Southern California Railway Co. v. Southern Pacific Railroad

SEARLS, C. This action is brought to restrain the defendants from constructing or maintaining a railroad track, and to compel them to remove all tracks and lines of track from a certain strip of land one hundred feet in width, and commonly known as “Park avenue,” situate and being in the county of San Bernardino, and owned, possessed and appropriated by the plaintiff for the purposes of a railroad; also, to recover from defendants $1,000 damages for injuries to said strip of land. The plaintiff had a decree in its favor, whereby it was adjudged that it was the owner of the land described in the complaint; that neither of the defendants had any right, title or interest therein or thereto, and perpetually restraining them and each of them from entering upon said land and premises, and from constructing, maintaining, or operating any line or lines.of railroad, etc., thereon, and requiring them to remove therefrom, within ten days, all roads, tracks, ties, rails, switches, etc., and awarding plaintiff damages in the sum of one dollar, and denying to defendants the relief sought in their answer and cross-complaint. Defendants appeal from the decree, and from an order denying their motion for a new trial.

A very few facts will serve to illustrate the only important questions involved in this case. Plaintiff, and defendant the Southern Pacific Railroad Company are both railroad corporations, and the defendant the Pacific Improvement Company is a corporation, and, as a contractor, was performing [290]for the other corporation defendant the grading, track-laying, etc., spoken of hereafter. The city of Bedlands is a municipal corporation in the county of San Bernardino, and the strip of land described in the complaint, and known as “Park avenue,” is a public street in said city. In 1886 one W. P. Summers was the owner in fee of the tract of land described as “Lugonia Park,” including Park avenue aforesaid. In December, 1886, Summers contracted to sell all the land described in the complaint to George L. Cook and A. L. Park within eight months. Cook and Clark, on the twenty-eighth day of November, 1887, conveyed the strip of land, one hundred feet wide, known as “Park avenue,” to the Central Bailway Company, reserving from the conveyance “the right to use all of the above land not used by the railroad track for a public road or drive.” The Central Bailway Company constructed a railroad longitudinally through the center of said Park avenue, and the present plaintiff, by consolidation, has succeeded to all the rights and property of the former owner. Summers consummated his agreement to convey to Cook and Park by a deed of conveyance. The railroad of plaintiff is an ordinary steam railroad, constructed and operated 'for the transportation of freight and carriage of passengers. Subsequent to the purchase of the fee in said avenue by the grantor of plaintiff, and subsequent to the construction of its railroad, the defendant railroad corporation projected and located a like railroad, for like purposes through and over said Park avenue.