The herald., 1897-10-17

tracks would have tendency to inter.
fere with other traffic on the street
but, as already stated, the ordinance II
this case is entirely silent upon these
questions, and it was shown in evidence
on the trial that, owing to the increase
of the railroad business along said. street
ar additional track was constructed
some years ago and has since been in
use, for the whole length of the street
excepting the short space between, Com
mercial and Fourth; and the necessity
for double track appears to be as great
between these points as on any other
portion, and more so than south of
Fourth; that trains are frequently
obliged to occupy position on this So
called second track running south from
Commercial street. TO allow other traire
to pass by on the present single track
between Fourth and Commercial, caus-
+ ing as much or perhaps more obstruc-
! ton to the traffic upon the street in
| that vicinity than if there were a double
track.
USE OF STREETS
| The use of the streets for railroad
| tracks Is not for the benefit or accom-
| moGation of inG,Niduals or private cor
porations, but for the purpose of trans
acting business that concerns the pub
| lie, and in the interest of the public.
| While one track was sufficient for the
| transacton of the business of the rail-
| road company there was no reason why
| a double track should have been con-
structed, but when the business increas-
| es to such an eXtec.t as to require a
| double track to accommodate it, there
| is no reason why it Should be allowed in
| the other parts of the street and eX-
| cluded between the points mentioned.
know of no rule of law which obligeS
| corpora ton to exercise all its rights
and franchises at once under the pen
| atty of losiylg those which are not eX-
ercised immediat ately. Such rule wou6,
| be very unreasonable; for many powers
| are conferred upon corporate bodies
| with reference to a future exercise of
them when their interests, their busi-
ness or the pubic convenience may
require it. Doubtless a railroad cor
poration having by its charter choice
of routes can not, after locating ag1Ci
constructing its road, change the To-
cation and build rew road over a new
| line; but there is no such element in. this
case
THE SUMMING UP
The railroad law of 1861, and amend
ments thereto, were carried into the
civil code substantially as they existed
at the date of the adoption of the code
in January, 1S73 SO that the decisions of
our supreme court in reference to fran
chiseS granted urder the code provi-
sions are equally applicable to rights
granted under the law as it existed when
the ordinance in question in this case
was adopted.
These authorities are complete an
swer to the contention on the part of the
plaintiffs and intervenor that the cor-
Struction by the defendant of a single
track at the time of the passage of the
ordinance operated as an abandonment
or forfeiture of all rights under the or
dinance thereafter to construct another
track wheD the business Of the road
should require it. and that the action or
Eon-action OF the council in 1898 on the
petition of the defendant could rescind
or affect in the least the ordinance of
1872. 1t follows, therefore, that the
threatened action of the defendant ir,
constructing and laying down second
track On Alameda street between the
points mentioned is not unlawful, or
that the same will be a nuisance. The