The record-union., 1896-03-02
LABHARD loses His Case.
Not Specially Injured by the Sixth Street
Railroad Tracks.
Judge Cathn Reviews the Situation
and Orders Labhard's Action
Dismissed.

against the Central Pacific Railroad
Company, and the result is that the
plaintiff has no special cause for COM
plant. Says the court:
The action was to abate an alleged
public nuisance maintained by the de-
PENDANTS upon that part of what is
known as Sixth street, between the
north line of Z street and the south line
of H street, a distance of about 1,34O
feet, the street itself being eighty feet
IN width. The plaintiff owns and has
his residence upon lot having 'front.'
age of fifty feet on the east side of the
street in the block between E and f,
Sixth and Seventh streets. The lot also
has a frontage of 100 feet on the alley
dividing said block.
The railroad track of the defendants
extends through the whole length above
described upon the top Of the levee on
the eastern side of the middle Of the
street; upon the west line of the street,
defendants, about twelve years before
the commencement of this action, filled
UP at great expense a space of about
400 feet in length in what is known as
Sutter Slough, and, upon the foundation
so made, erected a large foundry about
400 feet in length upon the west line of
the street. About thirty feet of the west.
side of the street for about 500 feet
along the front of the foundry is used
defendants for coal and sand bins
and for stowage of coke, iron, car
wheels and other material used in
the operation of said foundry. This
railway track and other things are the
Instructions complained of.
The plaintiff AYERS that "said Sixth
street is now and for more than thirty
five years last past has been a common
and open public highway and street,
and free for and for the use of all the
people of the State of California whom
soever, and confirmed, established and
dedicated to the public use as street.;
also Creferring to said obstructions).
that all OF said distractions above
enumerated are kept and maintained by
defendants without right and unlaw-
1ully"
Defendants deny that Sixth street,
north of H street, was ever a common or
open public highway or street,
CT that it was ever dedicated to
public use as street, or ac-
cepted as such by the city, and aver
that said strip of land called Sixth
street was never used, from said south
line of II street to the north line of f
street, as a public highway or street by
the said city of Sacramento, and that
the only use that the city of Sacramento
ever made of any part of said strip of
land designated in said complaint as
Sixth street was for the purpose of
levee
Defendants further aver that prior to
1862 the said strip Of land called Sixth
street, from H to Z, lay in Sutter
Slough, and some time prior to 1862
the city constructed a small levee on
the bank of Sutter Slough, which levee
was located about forty feet east of
said strip of land now designated in
the complaint as Sixth street; that in
1862 the city built a more substantial
levee at that point and changed the 10
cation of the levee by placing it so as
to commence at the north line of I
street, running north through said strip
of land called Sixth street. and thence
nCrtheasterly toward the American
River
The defendants also plead an Act of
the Legislature approved April IA,
1868 Statutes 1868, page 2SS). entitled
AN Act granting certain privileges to
the Central Pacific Railroad Company
of California and for other purposes,
and an ordinance of the city authori-
ties adopted December 1, 1862
After thus stating the issue in the
case, Judge Catlin says:
The Act of the Legislature granted to
the Central Pacific Railroad Company
of California the right to construct and
operate railway tracks across and
along certain streets of the city within
certain limits. The portion of Sixth
street where the Instructions COM
planned of are situated is within such
granted limits The Act grants the
right to lay tracks, with necessary side
tracks, turnOuts and switches, upon
the top of the levee recently constructed
in the northerly portion of said city"
also the right to construct and erect
such machine shops, storehouses, car
buildings, watering places, turntables
and other buildings and erections nee
essary for the operation of said rail-
road upon any lots, streets and alleys
within the limits of said city lying north
of said levee."
The city ordinance, adopted some four
months before the legislative Act was
passed, had given the same rights, and
referred to the Ievee "as now located
in process of construction in the north
erly part of said city; and, in granting
the right to lay tracks upon the top of
the levee, referred to the levee as that
now constructed and being con-
structed in the northerly part Of the
city
The top of the Ievee. upon which rail
road tracks are placed, is on the east
erly side of a line cutting the center of
the street. The western slope of the
Ievee is Ieveled up even with the top in
front of the foundry ana for some dis
tance. north and south of it. The testi-
mony of the witness Farewell shows
that prior to the building of the new
Ievee in Sixth street teams and vehicles
to some extent travelled on the top OF
the old levee which was described by
him as being about five feet high and
seven feet wide on top, and that after
the railroad was built in 1863 the wag-
ons stopped travelling OF the levee.
Two other witnesses are certain that
this old Ievee was situated not less than
forty feet to the eastward of Sixth
street. The witness Brown, who bought
lots on the east side of Sixth street, be-
tween G and II, found remains of the
old levee there in 1882 forty feet east
of the east line Of Sixth street The
witness Mayo, who had lived in the city
ever since 1S49, says the old levee me
andered the slough, and that at the
point where Browns lots are the old
1evee was eighty feet eastward from the
new one: that the Ohio Brewery, an old