Schmidt v. Market Street & Willow Glen Railroad

Harrison, J. — Section 497 of the Civil Code provides that “ authority to lay railroad tracks through the streets and public highways of any incorporated city or town may be obtained, for a term of years not exceeding fifty, from the trustees, council, or other body to whom is intrusted the government of the city or town, under such restrictions and limitations, and upon such terms and payment of license tax, as the city or town authority may provide.” The ordinance of the city of San José, passed March 7, 1876, under which the defendant obtained the right to construct and maintain a street railroad in said city, contained the following condition: “Whenever any part of any street over which this road shall run shall be ordered improved or reimproved, and the work of improving such street shall be let by contract, the part of said street occupied by said track or tracks, and two feet on either side thereof, shall be let together with the rest of the street or streets; and the grantee herein named, or its successors and assigns, shall be held for the payment of the cost of said improvement, which cost shall be assessed in the proper proportion of the width of the track and two feet on either side thereof to the whole width of the street or streets so improved, and collected in the manner provided for the collection of other street assessments, and shall become a lien upon the road-bed, rolling stock, and franchise of said road.” On the 19th of May, 1887, in pursuance of proceedings therefor taken in accordance with the provisions of the act of March 18, 1885, entitled “An act to provide for work upon streets, lanes, alleys, courts, places, and sidewalks, and for the construction of sewers within municipalities” (Stats. 1885, p. 147), the plaintiffs entered into a contract with the commissioner of streets of the city of San José for certain improvements upon a portion of Market Street over which the defendant had constructed its road, and after the completion of the work received an assessment for the expenses incurred for [39]said work, together with a warrant for its collection. By said assessment the defendant, and the road-bed and space between the rails and two feet on each outer side .of the railroad track upon said portion of Market Street, was assessed in the sum of $957.50 as its proportion of the cost of the improvement of said street. This action was brought to recover the amount of the assessment, and is defended upon the ground that by the aforesaid act of March 18,1885, no liability whatever can be created against the defendant for work done under its provisions.

Section 7 of the act of March 18, 1885, provides that “the expenses incurred for any work authorized by section 2 of this act, which shall not include such portion of any street as is required by law to be kept in order or repaired by any person or company having railroad tracks thereon, shall be assessed upon the lots and lands fronting thereon.” No mode is provided in the act for collecting from a street-railroad corporation whose road occupies a portion of the street any portion of the expense of improving the street. It may also be observed that the original act under which the city of San José was reincorporated (Stats. 1874, p. 895) is equally devoid of such provision. The amendatory section referred to by counsel for appellant (Stats. 1876, p. 621) has reference only to the special condition therein expressed, that the street, or any portion thereof, is “dangerous, or in a condition to cause great public inconvenience,” and does not apply to the general provision for improvements of streets. It was doubtless in view of this fact that when the common council of San José, under the authority given it by section 497 of the Civil Code, granted the defendant its franchise, it attached thereto as one of the “ terms ” which by said section it was authorized to impose a condition that the defendant would hind itself to pay the cost of any improvement of that portion of the street occupied by it.