Security Trust Co. v. Village of Grosse Pointe

• Decision Date: 13 May 1929
• Docket Number: No. 2787.,2787.
• Citation: 32 F.2d 706
• Parties: SECURITY TRUST CO. v. VILLAGE OF GROSSE POINTE et al.
• Court: U.S. District Court — Western District of Michigan

32 F.2d 706 (1929)

SECURITY TRUST CO. v. VILLAGE OF GROSSE POINTE et al.

No. 2787.

District Court, E. D. Michigan, S. D.

May 13, 1929.

William L. Carpenter, Thomas G. Long, and William G. Fitzpatrick, all of Detroit, Mich., for plaintiff.

Albert E. Meder, of Detroit, Mich. (Beaumont, Smith & Harris and Fred G. Cadwell, all of Detroit, Mich., of counsel), for defendants.

SIMONS, District Judge.

This cause is before the court, after final hearing in open court on the pleadings and proofs, on a bill of complaint filed by Security Trust Company as receiver for Detroit United Railway against the village of Grosse Pointe, a Michigan municipal corporation, and Richard P. Connor, as president of such village, as defendants, to restrain such defendants from interfering with the operation of interurban electric cars by plaintiff in and through said village, and from removing the tracks, poles, and other equipment used by plaintiff in the operation of such cars. The defendants have filed an answer to such bill and a counterclaim, praying that the plaintiff be restrained from operating street cars over the route in said village involved in this suit, and be directed to remove the said equipment and property or to permit the defendants to do so at its cost.

All of the parties to the suit are citizens and residents of the state of Michigan, but the plaintiff was appointed as such receiver by this court in another cause, in which it had proper, original jurisdiction, and therefore it has jurisdiction to entertain the present suit as ancillary to its jurisdiction in the cause in which the plaintiff receiver was appointed.

The question involved is whether franchise rights under which the plaintiff has been operating electric cars through the defendant village have expired, as claimed by the defendants, or whether such rights are still possessed by the plaintiff, as asserted by it. On April 11, 1887, the territory now within the limits of the defendant village was a part of the township of Grosse Pointe, and subject to the jurisdiction and control of the officers of such township. On that date the township board of said township granted to Calvin K. Brandon and others, predecessors in title to the plaintiff in this case, the following franchise:

"Be it known that we, the undersigned township board of the township of Grosse Pointe, in the county of Wayne and state of Michigan, at a meeting of said board duly and lawfully convened this 11th day of April, A. D. 1887, by a resolution duly presented and adopted, and in consideration of one dollar to the said board in hand paid by Calvin K. Brandon, Hibbard Baker, and Hoyt Post, of Detroit, Michigan, have duly granted and conveyed to said Calvin K. Brandon, Hibbard Baker, and Hoyt Post, their successors or assigns, the exclusive right and privilege of constructing, maintaining and perpetually operating a railway to be operated by horse or electric power, for the transportation of passengers along Mack road, or Clinton road, in said township of Grosse Pointe, beginning at the boundary line between the townships of Hamtramck and Grosse Pointe, and running thence easterly along the line of said road to the easterly boundary line of the township of Grosse Pointe; also on Jefferson avenue, beginning at the boundary line between the townships of Hamtramck and Grosse Pointe, and running easterly to the easterly boundary of the said township of Grosse Pointe; also on the Cadieux road, beginning at Mack road, or Clinton road, and running southerly on said road to Jefferson avenue; also on the Morass road, beginning at Mack road, or Clinton road, and running southerly to Jefferson avenue, with the right and privilege of maintaining and perpetually operating the same with all necessary and convenient turnouts, switches, double single tracks and all appurtenances thereto belonging.

"The track of Mack road to be on either side of the roadway, and to be constructed not less than twelve (12) feet from the middle of the roadway.

"The building of said road to be commenced within one year from the date of this instrument and completed as far as the private road known as the Fisher road within three years from said date.

"In witness whereof, the undersigned, said township board of the township of Grosse Pointe, in the state and county aforesaid, have hereunto set their hands this 11th day of April, 1887."

The plaintiff contends, while the defendants deny, that the franchise just quoted is still in force and effect, and it is on such franchise that the plaintiff now chiefly, if not wholly, relies as the basis for its claimed right to operate its cars within the defendant village. This franchise will be hereinafter further considered and discussed.

It clearly appears from the record, and this court hereby so finds, that the construction of the road just mentioned and contemplated by said franchise was not commenced within one year from the date of such franchise, and was not completed as thus required within the three years so prescribed. Nor is there any evidence or circumstance in the record indicating that the grantees under this franchise, or any of their successors or assigns, ever undertook any acts or took any steps in reliance on, or made any effort to comply with or make use of, such franchise until it was invoked by the plaintiff as a basis for its claims in the present suit.

In 1889 the present village of Grosse Pointe, defendant herein, was incorporated as a municipality separate and distinct from the township of Grosse Pointe, and thereby acquired, as hereinafter pointed out, control of the public highways within its territorial limits, including the railway route here involved. On March 13, 1891, the village board of defendant village granted to George Hendrie and others a franchise, for an indefinite period not specified therein, to construct and operate a railway along the route here involved, which then was, and still is, within the limits of said village. This franchise recited that whereas the grantees therein were "about to organize a railway company for the purpose of constructing or purchasing a railway in, along, and through Jefferson avenue, from the easterly limits of the city of Detroit to a point in the township of Grosse Pointe," therefore it was agreed by said village board that consent and authority was thereby given to said grantees and their assigns "to lay, construct, maintain, and operate" such a railway, with a single or double track, along said Jefferson avenue through said village from its westerly to its easterly limits; that the track of such railway should be "laid so as to obstruct as little as possible the free passage of vehicles and carriages along said highway, and shall be laid along one side of the said street in so far as the same is feasible"; and that the said grantees should "construct and have the said railway in operation within two years from the date" of said franchise.

On April 8, 1891, the township board of said township of Grosse Pointe granted to the same grantees to whom the village franchise just mentioned had been granted a franchise for the same route, period, and purposes, and on the same terms, recited in the same language, as those set forth in the franchise from said village already quoted. On November 1, 1892, the three franchises hereinbefore mentioned were assigned to the Detroit Suburban Railway, which subsequently assigned them to the Detroit United Railway, for which the plaintiff is acting as receiver, as already stated.

On April 17, 1893, an agreement was made between said village of Grosse Pointe and said Detroit Suburban Railway Company, providing that whereas said railway company had become the owner of the franchise granted by such village in 1891, hereinbefore mentioned, and whereas the period of two years prescribed by said franchise for the completion of the line of railway therein involved had elapsed, and said line had been completed and put in operation only partially, and the parties to said agreement desired "to make new arrangements to extend the time for the construction of the remainder of the line through the said village of Grosse Pointe," therefore it was agreed between said parties that said...