The record-union., 1891-02-11
[Filed February .. 1sa1

[Filed February 2, 1891.
Appeal from Superior Court. San Ber
nardino County-C. VIC. Rowell, Judge.
For appellant, III. C. Rolfe.
/ Fer respondent, w. j. Mcintyre.
DEPARTMENT TWO.
FINCH, Appellant,
RIVERSIDE AND ARLINGTON w. i''o''.
RY Co., Respondents.
This was an action of eiectment brought
by the owner Of the fee of half of a
street in the city of Riverside, called
cypress avenue, against 4 street-car COM
pany, 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 PLAINTIFFS
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
is whether the defendants use of it was
unauthorized and unlawful. In this re-
gard several points are made.
/. 1t is contended that the defendants
could not use the street for the purposes
of its track without first making compen-
sation to the plaintiff, and the case of
Weyl VS.. Sonoma Valley Railroad Co.
go Cal. 203) is cited. But that case was
not in relation to a street railway, but to
an ordinary railroad whose route took il
through a street. And we think there is
difference between such q case and the
present. The dedication of a street to pub
lie use authorizes any ordinary use for
street purposes; and the use of a street in
a city or town for the tracks of street
car company is of this class, and is there
fore authorized.
2. 1t is argued that the track was not
located as required by law. The provis-
ion Of statute in relation to the subject is
that: 1.-The city or town authorities in
granting the right of way to street rail-
road corporations, in addition to the re-
strictions which they are authorized to
impose, must require a strict compliance
with the following conditions:
First, to construct their track on those
portions OF the street designated in the
ordinance granting the right, which must
be ds nearly as possible in the middle
OF the street" Civil Code, Section 1887
The order granting the franchise did
not prescribe the precise part of the street
upon which the track was to be located.
Itwas merely that the francise be granted
to the applicants according to their APP
plication'' (fol. 103); and while the appli-
cation named the streets through which
the road was to run it did not refer to any
particular portion of any street. (Fols.
1S-9.) There was, however. Il general or
dinance, applicable to all street car COM
panies, providing that ''the track shall be
laid as near the center of the street or
streets along the route of the railway as
lordctica5ie.'
1t Will be observed that the effect of this
was that the board did not exercise its
own judgment as to the portion Of the
street to be occupied by the track. but
left 1t to the company to construct their
track as near the middle Of the street "as
practicable.''
The company evidently did not con-
slider it practicable to place the track in
the middle OF the street, and accordingly
placed it on the side next the plaintiffs
lot. The precise location is not shown by
the record; but the court finds that SIT qcas
not practicable to locate the track in the
middle Of Cypress avenue" The court
further finds that the franchise provided
that the track was to be laid ''along the
eastern side of Cypress avenue" (Which.
as above shown, it did not lprovide); and
that ''the location of the defendants track
was in conformity with the requirements
Of said franchise" (Fols. 44-5)
The plaintiffs position is, in the first
place, that the words 'as nearly as possi-
bic" do not mean ''as nearly as practical
BILE, rs held by the trial COURT and that
even if they do, the finding that it was not
practicable to locate the track in the mid
die of the street is not sustained by the
evidence.
In relation to the first question we think
that the statute means ''as nearly as prac-
ticable." AS matter of course, it is
always physically possible to place q
track in the middle of street. 1t may
not be legally possible. For example,
there may already be a track there under
franchise which it is beyond the power
of the board to revoke. But even if a
track were placed in the middle ofthe street
under q revocable license, we think that
the board would have power to authorize
the laying of another track so as not to
interfere with the first. So if as is some
times the case i'll rural towns, n row of
trees Were in the middle of the street, the
track could be placed on one side. And
we are not prepared to say that the con-
ditions of traffic might not be such as to
require Il similar location. The use of the
words ''as nearly in connection with '.as
possible shows that it was foreseen that
IL location in the middle of the street could
not always be made; and we think that
from the nature OF the case, the meaning
must be that the location must be con-
trolled in some degree by the circum-
stances of the particular case.
But we do not think that the evidence
in the case before US shows any reason
why the track could not be located in the
middle of the street. Only two witnesses
testified on the subject. One of them said
in substance that it was impractical to
place such track in the middle of such a
narrow street (it was forty feet wide), be-
cause it would interfere with traffic. TO
use his OWN language: 1T is impractical
to put it in the center of such Il narrow
street because it interieres q little bit with
| the travel, just about the same as when
| Mr.. Finch goes across to his lot 2lO. 1t in
! terferes with the travel in passing teams.
II the travel is very great it interfercs
materially. 1t depends on how much
travel there is.' (Fols. 1870 But the wit
ness did not state how much travel there
was.
The other witness said that track in
the middle OF street would Interfere
with traffic very extensively" But he
| went on to say: Putting street railway
in such street would interfere with the
! use the street for other travel Uhc,.eUc1.
/ goG pnt IL. But 1 should deem it adris-
dole not TO put any street railway in the
/ center of such a narrow street for the rea-
| son that it will obstruct the travel to such
extent that teams for instance cannot pass
each other on either side of the track
without crossing the track There would
be room on each side for teams to pass.
OF it is prdcticdbte." tFols.
149 to 152
The effect of this testimony is merely