The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-05-10

Nfukn-AseumlnG, aoWevSss Snox the defend
ants have the frsnch 4ss ciain.si under the ordi-
nance, the citys rigkt Of corErol over the street
ct the point Of crossing YEA paramount ana
could b exercised, when t.se Injunction was
sought - the city might 81 1t though the ~
suit might b the Impairment or even destruc.
ton Of the defendant franchise: the sole rem.
edy Of the defendants. Hsnys5sdng IN sction for
damagea
Tsuth-Even II the city's right of control over
the street could not ne exercised TO the destruc-
ton of the defendanss franchise it, exercise in
this case would not work ssdessruction O! the
franchise, apart from the .nsngs of grade of
other streets crossing the railroad; and such
change OF other stress was i.ot properly proved
and ii proved was irre evant Hader the pleadinga
Based on these psopositt':1s. both severally
and together, the appellant aasigns Is error Of
the court below the rendering of its judgment
refusing perpetual Injunction sought and dis
missing the action; and or that ground asks
for reversal and . decree IL Its favor.
In arguing on these propositions it is
pointed out that tho defes. dants tacitly ad-
NIT by failure to deny that the section of
Columbia street over which they propose
to construct railroad Ii Q section of that
street a. dedicated by tha plat of Terry's
third addition, and in sosae paragraphs il
distinctly recognized -: soch, though q
large part Of the time at the trial was con-
sumed over the question syhether it was or
not. A blue print Of the plat Of the addi-
ton was presented, showing the street as
extending to Elliott bay ir proof OF tho
claim that it was 20 extend to the water,
though the railroads claimed that
1t did not STOW ahe street as
extending beyond tbs location of
their tracks. 1t was krgued that it was
intended that the street:should extend to
the waters edge, wherey.sr that might be
according to tbs chanie. which time
might work. Had tn. riparian right
obtained in this state it the time when
the plat was filed. the dedication of tho
street would have carried with it an
easement TO deep WATER The history of
the growth Of tile street was then traced.
Originally the wster cafle up to the west
line OF Front street and a slip was built
out to about where the right-of-way now
Is and afterwards extended, and was used
to reach blacksmith s.op on what is
now West street. Morto7er, when the
railroad was bui's the flip was moved
farther out ana reachad to the level
OF the track. This roadway was
used with the tacis approval Of
the railroad company prisvious to the fire.
locomotive bells ringing when trains
crossed it. While this public use is not
claimed to establish . highway by pre-
scription. it is alleged to raise a presump-
ton of dedication. It IS also urged that
the powers conferred by tho territorial leg
islature upon the city ID lay out streets
and establish wharves did not also confer
the power to create phblic easement by
the establishment of s:highway on the
shore which would be good against all the
world except the future state. Even if
any doubt existed a. to:shis right the de.
PENDANTS were not in q positionto raise
that doubt, for their right was based on
the assumption that the land in dispute
was part Of a street.
Considerable space is then given to the
allegation that the franchise is void be-
cause of the non -existen.e Of the Oregon
& Transcontinenial Rail,oad Company. It
is commended that the evidence showed
that there never was SUCH company.
On the eighth proposition it vas con-
tended that, while the, otty could under
the territorial law establish public street
over the tide lands, it toald not create q
private easement over shem, for the tide
lands were held in tIslst for the future
state and coula not be- granted away by
the grant by tho city ola strip on the tide
lands to the railroads WAS void for lack of
power, though the state constitution had
granted it power to extand its streets over
them. Nor was the city estopped from
denying the validity of It's franchise.
The city's power to establish the grades
of its streets was inaiien:,bse and was itself
the judge of the expedie.,cy of its exercise.
The franchise expressly reserved to
the city the contfo over streets
within the limits of the right
of-way, and. even. without this.
the grant coul,; not be- construed as an
abdication of It's rights. and therefore
could not create any property right which
would stand in the way OF the exercise of
its powers. Nor did tbs change of grade
amount to an exercise q the right of emf
nent domain, and henee requiring COM
pensation, for there was: no taking of prop
erty, there was no physical property to
take, and nothing of this defendants was
affected by the city's action except the
permit to build r track IN land which they
did not own. Even if the change of gra lie
impaired the value OF property rights
acquired from private individuals in re-
spect to parts of the right-of-way not
Il
aging, not of taxing. am the remedy was
an action for damages
The stipulation which was afterwards
set aside is quoted as Evidence that the
higher grade could wors no injury to the
railroads or interfere HiIh the ease and
economy of its operation and, when the
city changed TIE grade: so as to make it
imprac,icable ~ operate The road at the
wharf level, ii by Implication waived the
requirement that the er&ck should con-
form to that level. Thr changes in the
grades of Marion, Msdison and Spring
streets was not pleaded and, therefore,
proof of them vas inadfaissible.
In conclusion, attention was called to
the fact that the railroads had taken the
law into their own hands and tried to
maintain their supposea rights by physi-
cal force and we're themselves enjoined TO
prevent their unlawful interference with
the city's peace able act
The argument of the railroad companies
was that the clty, while authorized to es-
tablish the gra.;es Of streets, yet has no
right in the exercise of that power to de-
stroy or grea,iy impaN tie usefulness of
the railroad tracks. IHlst the city was
empowered o. authorize the laying of
railroad track in the streets. and did so
bv ordinance No. 262. ;passed March Ii,
1882: that III. rairoat companies were
authorized by :heir charter to lay their
tracks in and along sucfl af the streets and
public places a.. the CIT n the municipal
.,Io-.,ias o., q, ht deSi,snSta upOn applira-