State, ex rel. Cox v. McIlravy

• Decision Date: 10 February 1921
• Docket Number: 21255
• Citation: State, ex rel. Cox v. McIlravy, 181 N.W. 554, 105 Neb. 651 (Neb. 1921)
• Parties: STATE, EX REL. DAVID W. COX ET AL., APPELLANTS, v. FRANK D. MCILRAVY ET AL., APPELLEES
• Court: Nebraska Supreme Court

181 N.W. 554

105 Neb. 651

STATE, EX REL. DAVID W. COX ET AL., APPELLANTS, v. FRANK D. MCILRAVY ET AL., APPELLEES

No. 21255

Supreme Court of Nebraska

February 10, 1921

APPEAL from the district court for Johnson county: JOHN B. RAPER JUDGE.Affirmed.

AFFIRMED.

W. T Thompson, for appellants.

Jesse L. Root, Byron Clark, L. C. Chapman and S. P. Davidson contra.

ALDRICH, J. LETTON, J., not sitting.

OPINION

ALDRICH, J.

This is an action in mandamus commenced by one David W. Cox and wife against the city council of Tecumseh and the Chicago, Burlington & Quincy Railroad Company, as intervener, to compel the removal of certain obstructions at certain street intersections.The city of Tecumseh is one of the second class with a population of between 2,000 and 3,000.Its streets run north and south and east and west.The railroad tracks and depot of defendant railroad company are located upon Webster street, which runs east and west.The depot is situated between Third and Fourth streets, which run north and south.Approximately 25 families live south of Webster street.The public schools are located north of Webster street.Sixth and Seventh streets, running north and south and crossing Webster street, have been closed for many years by reason of the tracks of the railroad company.

On July 12, 1916, the city of Tecumseh undertook by ordinance to grant and convey to the defendant railroad company the intersections of Fourth and Fifth streets where they intersect with Webster street.Thereafter the defendant constructed coal chutes and extensive brick unloading platforms in these intersections, completely obstructing public travel on Fourth street at its intersection with Webster street, and obstructed all travel on Fifth street at its intersection with Webster street, except foot travel.

This is an application for a writ of mandamus against the defendant city council of Tecumseh and the Chicago, Burlington & Quincy Railroad Company, intervener, whom we will hereafter denominate as defendants, and the relators as plaintiffs.Section 5141, Rev. St. 1913, provides: "The city council or board of trustees shall have the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within the city or village, and shall cause the same to be kept open and in repair, and free from nuisances."The petition alleges that Fourth and Fifth streets in the city of Tecumseh are the principal streets, duly platted and dedicated to the public, and that the plaintiffs are citizens, property owners and taxpayers residing within this city.The defendants, as a reason or justification for their refusal to perform the duty enjoined upon them by section 5141, Rev. St. 1913, allege that the refusal is in accordance with the passage of ordinance No. 138, and a plea of estoppel.The defendant railroad bases its defense to plaintiffs' cause of action upon ordinance No. 138, which is in words and figures as follows:

"ORDINANCENO. 138.

"An Ordinance granting portions of Fourth and Fifth streets, where same intersect with Webster street, to the Chicago, Burlington & Quincy Railroad Company and their successors.

"Be it Ordained by the Mayor and Council of the City of Tecumseh: Section 1.That, whereas the Chicago, Burlington & Quincy Railroad Company have signified their intention and are about to erect a new depot in Tecumseh, and as a matter of safety for its patrons, and the necessity and convenience of said company, it becomes necessary to change the present location of buildings, tracks and yards, there is hereby granted to the Chicago, Burlington & Quincy Railroad Company, its successors and assigns, for railroad and depot grounds and purposes all that part of Fourth street between blocks 41, 42, 60 and 61; also all that part of Fifth street between blocks 42, 43, 59 and 60, being that portion of ground where said Fourth and Fifth streets intersect with Webster street, heretofore vacated; this privilege is granted in consideration that said railroad company will build and maintain between Third and Fourth streets on its property in or south of block 41, a modern depot at a cost of approximately $ 20,000, and will further keep said Fifth street open for travel and keep and maintain a good sidewalk of brick or concrete over its property on said street for such purposes and will also keep open for travel with vehicles a strip of ground owned by said company, being described as the south 35 feet of the north half of the north half of blocks 60 and 61; and provided that, by the acceptance of the privileges hereby granted, the said railroad company agrees to save and keep the city of Tecumseh harmless from the payment of any costs, damages or expenses growing out of the exercise of the right hereby conferred in favor on any person whomsoever.

"This ordinance shall be in force after its passage, approval and publication according to law.

"Presented and regularly passed under suspension of the rules on July 12, 1916.Published July 15, 1916.

"(SEAL)W. H. Taylor, Mayor.

"Attest: W. J. Devenney, City Clerk."

After carefully looking through the law propositions as involved in appellants' contentions and perusing with equal care the contentions of appellees, we are of the opinion that the propositions of law numbered 9 and 10 of appellees' brief are decisive of the issues in this case.We choose to decide the issues and determine the rights of the parties involved on the doctrine of estoppel, and show wherein it has application to issues herein, and show why the doctrine of mandamus does not apply in enforcing rights which are in substantial dispute or when a substantial doubt exists.Then it is true that a writ of mandamus is only granted as a matter of sound judicial discretion.It is only a legal remedy based on equitable principles.

A city does not lose its rights in a public street by mere nonuser, but if there are other circumstances in connection with the case which are sufficient, together with the nonuser, to raise a presumption of abandonment, such rights are deemed to be lost.

The defendant entered into a contract by way of an ordinance to vacate, abandon and turn over to defendant railroad company certain of its streets, and alleges in consideration of which the defendant railroad company expended, approximately, $ 20,000 or $ 25,000 in building a new depot, coal...