The herald., 1896-06-16
Important Privilege Decision

Judge Ork yesterday nanQeu QOWD
the following important decision in the
case of Balthaser Linnas truth VS.. the
Southern Pacific Railroad company:
The plaintiff prosecutes this action for
an injunction to enjoin defendant from
constructing and operating a steam rail-
road in public street of the city of
Pomona. The city of Pomona, acting
through its trustees, has authorized
such construction and operation. Its
authority to do SO is unquestioned. The
plaintiff is the owner of lands fronting
on said street and the owner of the fee
in the street to the center thereof, sub
ject to the public easement. The plain
tiff contends that the construction of
steam railroad in said street would im-
pose an additional burden on the land
not contemplated by the dedication of
the street to public use, and. therefore.
that he has property in the street
which would be taken) or damaged by
the proposed construction and operat-
ing of a steam railroad, and that having
such property in said street he cannot
be deprived thereof or that his property
therein cannot be damaged without full
compensation being first made to him
therefor.
The principal question involved is
whether or not the maintenance and
operation of an ordinary steam railway
in public street of city is an addition
al burden upon the land and a burden
which the owner in dedicating the street
did not intend should be placed thereon.
Many authorities We're cited in argu-
ment in behalf of both plaintiff and de =.
fendant in support of their conflicting
propositions, and if we were to take the
decisions of all the courts, there would
be numerical weight of authority sup
porting the plaintiffs contention. But
the one case decided by our supreme
court bearing directly on the case at
bar is Montgomery VS.. Santa Ana West
minister Co., 104 Cal. 1S6. This case
seems to have been decided by the court
en- banc, as the decision is "by the
court" and the statement is made that
neither Chief Justice Beatty nor JUS
tice De Haven participated in the de-
cision. In this case these points are dis
tinctly made
1st. That when a public street in
city is dedicated to the general use of
the public. it involves it's use subject to
municipal control and limitations. for all
the uses and purposes of the public as a
street, including such methods for the
transportation of passengers and freight
as modern science and Improvements
may have rendered necessary. and the
application of these methods and others
to be discovered. That such use must
have been contemplated when the right
of way was obtained. whether by dedi-
cation or other method, and hence that
''such a user imposes no new burden or
servitude upon the owner of the abut-
ting land"
2nd. That in such cases there is no
taking from the owner of the fee. That
the taking effects the public easement
only and is from the city and not from
the individual.
Srd. The courts incline to a broader
and more comprehensive view of the
rights of the public in and to the streets
n Or VIC Of ~ ttyv nd nnt, ,t,.Nr
to hold the 'shadowy title" which the
owner of the fee holds to the lad in
public street or highway, during the
existence of the easement of the public
therein, as being subject to all the var
led wants of the public and essential
to its health, enjoyment and progress"
THESE views are in conflict with ear
lier cases decided by the supreme court
of this state. and there is an evident in
tention to depart from the doctrine of
the earlier cases. The above points
made in the decision of the Montgomery
case We're essentially involved in that
case, We're basal elements upon
which the ca e was decided and hence
not obliter dicta. From the careful con-
struction of this decision it's painstaking
review of authorities and the evident
purpose to establish the doctrine enun-
ciated as M advance in the jurispru
dence of this state on the points raised
and decided (p. 1922 / doubt not that
it establishes the rules by which trial
courts will hereafter be required to con-
form and in accordance with which even
the federal courts will construe the laws
of this state applicable to such cases.
On the authority of that decision, there
fore. | hold that the plaintiff is not en-
titled to enjoin defendant from proceed
ing to construct and operate it's road in
White street in the city of Pomona in
accordance with the ordinance of said
city granting the franchise therefor
The plaintiffs complaint will therefore
be dismissed but without costs to either
party. WALDO NJ. YORK,
June 10, 1896. Judge.