Wolfard v. Fisher

• Decision Date: 03 April 1906
• Citation: 84 P. 850,48 Or. 479
• Parties: WOLFARD et al. v. FISHER.
• Court: Oregon Supreme Court

84 P. 850

48 Or. 479

WOLFARD et al. v. FISHER.

Supreme Court of Oregon

April 3, 1906

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by J. Wolfard and others against A.W. Fisher, executor of H.F. Fisher, deceased. Judgment for defendant. Plaintiffs appeal. Affirmed.

L.H. McMahan, for appellants.

Geo. G Bingham and L.J. Adams, for respondent.

BEAN C.J.

This suit was brought in 1904 by the owners of property abutting on Water street in the city of Silverton, and by persons engaged in business along such street, to enjoin and restrain the defendant from maintaining and operating on the street a switch or branch railroad from his flouring mill and warehouse connected therewith to the main line of the Oregon & California Railroad Company, a distance of about a quarter of a mile. This switch or branch road was built in 1881 by the Oregonian Railway Company, the grantor of the Oregon &amp California Railroad Company, under an agreement with the then owner of the flouring mill by which the latter was to obtain the right of way, furnish the ties, and pay the railway company $1,000 in cash, and it had been used and operated ever since. For a short time after it was built, horses were used in moving cars over the road, but this was found to be impracticable and for more than 20 years prior to the commencement of this suit, cars have been moved by the engines of the railroad company. What is now Water street was a county road at the time the switch or side track in controversy was built. All the property owners, except two along that portion occupied by the track, joined in a petition addressed either to the railway company, asking it to build the road, or to the county court praying that a right of way along the county road be granted for that purpose.

The evidence tends to show that this petition was presented to the county court, but there is no proof that any action was taken thereon. Two or three years after the road had been built some controversy arose about the matter, and the county court was requested to order its removal, but did not do so. In April, 1894, and after the incorporation of the city of Silverton, an ordinance was duly passed by the common council, granting to J.W. Cochran, who then owned the flouring mill, a 10-year franchise to maintain and operate a railroad on Water street from his mill to the main line of the Oregon & California Railroad Company, and in March, 1904 such...