Spokane St. Ry. Co. v. City of Spokane Falls

• Decision Date: 20 June 1893
• Citation: 6 Wash. 521,33 P. 1072
• Parties: SPOKANE ST. RY. CO. v. CITY OF SPOKANE FALLS ET AL.
• Court: Washington Supreme Court

33 P. 1072

6 Wash. 521

SPOKANE ST. RY. CO. v. CITY OF SPOKANE FALLS ET AL.

Supreme Court of Washington

June 20, 1893

Appeal from superior court, Spokane county; J. M. Kinnaird, Judge.

Action by the Spokane Street-Railway Company against the city of Spokane Falls and others. From a judgment sustaining a general demurrer to the complaint, plaintiff appeals. Reversed.

Turner & Graves and F. T. Post, for appellant.

P. F Quinn, City Atty., and W. C. Jones, for respondent City Park Transit Co.

STILES J.

The appellant brought an action against the respondents to prohibit them from interfering with its street railway upon Division street, in the city of Spokane Falls and the court below sustained a demurrer to the complaint and dismissed the action. To sustain its right to an injunction, the plaintiff showed that on the 16th day of June, 1886, the city of Spokane Falls, by an ordinance of that date, granted to its assignors the right to lay down maintain, and operate a street railroad upon certain streets, which were named, of which Division street was not one; but in building its road it laid down a portion of its track on Division street, and used and operated the same as a portion of its system from some time in 1887 to the time of the commencement of the action, in 1890. The track on Division street was laid under the direction of the superintendent of streets of the city, and was assessed for municipal taxes for each year thereafter. On March 14, 1889, the Spokane Cable-Railway Company obtained a similar franchise from the city for the construction, operation, and maintenance of a cable railway or railways upon sundry streets, among which was Division street. Among the terms of this second ordinance was one which provided that the grantee therein should have completed and in operation, within the city limits of Spokane Falls, at least two miles of road within six months from the passage of the ordinance, it being understood that the two miles to be completed as aforesaid might embrace that part of a road already commenced under the authority of a third ordinance running to J. M. Thompson, or his assigns, passed June 7, 1888. It was alleged in the complaint that the Spokane Cable-Railway Company had in part complied with the terms of its ordinance by the laying down of certain rails, one line of which was on the outside of each of the rails of plaintiff company's original track, this having been done by agreement between the two companies. Subsequently, and before the commencement of this action, the Spokane Cable-Railway Company had sold and assigned to the appellant all of its rights under the ordinances granting to it authority to maintain a cable railway in Division street. The Spokane Cable-Railway Company had also before this time complied with that portion of its ordinance requiring it to have at least two miles of its road completed within six months from the passage of the ordinance. Under these circumstances, the city council, on the 18th day of June, 1890, passed a resolution requiring the plaintiff to tear up all of its rails on Division street, and cease operating its line of street railway upon said street, and directed the respondent Swingler, as superintendent of streets, in case the command of the resolution was not obeyed, to tear up the rails; and the further allegation is made that this action of the city was taken at the instance of the respondent the City Park Transit Company, which was claiming some right to construct a street railway on Division street upon the same portion of the street occupied by the appellant's railway, and that this action was to enable it to occupy the street with its railroad. The supplemental complaint showed that, notwithstanding a restraining order issued by the superior court, the respondents had disobeyed the order, and destroyed a portion of the appellant's track; that the police officers of the city had protected the City Park Transit Company, its agents and servants, in laying down its track in place of appellant's thus torn up; and that other portions of the track of the appellant were still intact, the respondents, however, threatening to dispose of that in like manner. In the face of a general demurrer, we are required only to look at the complaint to see whether or not it states any ground of action upon its face. In our opinion, there is, at least, one good cause stated.

1. It is a rule that obstructions of this kind acquire no legality from the fact that they are put in place and operated without interference, and that mere time does not cure their illegal character; but in the case of a quasi public institution, like a railroad or street railroad, there are some exceptions to this rule. A municipal corporation should not be permitted to stand by and see large amounts of money invested in enterprises of this sort by persons who act under the mistaken...