging of private property for public use; in the second place, defendant has obtained from the owner of the soil the right to occupy the streets, and none of the plaintiff's property is taken. In the third place, the supreme court of Nebraska in two cases (Railroad Co. v. Reinhackle, 15 Neb. 279, 18 N.W. 69, and Railroad Co. v. Fellers, 16 Neb. 169, 20 N.W. 217,) have drawn the proper distinction between cases of taking and those of damaging property, and held that the statutory provisions apply simply to the case of taking, and that in the other case an action for damages will lie.

Defendant also moves the court to send the hearing back to the commissioners, or to a master, in order that it may offer additional testimony upon one point, and that is as to the number of passengers which daily get on or off plaintiff's cars on those streets, or portions thereof, in which plaintiff's tracks are paralleled, or proposed to be paralleled, by the defendant's tram-way. It urges in support of this that it had but brief notice of the meeting of the commissioners, and that it had no knowledge of what matters the commissioners were going to consider in forming their estimate of the amount of the damages. To this it may be replied that it asked no delay from the commissioners, it offered all the testimony which it then desired, and that this matter was plainly called to its attention in the opinion of the court directing the appointment of the commissioners. The conclusions to which I have come in reference to the report of the commissioners suggest also additional reasons for overruling this motion.

And now I come to the report of the commissioners, and, without naming in detail the various exceptions of the two parties, respectively, I shall notice the facts, make some comments on the question of damages, and state the conclusions to which I have come.

Referring to the facts as heretofore stated, the plaintiff has 18 miles of railway. It also owns 62 cars, about 50 of which are in daily use; the daily carriage of passengers ranges from 15,000 to 18,000 persons; the average daily receipts in summer are about $800; those in June last, estimating the last three days as equal to the others, amounted to $24,874.17; in winter the receipts are about 25 per cent. less; the operating expenses are from 50 to 60 per cent. of the earnings; the value of the track varies from $10,000 to $12,500 per mile. It will thus be perceived that the net earnings run from $200 to $400 a day. The franchise of the plaintiff includes all the streets, with perhaps a single exception; the permission to the defendant cover only a limited number of streets; the commissioners, besides hearing all the testimony that either party offered, made a personal examination of the various lines, completed and projected, of both parties; the defendant's tramway crosses the plaintiff's track in one or two places; the commissioners considered that these crossings worked no damage, and allowed nothing therefor. They arrived at their estimate of damages in this way: As heretofore stated, in two places, and for a few blocks in each, the defendant's tram-way occupies the same street as the pliantiff's track, being placed in that portion of the street between the plaintiff's track and the sidewalk. Passengers going to the plaintiff's cars must cross the defendant's tram-way over which will be passing, with more or less speed and frequency, defendant's cable cars. This naturally would operate to prevent some from seeking plaintiff's cars, when by the use of defendant's cars they can be carried to the same, or nearly the same, place. This inconvenience of accessibility was considered a legitimate matter of damage and compensation. They state their conclusions as to one place in this way:

'We find the average number of passengers traveling upon the cars of the

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