The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1896-02-01
A Favorable Opinion Which May
Recoil on the Southern
Pacific.
FRANCHISE HOLDERS RIGHTS.
Grants of Privileges Are Not Grants of
Land, Says the Supreme
Court.

The Southern Pacific has won q victory
in the Supreme Court; but the laureIs of
victory may change to the cypress of de-
feat on many piece of disputed territory,
for the very points upon which the South
ern Pacific wins are the ones most strongly
in evidence against the railroad in cases
much nearer home than the one Just de-
cided.
The Southern Pacific wanted to run
line through Redlands, in Los Angeles
County, but the prize franchise location
Park avenue, in Lagonia Park-had already
been taken up by the Southern California
Railroad, an offshoot of the Atchison, To-
peka and Santa Fee. The Southern Pacific
negotiated for possession of the avenue,
and to head off any such maneuvers the
Southern California Railroad built spur
track along the greater part of the avenue
and erected flag station along the coveted
line. The Southern Pacific sued and the
Superior Court gave it possession. The
defendant railroad appealed, and now the
Supreme Court has affirmed the decision
rendered below. In the decision there is
much for the Southern Pacific to congratu-
late itself upon; there is also much food
for reflection.
The original franchise of the Southern
California Railroad was secured by appli-
cation of the property-owners whose prop
erty abutted upon the avenue. 1t had
clear right of way down the highway, but
the right of way was not being used, and
the Southern Pacific, in running its line
south, applied for permission to run over
the unused franchise. Suit was brought
to compel the sale of the right OF way, and
the Superior Court ordered it sold.
In affirming this decision the Supreme
int
the legal status of franchises, and some of
them stand out with particular force. A
franchise, it says, is not grant OF land
it is the grant of q privilege, and the prlyi-
lege is granted for the benefit of the people,
not for the benefit of the grantee. 1t fol-
lows, then, in the opinion OF the court,
that when franchise is granted and the
land included in the right OF way described
is not made use of, another person or cor
poration, having for an object the public
good may step in and make use of the
unused franchise; for unless he use his
franchise for the public good, the court
says the original grantee cannot prevent
the use of his unused rights of way by a
person or corporation who will better serve
the people.
Commenting upon the fact that track
had been laid down and a station built,
the Supreme Court again brings balm to
the victims of unused Southern Pacific
franchises, while at the same time it brings
victory to the corporation itself. The
spur track and the flag station, the court
says, were OF no use to the defendant rail-
road. They had not been thought OF
until the unused franchise had been APP
piled for by another, and after being built,
the spur track was allowed to rust, and
the flag station was never bothered by
passengers or care of freight that did not
pass. The line in prospect by the Southern
PaQifin Wa limo and
ence on the avenue would bring much
more benefit to the people than the spur
track and the little flag station put there
to prevent its passage.
The Supreme Court says further that one
line has the right to run over the fran
chise of another when the interests of the
people demand such condition of affairs.
1t is like two railroads crossing noun
tain range through the same pass, says
the opinion of the court; the original road
must allow the second road to pass over its
franchise, the intruding line paying only
so much damages to the first occupant as
its presence actually causes.
Some striking analogies to the position
of the beaten Southern California road are
found in some of the familiar franchises of
the Southern Pacific. Only a few days
ago, goaded to action by franchise which
is still merely shadow, but which prevents
better service furnished them, the resi-
dents of Ashbury Heights and OF the dis
trict south of the park brought suit to
have forfeited the rights of way with
which the Market-street Railway Company
or the Southern Pacific had gridironed the
streets surrounding their property.
There are some places mentioned in the
franchise where tracks are laid, and there
are many more blocks where the franchise
is entirely included in the mere privilege
to lay rails. Over the tracks already laid
ft10 10 OF tfv11 tndo ~
been supposed that the original franchise
was paramount, and, until forfeited, pre-
vented invasion of its streets by other
builders of roads. The decision just rem
dered would seem to go against this view.
The franchise granted and held is not one
of lands but of privileges, and privileges
which, to be held, must be used.
The phantom car which daily drags
itself up and down Bush street also In
trudes itself within the terms laid down
by the opinion. There was no grant of
land on Bush street.
There was grant of the privilege of
running cars for the public good, and it
has sunk to the running of single car.
not for the public good, but to hold the
two lines of rusting iron so no one else
can take possession. Were there flag
station along about Van Ness avenue, on
Bush street, the phantom track and red
wood depot of Park avenue. Redlands,
might be said to have been reproduced
here in San Francisco. The spur track
and the lonely car with the flag station
and the unused rails, the uncertain cars
and the unused franchises, would seem to
come equally under the terms of the last
opinion of the Supreme Court.
By the rulings of the court the spur
track on Park avenue Is ordered torn up
and the flag station is ordered pulled
down and carried away.