Stockdale v. Rio Grande Western Ry. Co.

• Decision Date: 11 August 1904
• Docket Number: 1558
• Court: Utah Supreme Court
• Parties: AMELIA STOCKDALE, WILLIAM H. STOCKDALE and ANNIE ELIZABETH STOCKDALE--MIDDLEMISS, Respondents, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, and THE ANHEUSER-BUSCH BREWING ASSOCIATION, a Corporation, Appellants. [1]

77 P. 849

28 Utah 201

AMELIA STOCKDALE, WILLIAM H. STOCKDALE and ANNIE ELIZABETH STOCKDALE--MIDDLEMISS, Respondents, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, and THE ANHEUSER-BUSCH BREWING ASSOCIATION, a Corporation, Appellants. ^[1]

No. 1558

Supreme Court of Utah

August 11, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. T Marioneaux, Judge.

Action to restrain defendants from operating and using a certain steam railway track in proximity to plaintiffs' property. From a judgment in favor of the plaintiffs, the defendants appealed.

MODIFIED.

Affirmed.

Messrs Sutherland, Van Cott & Allison for appellant railway.

D. B Hempstead, Esq., for appellant association.

Arthur F. Thomas, Esq., for respondents.

McCARTY J., delivered the opinion of the court. BASKIN, C. J., concurs. BARTCH, J. concurring in part and dissenting in part.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

This action was brought to restrain defendants from operating and running cars over a certain steam railway track, known and designated as a spur or switch track, which track is situated to the south of, and in close proximity to, plaintiffs' premises, upon which there are two dwelling houses (cottages) owned and occupied by the plaintiffs, and by other parties who are tenants of plaintiffs. These premises are twenty rods in length by five rods in width; that is, they have a frontage of five rods, which faces west on what is known as Fourth West street, in Salt Lake City, Utah. One of the cottages is of brick, and the other is a frame structure. The brick cottage is near the southwest corner of the premises mentioned, and faces west. It has a door and window at the rear or east end, and two windows in the south side, which face the switch track in question, which track passes on a curve within twenty-five feet of the house, and continues east nearly the entire length of plaintiffs' premises, and within five feet thereof.

The third, fourth, and a part of the fifth finding of fact by the trial court, and over which there is no controversy, are as follows:

"(3) That since the twelfth day of September, 1874, the plaintiffs have been the owners and in the actual possession of the north half of lot 4 [then follows a full description of the property], situated on Fourth West street between Fifth and Sixth South streets; that on said premises, for several years prior to the commencement of this action, there have been, and now are, erected two dwelling houses occupied by the plaintiffs and other tenants, said houses fronting on Fourth West street, and facing west; that situated in the same way, and in the same block, south of plaintiffs' premises, are other houses belonging to and occupied by other people; that the value of plaintiffs' said land and houses is several thousand dollars.

"(4) That for a long time prior to the commencement of this action the said defendant Anheuser-Busch Brewing Association was, and now is, the owner of the south half of lot 4, block 29, . . . adjoining the plaintiffs' premises on the south, and that thereon it has partially erected a large warehouse for the purpose of receiving and shipping beer, and the bottling of the same, in connection with its main private business, and for the purpose of conducting therein a private beer-handling business; that about sixty-five feet in front of said lots of plaintiffs and the defendant Anheuser-Busch Brewing Association, and about five feet from the middle of said Fourth West street, the defendant the Rio Grande Western Railway Company maintains its Park City branch line of railway, and that from said line of railway said defendant Anheuser-Busch Brewing Association on the twenty-fifth of July, 1903, by petition in writing, applied to the city council of Salt Lake City, Utah to permit said Rio Grande Western Railway Company to construct a switch track or spur from said line on Fourth West street over and across the east side of said street and its sidewalk, in, to, and over the land of said defendant Anheuser-Busch Brewing Association, to its warehouse on said lot 4; . . . that on the fifth day of October, 1903, . . . said city council of Salt Lake City duly passed, and on the ninth day of October, 1903, the mayor of said city duly approved, an ordinance granting to said defendant the Rio Grande Western Railway Company the franchise and right of way to construct and operate a spur or switch track on and across Fourth West street, between Fifth and Sixth South streets, in Salt Lake City, Utah on and into said defendant Anheuser-Busch Brewing Association's premises.

"(5) That from the main line of the Park City branch of said defendant railway company on the same street, about fourteen feet south of the starting point of the . . . contemplated spur, a spur or switch is already constructed and in operation, crossing and cutting said street, so that, when said spur crosses the sidewalk of said street, it is within fifty-nine feet of the switch track constructed by defendant."

The court further found, and the evidence supports the finding, "that the operation of said switch track by running cars thereon will impose great burdens upon plaintiffs' premises, because of the shaking of the ground by the passage of engines and cars over the track, and by reason of the smoke and noises incident to the operation of said steam railroad, all in such close proximity to plaintiffs' houses and premises that its operation would be a private nuisance to these plaintiffs, and would thereby greatly diminish the value of plaintiffs' premises." The court also found that the operation of the spur track under consideration, in connection with the switch track immediately south thereof, would be an unreasonable obstruction of the ordinary use of said street and sidewalk for public travel, and the plaintiffs' right of access to their premises would be greatly impaired thereby.

The record shows that the railway company does not own the ground on which the spur track is built which leads into a coalyard immediately south of the premises of the Anheuser-Busch Brewing Association, and that the coal company, on whose land the last-mentioned switch track is constructed, will not permit the railway company to remodel the track so that freight can be shipped over it to the warehouse of defendant Anheuser-Busch Brewing Association.

The court found, as a conclusion of law:

"(1) That the said franchise granted by said city council . . . to said defendant railway company to construct a switch track or spur across the said street in and to and over said defendant Anheuser-Busch Brewing Association's premises was wholly without and beyond the power of said city council, and that no such power is delegated by law to said city council; . . . that said grant did unreasonably obstruct said street and sidewalk on said Fourth West street."

"(4) That the plaintiffs are entitled to a decree as prayed for in their complaint, to enjoin permanently said defendants from the operation of said spur track."

A decree was entered perpetually enjoining defendants from maintaining and operating the switch track under consideration, and ordering defendant railway company to remove the same from the street and sidewalk. From the judgment and decree, this appeal is taken.

McCARTY, J., after making the foregoing statement, delivered the opinion of the court.

The first question presented by this appeal is, did the city council exceed its power by granting to defendant railway company a franchise to construct and operate the switch or spur track in question? The power of a city council to grant franchises to railroad companies to make a reasonable use of the public streets of the municipality, for the purpose of constructing and operating thereon railroads designed for the use of the public for the transportation of passengers and freight, is so well settled that a discussion of this doctrine, which is fundamental, seems unnecessary. Plaintiffs, however, contend that the switch track under consideration is designed wholly for the exclusive use and benefit of a strictly private enterprise, and that its maintenance and operation would in no way subserve the public interest, and would have no relation whatever to the public convenience or welfare, and that therefore it does not come within the foregoing rule. We do not think the record supports this contention. True, the franchise was granted the railway company to build the switch track in question on the petition of the Anheuser-Busch Brewing Association, but the petition does not even suggest that the switch is designed for the exclusive use of the petitioner. That it is not so intended is apparent from the city ordinance granting the franchise, which provides, in part, as follows: "A franchise and right of way is hereby given and granted to the Rio Grande Western Railway Company, its successors and assigns, to lay, construct, and operate a switch or spur standard gauge railroad track leading from a convenient point on . . . its railroad line on Fourth West street to and onto lot 4, block 29, in Plat 'A,' Salt Lake City Survey." The ordinance provides that the track shall be laid, maintained, and operated under certain restrictions as to grade crossings, culverts, etc., but no mention is made of the defendant Anheuser-Busch Brewing Association; nor is it even suggested anywhere in the ordinance that the use of the switch track is to be limited or in any wise restricted from that made by the balance of the railway system of which it forms a part. In fact, the record affirmatively shows that its maintenance and operation will be subject to and controlled by the same rules and regulations as the balance of the system. Joseph H. Young, the...