The morning call., 1895-02-12
Opinion Of City and County Attorney
CreSWell.
THE TRACKS MUST BIZ REMOVED.
The Street Committee to Consider What
Additional Steps to Take on
Next Thursday.

Yesterday which fully sustains Mayor
Sutro in his action regarding the Church
street grab. The legal adviser of the city
holds that the Market-street Railroad Com
pany had no franchise on Church street,
and therefore had no right to tear up the
thoroughfare, or proceed with the con-
struction of tracks. The legitimate outcome
of the opinion is a resolution from the
board ordering the Street Superintendent
to tear up the tracks already laid down by
the company In the communication the
City and County Attorney says:
I am in receipt of your communication of
February 8, 1885, inclOsing resolution IN the
words as follows:
Resolution No.11,777.
ResolUed, That the opinion OF the City and County
Attorney be requested as TO whether the Market
street Railway Company have franchise For the
construction OF a street railroad on Church street,
and whether under its provisions, said company
have the right construct railroad on said street.
This resolution contains two questions so
intimately allied that they need not be dis
cuSsed separately.
The Board OF Supervisors on May 81, 1892,
passed an order known as order No. 2541,
which was approved June 3, 1892, granting to
the Market-Street Cable Railway Company the
rlght-Of-Way Tor railroad tracks ana the rgnt
to run cars thereon, commencing at the inter
section of Church street with Thirtieth street.
thence along and upon Church street 10 its
thence westerly along Hermann or Kate street
to its intersection with Fillmore street
On June 9, 1892, the sixth day after the ap-
proval OF this order document was filed in
the clerks Office of the Board of Supervisors
accepting the order.
On the 30th day of July, 1894, communi-
cation from the Market-street Railway Com
psny was filed in the clerks office of the Board
of Supervisors. OF which the following is a copy:
Gentlemen: The undersigned, the Market-street
Railway Company, a railroad corporation duly
Incorporated and existing under the laws Of the
state OF california and the successors by consoll-
dation, of the Market-street Cable Railway Com
pany, like corporation, to which was granted GER
tain rights and privileges by and under certain
order OF your honorable body, numbered 254l,
approved June 8, 1892, granting to said Market
street Cable Railway Company the right of way for
railroad tracks and the right to run cars thereon
within the city and county of San Francisco, here
by abandons the rights aforesaid upon and over
those certain streets and portions of streets de-
scrlbed follows: Commencing at the intersection
of Church street with Thirteth street. thence along
and upon Church street to its intersection with
Hermann or Kate street, thence westerly along
Hermann or Kate street to its intersection with
Fillmore street. and prays that your honorable
board consent in writing to such abandonment
Marketstreet Railway Company,
BY J. L. WILLCUTr, Secretary.
ISeal OF Market-street Railway
Company. San Francisco
On the day of the filing of the last commune
cation with the clerk of the Board OF SuperYi-
sors the Board OF Supervisors passed, which on
August 4, 1894 was approved by the Mayor, q
resolution consenting to the abandonment.
The above quotations from order 2541 and
another that hereafter follows and the docu-
ments herein above copied in full show the fol-
lowing facts:
That the Market-street Cable Railway Com
pany obtained q privilege from the Board of
Supervisors by order 254l to construct, Law
down, maintain and operate q single or double
track street railroad along and upon Church
street as above described.
That the order was approved June 3, 1892.
That by subdivision OF section the Mar
ket-street Cable Railway Company was re-
quiTed to complete the construction of and
operate the road on Church street within two
years after the date of the approval OF said or
der, and that the two years expired on June 3,
1894
That upon failure to comply with that con-
dition the right granted should cease and de-
That the Market-street Cable Railway Com
pany within the time prescribed by Order No.
2541 filed with the Clerk of the Board of Sup
ervisors its written acceptance OF the provis-
ions OF the said order.
That on June SO, 1894, or seventeen days
after the expiration of the time fixed in Order
No. 2541 for the completion OF the construction
OF the road on Church street, the Marketstreet
Railway Company, the successor of the Market
street Cable Railway Company, filed with the
Board of Supervisors a written request to be al
lowed to abandon the right-of-Way for railroad
tracks, and the right TO run cars thereon upon
and over those certain streets and portions of
streets, commencing at the intersection OF
Church street with Thirtieth street, thence
along and upon Church street to its intersec-
ton with Hermann or Kate street; thence
westerly along Hermann or Kate street to its
intersection with Fillmore street
That on June 80, 1894, the Board of Super
visOrs by resolution 1882, third series, ap-
proved August 4, 1894, by the Mayor, con-
sentcd to the abandonment asked for.
am informed that certified COPY of this
communication was forwarded by the Clerk of
the Board of Supervisors to the Msrket-street
Railway Company.
That the abandonment proceedings above
referred toincluded not only the right of way
upon and over Church from its intersection
with Thirtieth 10 its intersection with Her
mann or Kate street, but also the right-of-
way upon and over Hermann or Kate street
from its intersection with Church to its inter-
section with Fillmore.
That section 2, subdivision f. of Order 2541
provides, THAT work to construct the railroad
must be commenced within one year from the
date OF this ordinance and the same must be
completed within three years thereafter
That section 2, subdivision 7, provides as
above set forth that the grantee its successors
and assigns must complete the construction of
and operate the road on Church street within
period OF two years from and after the date of
the passage and approval OF this order"
That the period OF time for the construction
OF the road on Church street from its intersec-
ton with Thirtieth street to Hermann or Kate
street, was two years after the approval of Order
2541, and the period of time for the commence
menI OF the construction of the road on Her
mann or Kate street from its intersection with
Church street to its intersection with Fillmore
street was within one year from the date of the
passage O3 SdlQ OTueT, ana the tlIne fOr the COM
pletion thereof was within three years there
after.
Upon the foregoing facts am Of the opinion
that the Market-street Railway Company has
no franchise or privilege for the construction
OF street railroad on Church street between
the point OF its intersection with Thrtieth
street and the point of its intersection with
Hermann or Kate street, and has no right TO
construct street railroad thereon, because
First-Thc acceptance of the provisions of
Order 2541 by the Market-street Cable Railway
Company created q contract between the city
and county OF San Francisco and said COM
pany, that the said company would build the
street railroad upon and over the streets
therein named within the time therein linn
ited-and that the condition that the road
should be completed and operated upon and
along Church street, between Thirtieth and
Hermann or Kate street, was binding upon the
grantee, and that upon the failure TO comply
with that condition the right of the grantee to
build road thereon under this grant ceased
and determined.
No street railroad was constructed Oh Church
street between the points above mentioned
within the limit OF time prescribed by the said
order.
seeond-Even if the rights of the Market
street Railway Company did not cease and de-
termine without judicial or legislative action
thereon in consequence OF its failure to build
and operate the road on Church street within
two years after the approval OF Order 254I,
still the abandonment of the right of way upon
and over Church street on July 80, 1894, and
the acceptance thereof by the Board OF Super
yisors was the voluntary relinquishment by
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