Wilmington City Railway Co. v. Wilmington & Brandywine Springs Railway Co.

CourtCourt of Chancery of Delaware
Writing for the CourtTHE CHANCELLOR
Citation8 Del.Ch. 468,46 A. 12
Decision Date11 April 1900

46 A. 12

8 Del.Ch. 468



Court of Chancery of Delaware, New Castle

April 11, 1900

INJUNCTION BILL.--The complainant was a street railway company owning and operating its railway by electricity over many miles of streets of the City of Wilmington. Under its original charter, passed February 4, 1864, it claimed the exclusive right and privilege of constructing and maintaining street railways in Wilmington, and on this ground it sought to restrain the respondent, which had been chartered by the Legislature to construct and operate an electric railway partly within and partly without the City of Wilmington, from constructing and operating its proposed line within the city limits.

The injunction was sought primarily upon the ground that the complainant possessed the exclusive right to operate and maintain such a railway within the city, but the bill also alleged that the respondent, by non-compliance with the conditions prescribed by its charter, had forfeited any rights which it might otherwise have acquired under its charter.

The bill set forth a traffic agreement entered into between the respondent and the Elsmere and Wilmington Electric Railway Company, under which the cars of the respondent company were to have access to the City of Wilmington over the tracks of the complainant.

Under the charter of the respondent it was required to commence building its road within three months after the passage of the Act and to finish the construction and have the railway in operation within two years thereafter. It was alleged by the complainant that by the failure to complete its line within the time specified, the respondent had forfeited all its rights, privileges and franchises.

The complainant claimed that it had a standing in a court of equity to seek the relief prayed for, because the respondent proposed and threatened to cross its tracks, and, by reason of the special injury which would thereby be caused to the tracks and trolley wires of the complainant it was entitled to equitable relief in the premises.

The material parts of the charters of both companies, and other legislation which was material, are sufficiently set out in the opinion.

The bill was filed November 24, 1899, and prayed for an injunction to restrain the respondent, its officers, etc., from erecting, constructing, operating or maintaining a street railway within the limits of the City of Wilmington; and also from cutting, tearing up or removing the complainant's tracks and from hindering or delaying the operation of its cars; and from interfering with, cutting or removing its trolley wires.

A rule to show cause why a preliminary injunction should not issue was granted.

Affidavits were filed on both sides. A very large number of affidavits were filed for the complainant in support of the motion for an injunction. They were directed to prove that the terminal location of the respondent's railway was not at the point required by the charter; that its railway was not completed and in operation within the time limited by the charter for its completion; that the Wilmington City Railway Company had commenced work on Sixth Street and continued it until restrained by injunction. It was also shown by the affidavit of the Secretary of the Board of Directors of the Street and Sewer Department that the Board had, on November 7, 1899, granted permission to the complainant to extend its lines on Sixth Street, but on November 14, following, that action was reconsidered and on November 21, the minutes of the meeting which set forth the affirmative vote on motion to reconsider, were read and approved; it was further deposed that "at the meeting held on the 14th of November, after the action taken by the Board, as shown by the minutes, there was an extended resolution passed by which the Board gave or attempted to give its authority to the" respondent "to use Sixth Street for railway purposes."

In a later affidavit the same deponent said that the complainant had no right, shown by the minutes, to use Sixth Street, and that the respondent had such right.

Other affidavits filed by the respondent set forth at large the traffic agreement and the action of the two companies and the resolution of the Board of Directors of the Street and Sewer Department of Wilmington authorizing the respondent to extend its lines on certain streets of the city. The proceedings of the respondent company, intended as a compliance with the requirement that the railway should be operated before January 1, 1898, and the efforts to prevent it by injunction were stated in detail. There were affidavits to show that there was no use of electricity as a motive power prior to the year 1881.

The answer of the respondent admitted the incorporation of the complainant and that it operated a line of railway in the City of Wilmington, but denied that it was authorized to use electricity as a motive power, or that it had met the public demand for transportation within the City of Wilmington, and it alleged that divers other street railway companies had been incorporated with power to build lines of railway within the city, and that a large number of the tracks operated by complainant within the City of Wilmington were so operated, not by virtue of the original charter of the complainant, but by the subsequent acts of incorporation in the answer recited.

It was denied that the complainant had an exclusive right and privilege of building and operating street railways within the limits of the city, and it was alleged that the only exclusive right and privilege possessed by the complainant was to operate its original line.

The answer further set forth that under the Constitution of the State of Delaware existing at the time of the passage of the act, the Legislature reserved to itself the power of revocation, which had been exercised by the General Assembly by the passage of subsequent street railway charters under which all the lines of the complainant, except its original line, had been built and were operated.

The answer further alleged that under its charter the complainant was only authorized to operate its railway with steam power, subject to the consent of the City Council, or by horse power, and at the time of the enactment of its charter the use of electricity as a motive power was unknown; that without any authority of law, and in direct conflict with the terms of its charter, the complainant departed from the purposes of its act of incorporation, changed its motive power and since that time, without authority of law, had operated its road by electricity.

The answer charged the complainant with having constructed railways within the said city, not in response to a public demand but usually for the purpose of preventing other railways from using the streets, and that the tracks had been laid by the complainant on Union Street, south of Front Street, for the purpose of inconveniencing the respondent and putting it to trouble and expense.

The respondent admitted its own incorporation and the time limit contained therein, and it alleged that it had constructed and operated its railway within the time limit prescribed in the charter, which was January 1, 1898.

It was also alleged that after that date, the General Assembly had recognized the corporate existence of the respondent by an act of March 9, 1899, authorizing the appointment of special constables for the respondent company.

The execution of the traffic agreement was admitted by the answer, but it was denied that the execution of that agreement did or could amount to a surrender of any of the franchises or duties imposed upon the respondent as a public corporation, and that the agreement was null and void in so far as it attempted to do so.

The answer further alleged that the respondent had sought, and finally obtained, the permission of the Street and Sewer Department of the City for its use of the streets which it was authorized to use in its charter; it denied that any other person or corporation had authority to use any of those streets, and alleged that it would be necessary for the respondent to cross the tracks of the complainant, which it was authorized to do under its charter, and which it intended to do without any unnecessary hindrance or delay of the cars of the complainant, or any unnecessary danger or irreparable damage to the complainant.

The respondent declared its intention, unless restrained by injunction, to lay its tracks on Sixth Street in the City of Wilmington, and tendered itself ready to make all necessary crossings of the complainant's line at its own expense, without cost to the complainant and to enter into any proper agreement to that end.

At the return of the rule the case was postponed until January 3, 1900, at which time it was heard upon the application for a preliminary injunction.

Motion for preliminary injunction granted.

Willard Saulsbury, for the complainant, conceded that the charter of complainant must be strictly construed, and will not be so construed as to give the company a monopoly unless the terms of the act are explicit and incapable of any other reasonable construction.

He contended that the Constitution of 1831 provides only for a reserved power of revocation which the charter contains and which may be exercised at any time for misuse or abuse of the privileges of the company herein granted.

No right of amendment was reserved either in the charter or any amendments, and no amendment, except such as were asked for and accepted has ever been passed.

Under the contract clause of the Constitution of the United States, the charter granted in 1864, giving exclusive street railway privileges, is a contract which cannot be invalidated, impaired or affected by legislation, and, therefore, the act of the General Assembly authorizing...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT