Hook v. Los Angeles Railway Co.

HARRISON, J.

In March, 1897, the defendant, under and by virtue of a franchise granted to it by the city of Los Angeles, constructed and has since maintained and operated by electricity a double track street railroad along several streets in said city, including a portion of Seventh street. In August of that year the plaintiff, to whom the city had previously granted a franchise to construct and operate a street railroad on certain ■streets therein, including four blocks from Lake to Rampart ■streets upon the portion of Seventh street occupied by the defendant, applied to the defendant for permission to intersect the tracks and appurtenances constructed by it on said portion ■of Seventh street, and to operate thereon cars along the tracks •of the defendant and tendered to the defendant the sum of ■eighteen hundred and sixty-seven dollars and fifty cents, as one-half of the cost of constructing the same along said portion of the street. The defendant refused to grant the request, •and the plaintiff thereupon brought the present action to obtain an order authorizing him to make' such intersection and to use the tracks and appurtenances jointly with the defendant, and that the court should determine the amount of money to be paid ' therefor by the defendant. The court found that the construe

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tion of that portion of the defendant’s road which the plaintiff seeks the right to enter upon and use cost the defendant five thousand nine hundred and sixty-eight dollars and ninety-eight cents; that the rails used in said construction were purchased by the defendant in the fall of 1895, and were not purchased especially to be used in the construction of this road, but were carried and held by it as a part of its stock of supplies to be used in connection with the street railroads belonging to it; that the material used by it in said construction would have cost if purchased at the time of the construction, to wit, in March,. 1897, four thousand eight hundred and seventy dollars and eight cents. The only items upon which there was any variance between what they cost to the defendant when purchased by it, and what they would have cost if purchased by it at the time of the construction, were the rails, in which there was a difference in cost of nine hundred and twenty dollars, and the ties, in which there was a difference in cost of seventy-nine dollars.

Upon these facts the court held that upon payment to the defendant of the sum of two thousand four hundred and thirty-five dollars and four cents the plaintiff had the right to intersect the defendant’s road and connect his own road therewith and use the same jointly with the defendant. Plaintiff thereupon paid this amount into court for the use of the defendant, and a decree was entered in his favor accordingly. From this judgment the defendant has appealed, bringing the cause here upon the judgment-roll alone.