Finch v. Riverside & Arlington Railway
Before: Hayne
Synopsis
Eminent Domain — Compensation — Use of Streets — Dedication — Street-railway. — The dedication of a street to public use authorizes any ordinary use for street purposes; and the use of a street for the tracks of a street-car company is of this class, and may be authorized by the city authorities, without compensation to the owner of the fee of the street. '
Street-car Company —Position of Track — Franchise — Ejectment.— The tracks of a street-car company should he laid as nearly as practicable in the middle of the street. If the franchise does not indicate the precise position of the track, and it is not as nearly as practicable to the middle of the street, the track is an unauthorized obstruction, and the owner of the fee of the street may maintain ejectment against the company.
Id. — Public Convenience. — The mere fact that it is more convenient to the traveling public to have the track on the side of the street, and that it obstructs travel a little less than it would do in the center of the street, is not a sufficient reason for not complying with the law. Trustee— Municipal Corporation —Interest — Franchise. —When an application for a franchise was referred to a committee of two, and upon their favorable report the franchise was granted, the fact that one of the committee was a subscriber to the stock of the company for whose benefit the franchise was granted renders the franchise void.
Id. — Corporation. — It makes no difference that the corporation for whose benefit the franchise was granted was not yet formed; it is sufficient that the franchise was granted to a committee of subscribers for the benefit of the corporation.
Presumption —■ Identity. — Identity of persons is presumed from identity of name. Instance.
Hayne, C. This was an action of ejectment brought by the owner of the fee of one half of a street in the city of Riverside, called Cypress Avenue, against a street-car company, which was alleged to be using such half of the street in an unauthorized and unlawful manner. The trial court gave judgment for the defendant, and the plaintiff appeals.
There is no dispute about the plaintiff’s ownership of the fee of half of the street, nor about the existence of the street, and the consequent right of the public to use it as a highway. The question litigated is, whether the defendant’s use of it was unauthorized and unlawful. In this regard several points are made.
1. It is contended that the defendant could not use the street for the purposes of its track without first making compensation to the plaintiff, and the case of Weyl v. Sonoma Valley R. R. Co., 69 Cal. 203, is cited. But this case was not in relation to a street-railway, but to an ordinary railroad whose route took it through a street. And we think that there is a difference between such a case and the present. The dedication of a street to public use authorizes any ordinary use for street purposes; and the use of a street in a city or town for the tracks of a street-car company is of this class, and is therefore authorized.
2. It is argued that the track was not located as required by law. The provision of the statute in relation to the subject is, that “ the city or town authorities, in granting the right of way to street-railroad corporations, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions: .... 1. To construct their track on. [599]those portions of the street designated in the ordinance granting the right, which must be as nearly as possible in the middle of the street.” (Civ. Code, sec. 498.)
The order granting the franchise did not prescribe the precise part of the street upon which the track was to be located. It was merely that the franchise be granted to the applicants “ according to their application and while the application named the streets through which the road was to run, it did not refer to any partieulaf portion of any street. There was, however, a general ordinance applicable to all street-car companies, providing that “ the track shall be laid as near the center of the street or streets along the route of the railway as practicable
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