The herald., 1896-12-06
A STREET RAILWAY.
From Santa Ana to Tustin, via Orange,
Considered,

The opinion in the suit of Samuel Hill
against the city of Santa Ana ct al. was
handed down by Judge Van Dyke yes
terday. The ruling was made on the de-
murrer to the complaint, which was sus-
tanned, without leave to amend.
The case was transferred from Orange
county to this for trial. Only two points
raised in the demurrer are considered in
the opinion filed, to-wit, that the plain
tiff has not the capacity to sue and that
the complain does not state sufficient
facts to constitute cause of action.
1t was stated in the complaint that
the plaintiff is a resident taxpayer of
Sana Ana, living upon Main street, along
which the franchise complained of was
granted to the defendants, E. l. Tole and
others. There is nothing in the COM
plant. says the court, showing that the
plaintiff has been or will be damaged
by the construction or operation of the
road along said street in any degree or
manner different or greater than other
property holders and residents along
said street or the general public. 1t has
frequently been held that to authorize
party to bring suit, the injury com
planned of must be special in chara cter
and not merely greater in degree than
that of the general public" (Severy VS..
c. P. R. r., 81 Cal. 1877; Bigley VS.. Moo
nan, SO CAL 404)
1t also appears that heretofore there
has been operated railroad line
through said street and beyond by way
of the town of Orange to the town of
Tustin. That corporation called the
santa Ana, Orange and Tustin Street
Railway company owred and opera ted
line of railroad from Santa Ana to Or
ange, portion of it lying in the center
or said Main street in the city of Santa
Ana. That defendant Tole and his asso-
ciates had entered into an agreement
with said railroad company that upon
procuring the franchise in question they
would purchase the right of said com
pany in said railroad and the rails and
ties lying upon an in said street, and the
application for the purchase of said
franchise was made in pursuance of that
agreement.
1T is further alleged that the plaintiff
was dissuaded from bidding for the
franchise by reason of an understanding
with Tole that he would not make the
application in consequence of the objec-
ton OF plaintiff and some other property
holders on said street, and that in conse-
quence the city was deprived of it's rev.
enue by the sale of its franchise at a
less figure than it otherwise would have
been sold for, and collusion is charged
between Tole and the city trustees, made
defendants In the action. By the act of
1888, statutes 1893, page 2SS, franchise
| or privilege to construct and operate
| railroads along public street can only
| be obtained as therein provided; that is.
| when the application for the franchise
| is made it must be advertised and the
| franchise awarded to the highest bidder.
1t appears, however, in this case that the
railroad for which the franchise was
| granted was to take the place of the
present railroad through Main street by
ex rel. VI. Craycroft, A p. c., 46O. II was
held that the act of 1893 referred to does
not apply In case of a steam railroad
company which desires to make a con-
nection through or In the town of por-
tions of the road extending on both sides
or outsida of the town to other termini