Amestoy v. Elec. Rapid Transit Co.
Before: Temple
Synopsis
Electric Street-railroad—Void Franchise—Pleading—Promise to Pay for Street Paying — Want of Consideration. — A complaint in an action upon a written obligation for the payment of money, which alleges that the obligation was given by the defendant, an electric street-railroad company, to repay the plaintiff and other property owners for paving the street, in consideration that the plaintiff would not take any steps to prevent the electric company from tearing up the paving and laying its tracks; and which also alleges facts showing that the franchise of the company is void, having been granted by the city council without power, and that the plaintiff and other property owners could and would have prevented the defendant from laying its tracks on the street but for the promise to pay, — shows a want of consideration for the promise, and states no cause of action.
Id. — Assignment of Void Franchise — Void Ordinance — Condition that Property Owners be Repaid. —An assignment of a void franchise confers no rights, and a void ordinance granting a franchise to the assignee, on condition that the grantee repay to property owners all sums paid by them for paving, which the assignor had been required to do under a former void ordinance, cannot constitute a consideration for a promise to pay the money to the property owners.
Id. — Obstruction of Street — Public Nuisance — Special Damage — Contract against Public Policy. — A track laid and poles erected in the street without authority constitute an illegal obstruction, or public nuisance; and where no fact is averred to show special damage to the plaintiff by the obstruction, an agreement not to prevent it is an agreement not to institute a public prosecution, which is against public policy and void, and cannot constitute a consideration for a promise to pay money for not preventing it.
Id.—Taking up of Granite Blocks — Consideration of Promise to Pay for Paving. —The taking up of granite blocks used in paving the street, and which apparently belong to the city, constitutes no consideration for a promise to pay a property owner for the paving done by him, it not appearing that they were sold to the defendant by the plaintiff, or that the plaintiff consented to their removal in consideration of such promise.
Pleading — General Demurrer—■ Support of Judgment — Sufficiency of Statement — City Ordinances. — The same distinction between insufficient facts and an insufficient statement of facts, which prevails when it is considered whether the complaint supports the judgment, should prevail upon general demurrer; and although city ordinances are not set out inhmc verba, or pleaded as authorized by section 459 of the Code of Civil Procedure, their existence alleged in the complaint must be considered as against a general demurrer.
Temple, C. This appeal is from a judgment entered upon demurrer.
From the complaint, it appears that plaintiff owns a lot in the city of Los Angeles, on the west side Los Angeles Street, fronting 83.07 feet on that street. In 1886, the city granted to certain named parties a franchise for a street-railroad, extending through Los Angeles and other streets. The road was only partly constructed, and of course was operated only for a portion of the distance for which the franchise was granted. The franchise was granted upon consideration that the grantees would pave and keep in repair the street between the tracks, and for two feet on each side; the same to be paved whenever ordered paved by the city council, or when the street was paved by owners of frontage. In 1888, the city council by resolution required that portion of Los Angeles Street to be paved, and authorized the paving to be done by private contract. The work was done by owners of frontage, and was accepted by the city. The owners of the franchise did not pave between the tracks, or for two feet on each side, although they were required to do so by the ordinance of the city, but refused so to do. Thereupon the city council directed its street superintendent to remove its rails and track from that street, and the track, rails, and* ties were so removed.
The city council claimed that the franchise had been [313]forfeited for various reasons, which are not set out in the complaint, and the former owners of the franchise, as plaintiff believes, acquiesced in the claim.
Plaintiff and other owners of frontage, finding the street impassable, and believing that the franchise had been forfeited and abandoned, completed the pavement on the street, doing the work which the owners of the franchise had undertaken to do, at a cost to plaintiff of $215.
In the mean time the company which had owned the franchise had become insolvent, and all its property, including its claim to the franchise, were sold to the defendant.
Afterwards, about April, 1890, defendant desired to lay its track upon the street in front of plaintiff’s property, and west of the center of the street, but plaintiff and other owners of frontage objected.
It is averred that defendant’s assignors had forfeited their franchise, and defendant had obtained none; that the franchise which had been granted had been used for a railway on which cars were propelled by electricity through an overhead system of wires resting on poles, and was therefore void; that the defendant proposed to lay its track on the street, and place wooden poles on each side thereof, and to place wires thereon, for the purpose of propelling cars by electricity; that defendant knew that its franchise was void, and that it had no right to lay its track or .erect its poles or propel cars by electricity without the consent of plaintiff and other owners of property.
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