The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-05-27

svailsns Itself Of TIE sans uadcs the etfsun-
stances.
II seems % 10 ska9 tie eoussnffon Of thsDee.
spondents II we'll founded that the cf0inaoee in
question. While il remained upon the books -
ore OF the ordinances Of said city. had The eject
Of designating the route where the lie Of rati-
way might b constructed By any company
choosing to bald . standard gauge ROAD
thereon. connecting said city ey rail with EASs-
ern Washington. snd that By constructing IL
line Of railway thereon respondents acquired .
Fight. - against the city, 20 use such streets
for such parpose. subject. OF course, TO the
nicipAl authorities.
A. 70 the sixth proposition The point thas
there was no such corporation in existence -
the Oregon 4 Tfauscontinen;al Eaiiroad Com
pany seems 70 IN iumateriai II does appear
that there was . corporation known - the Ore
gon Trsnscousineniai Company. and We think il
fairly appears from the proof that tnis was the
corporation that was intended to be designated,
instead O: the Oregon 4 Transconsinenta, Rail-
road Company. which hsd no existence, and
that IL was in effect siInply nn.sncre:. But
undo. the view We hare taken OF the points
heretofore discussed this matter becomes IN.
important
The point in relation to the franchise being
void because in terms perpetual and irrevocabie
disposes OF the sixth, seventh aad eighth propo-
eitions otherwise.
Many OF appellants statements advanced In
support oil it, ninth ground are unquestionaoly
sound, but they fail 20 sustain the position
taken. c;ty's power 70 improve aud graduate
Its streets II undoubtedly q continuant power
NOS exhausted by its frst exercise and inal:eua-
Die oy the corporate authorities, ard such su-
shoriiies are the ones 70 judge OF the ex,edieucy
nj feA euS~ g. rnh
tained By the cases cited But the next state
menf. that under this power the city's right to
establish and execute a new ana higher grade OF
Columbia street at the place in dlspuicS follows
- Q matter course, must be taken with some de-
gree o! limitation 1t will aid IA the discussion
OF this question TO state our views here OF
the effect OF the city's action in the premises.
The raising OF the grade OF the railway tracks
two feet ut the point In question would greatly
impair the usefulness of the tracks This clearly
appears from the proof. and it also appears that
at the came time the city raised the grades OF
other streets ia the vicinity which were crossed
by the railroad tracks aforesaid to such Gu ex-
tent as TO make 1t impossible for the railroad
companies 70 reconstruct their tracks upon said
right-of-wsy. Tho effect OF the raising of the
grades of these various streets was such 40 to
absolutely destroy the franchise, let alone max.
ing 1t i'm possible for the railroad companies TO
comply with the ordnance IN question in CIV
Ing To each wharf owner side track and to
construct the tracks on a common level with
the wharves along the water front ader such
state OF facts We think the weil-settci rule of
la" 10 that the citys right 70 gradual its streets
or alter the grades thereof is not an absolute one
TO oe exercised a. Its option regardless of its ef
feet upon others. but /, 10 power which must be
reasonably exercised with references to the
rights of parties interested. II cannot BE- exer-
clsed 10 the extent OF working . destruction Of
such franchise previously granted. This
would amount to an unauthorized taking OF
property. And none OF the cases cited
by appellant in our opinion support such con-
tention. as none OF them 60 to the extent Of
holding that the city may so alter and change
the grades of its streets as to work destruction
OF valuable property under such circumstan-
ces, but the right to change the grades OF its
streets 10 sustained upon the ground that the
samsmay be done consistent with the preserva.
ton OF rights previously acquired by others a.
Ia the case OF North Hudson Railway Compaay
vs.. Hoboken.4l n. J. Law, 7l.which involved tho
validity Of ali ordinance requiring horse rail.
way to make its tracks previously laid con form
10 the grade OF the street, in which case 1t is
said tina. "the provisions of these ordinances re-
9ufring the tracks to conform to the grade and
10 be laid under the direction OF the street CON-
missioner are Of the character of
regulations which may be adopted. ana IL res-
'ouable are valid such regulations do no. sp-
probably interfere with the exercise OF its fran.
chise by corporation having a franchise to use
the public streets for its business. - And
the legislature is presumed TO have intended
when II authorized the rse OF the public streets
'or such purposes that its grantee should hold
Its privileges subject to such regulations as are
necessary for the use of the streets
Tor the purposes OF q street railway and for or
travel"
No: can We agree with the statement that
here was in this case no taking of property by
he alteration of such grades. because at the
particular time the ordinances were passed the
'alroad tracks had been destroyed BY fire at the
,oint in question. and Tor that reason there was
10 property there i'll existence to taxe. The
'rsument might apply with some force In case
d the destruction Of a structure which could be
ebult as well to conform TO one grade As au-
''her. ana where there would only be dam.
'sing instead Of q deprivation OF the right
But the railroad tracks ut this point must lie re-
Quilt with rclereuce TO the established grade
II the railroad OF which they were a
,art The part which merely crossed the
street could not be segregated ana looked
1t INDEPENDENTLY for IL was OF no value excep,.
ng rs part OF the system. and could only be
practically upon the same grade
Is before, anu this. as We have seen, was rem
Tered impossible by the changes in the grades
If the streets made as Aforesaid. Although the
allwsy tracks across this street were deatroyed
~ fire the property OF the companies still re.
named. The property was the franchise-the
light TO use The street for the purpose of con-
tructing ana operating tracks thereon This
Tas the material thing of value, and this was
y hat was soush TO be taken by the corporate
authorities Ia the manner aforesaid aud /, WAS |
ust as much OF a taking as though the ;racks
lad been actually Ia ex stence at the time the |
" iinances were adopted.
The property of railroad comrnnies il "A
much within the protection OF the law as that |
II any other company or of any individual |
railroads are recognized essential TO the wei |
are and prosperity OF the people. and because |
u 'he.r Capacity for usefulness 10 the whole |
'ecpc IA iroad companies are Invested with |
srse powers Of a pu bile nsture. The Jaws of |
he slate also provide for the organization of |
lilies, ani large powers ATE granted to them |
eating To the control aud regulation of mar. |
ers within the municipal limits, bu, when a |
road Interpretation OF sueh powers clashes |
VIII acquired property rights. As i'll this in |
lance. sueh reasonable construction should h. |
ven them Is shall not have the effect of de- /
tFoying or even materially ininr.ug such |
igais. he CITY must use its powers m n /
nae.e the respondents to have a reasonable use
ad ca ioymeat OF theirs, and not go as to render
impossible or even very difficult for the re. /
saadeai 10 reconstruct; ana operate their rail.
DADA iborer on Railroads, vol. J., u aSs. nara. |
r4pa Isl
Property rights acquired nnder snd by xl,,us
! franchises taus granted are petpetga. unless