Town of Arcata v. Arcata & Mad River Railroad

Paterson, J. The defendant was incorporated in July, 1881, for the purpose of constructing and operating a railroad from the northern end of Humboldt Bay to the North Fork of Mad River, on a line passing through [644]Arcata, which is an incorporated town. In due time thereafter the road was constructed. In March, 1885, the defendant applied to plaintiff’s board of trustees for the privilege of constructing and operating a side-track between certain points within the town limits, and an order was made by the board granting to defendant “ the right to lay and maintain a side-track from Dean & Campbell’s switch, across Seventh Street to and down J Street to Tenth Street, to intersect with the said track in Sharp’s field, subject to such rules and conditions as the board of trustees may think proper and just.” Nothing was said in the order as to the time within which the work was to be commenced or completed. The distance between the points named is about four and a half blocks. Two disconnected pieces of track covering a distance of about three and a half blocks were laid in 1885. Nothing further was done until September 10, 1888, when the gap between the two sections was filled, and the switch or side track was completed. On August 8, 1888, the board of trustees passed an order — of which defendant had notice before the work was completed — rescinding the order of March 9, 1885, granting defendant the privilege of constructing a side-track, it appearing to the board that up to that time the company had not taken advantage of the privilege granted, and on July 16, 1889, a resolution was adopted directing the institution of a suit to compel defendant to remove the t-rack.

The complaint is in ejectment form. It alleges plaintiff’s ownership, subject to the right of the public to use the land as a street, defendant’s unlawful entry, and ouster of plaintiff, and its continued obstruction of the street. The answer consists of a general denial, and a claim that defendant is rightfully in possession under the order of March 9, 1885, and by virtue of the acts performed and money expended in pursuance of the franchise therein granted.

It js claimed by appellant that the trustees had no power to grant -the use of the streets to the defendant for [645]a side-track on which to run cars for loading and unloading. But there can be no question, we think, as to the right of the legislature to delegate to municipal boards the power and discretion to say whether a railroad shall be laid in the streets, and if so, where, and under what conditions. The authority to construct the road on any highway or street is conferred by the legislature (Civ. Code, sec. 465), subject to the condition that the consent of two thirds of the members of the council or board must be obtained before any street or avenue of an incorporated city or town can be taken for such purpose. (Civ. Code, sec. 470.) Defendant obtained such consent in 1885.