Pearson v. Twohy Bros. Co.

• Decision Date: 18 November 1924
• Citation: 113 Or. 230,231 P. 129
• Parties: PEARSON v. TWOHY BROS. CO. ET AL.
• Court: Oregon Supreme Court

231 P. 129

113 Or. 230

PEARSON v. TWOHY BROS. CO. ET AL.

Supreme Court of Oregon

November 18, 1924

In Banc.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Alexander Pearson against the Twohy Bros. Company and the Oregon-Washington Railroad & Navigation Company. From judgment of involuntary nonsuit, plaintiff appeals. Reversed and remanded.

James R. Bain, of Portland (Olson & Bain, of Portland, on the brief), for appellant.

Wilson & Guthrie, of Portland, for respondent Twohy Bros.

A C Spencer and John Reilly, both of Portland, for respondent Oregon-Washington R. & Nav. Co.

BURNETT J.

For many years the defendant, Oregon-Washington Railroad &amp Navigation Company has owned and operated a railroad running easterly out of the city of Portland in Sullivan's Gulch. When the scheme of improvement here involved was inaugurated several streets crossed the railroad track at grade. The city of Portland is a municipal corporation, the legal voters residing in which have authority to make or amend its charter, where formerly such instrument was enacted by the Legislative Assembly of the state. In other words, within the scope of municipal government it is practically an autonomy

At all times involved in this litigation, the council of the city had power and authority, subject to the limitations and restrictions of the charter:

"To exercise within the limits of the city of Portland all the powers commonly known as the police power, to the same extent as the state of Oregon has or could exercise said power within said limits." Portland Charter, § 73, subd. 1.

Operating under this power, the council, by ordinance, declared nine grade crossings of the railroad in the eastern part of the city to be dangerous, and directed the city engineer to prepare plans, specifications, and estimates of costs for their elimination. The general feature of the project was to lower the existing grade of the railroad company at the crossings an average of 11 feet, and to raise the street level at those points correspondingly so that the trains of the company could go under viaducts to be erected there. In these intersections were various sewers, water mains, and gas mains. The water mains were owned by the city as part of its Bull Run water system, and the sewers were also city property. After the plans and specifications were prepared by the engineer and submitted to the council, they were amended in various particulars, and an ordinance was regularly enacted, adopting them as thus altered. The city retained the power of building the viaducts, lowering the water mains and sewers, and required the owners of the gas mains to lower them to a certain subgrade. The following provisions appear in the specifications adopted by the ordinance:

Article I, § 3:

"Regrading the right of way, or such portions of the right of way as may be desired by said railroad company, outside the lines of streets where viaducts are proposed to be built under these specifications and the accompanying plans, shall be performed by the Oregon-Washington Railroad & Navigation Company, and shall be directly paid for by said company.

"It is specifically provided that the excavation of said company for regrading their right of way shall conform to the plans and profile attached hereto, in that the finished grade of the railroad tracks shall be so laid that foundations of sewers, new viaducts, water mains, gas mains, or any other public utilities, shall in no manner be endangered nor interfered with, and shall be to the satisfaction and approval of the engineer."

Article I, § 4:

"(a) Contract. A contract will be let by the council for the construction of all subways. temporary viaducts, permanent viaducts, and their approaches complete, ready for the traffic for which they are designed, and for the removal and relaying of all water services and mains, and for the relaying and extension of sewers, sewer services, and inlets affected by the regrading operations; all water main operations subject to supervision by the bureau of waterworks of the department of public utilities of Portland.

"(b) East Sixtieth Street Mains. It is especially conditioned that the thirty (30) inch water main laid in East Sixtieth street shall be removed and relaid in subway to be constructed for that purpose prior to the commencement of physically regrading the roadbed of the said railroad company. When the thirty (30) inch water main shall have been reinstalled in service, the operation of removing and relaying all other water mains may proceed simultaneously with regrading operations."

Article XXXVIII contains provisions for read-justment of all water mains which cross the tracks of the railroad company, and for relaying them under the tracks or removing them from such a situation, as the case may be, involving work upon and under the railway tracks.

Article I, § 1:

"A contract will be let by the city of Portland, Oregon, covering the furnishing of all materials and the construction of all viaducts, both temporary and permanent, together with all approaches thereto, the excavation of the railroad prism under all permanent viaducts, the construction and reconstruction of all sewers and their appurtenances affected by the operations, and the removal and replacement of all water mains affected by the operations, upon which a time limit is set and a per diem bonus is offered for the completion of the work prior to expiration of the said time limit and a per diem sum as liquidated damages contracted for, upon each day necessary to complete the entire contract after the expiration of the time limit set."

Article XXIII, § 3:

"Excavations for the installation of the subways shall be made to line and grade, which shall be of sufficient size in which to build forms and brace the trench, and shall be made in conformity with section 1 of this article. Price bid for this excavation shall include the blocking and alignment and gradienting of water mains and removal of blocking when subways shall have been completed."

Article XXIII, § 5:

"At the location of each of the permanent viaducts, and within the lines given by the engineer, the prism for the full number of railroad tracks for which the viaduct is designed shall be excavated to the subgrade of the railway tracks, and shall be deposited in successive layers or courses in the approaches, as is provided in section 1 of article XXIV of these specifications, for which a price shall be paid as foundation excavation, measured in excavation only."

The city let a contract to the plaintiff for the performance of such work in the enterprise as the city reserved to itself. About the same time, the railroad company let a contract to the defendant Twohy Bros. Company for excavating the part required to be excavated by the railroad company. The plaintiff claims that the defendant railway company and Twohy Bros. interfered with his work, hindered and delayed him, doing great damage to him, particularly that they excavated the prisms that he was required to excavate, and, instead of placing the earth therefrom upon the approaches in the particular street from which the excavation was made, they carried it away and disposed of it in a fill in Mock's Bottom, some miles from the improvement. The answers of the defendants avowed the taking of the earth from the prisms, and claimed that the soil thus excavated was exclusive property of the railway company, and made other defenses to the remaining grievances of the plaintiff.

After a long trial, piling up an excessively ponderous record, the circuit court, on motion of the defendants, entered a judgment of involuntary nonsuit against the plaintiff, and he appealed.

The principal bone of contention in the case relates to the prisms. All other contentions are closely related to that matter. The prisms, so called, consist of the earth within a parallelogram formed by the parallel lines of the railroad company's right of way and the boundaries of the several streets where the right of way and streets cross each other. Vested, as it is in its autonomous charter, with the police power, it is clearly within the authority of the city to declare those grade crossings to be dangerous, and to provide for their elimination. According to Cleveland v. City Council, 102 Ga. 233, 29 S.E. 584, 43 L. R. A. 638, laying out a highway across a railroad right of way without award of damages to the company--

"proceeds upon the theory that land already taken for a public use may be taken by proper authority for other public uses; and when so taken, it is presumed that the second use is not inconsistent with or destructive of the former use. * * * It is the railroad which makes the construction of a railroad crossing necessary, whether the highway be laid out before or after the construction of the railroad."

The case goes on and sets forth the doctrine that a railroad is constructed subject to the right of public authorities to require such changes in grade, overhead crossings, and the like, as the public safety and convenience may require from time to time. This case depended upon a Georgia statute and the question was whether the change of grade in the railroad, to correspond with the raising of the street grade, should be made at the expense of the company or of the city, and the court concluded with these words:

"We know of no law whereby a corporation or natural person can recover damages on account of being compelled to render obedience to a public regulation designed to secure the common welfare."

Chicago, Milwaukee & St. Paul Railway Company v. Minneapolis, 232 U.S. 430, 34 S.Ct. 400, 58 L.Ed. 671, contains this syllabus:

"Railroad corporations may be required, at their own expense, not only

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