The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-10-01


the line along that street. Judge Hiles
yesterday handed down an opinion in
the injunction suit, deciding in favor
of the company.
The matter is not settled, however
as the supreme court will be called
upon TO make final decision. the at
torneyS for the plaintiffs announcing
their determination TO appeal the case
TO the higher tribunal. Judge E1ileS ac-
cordngly allowed the temporary re-
Straining order against the company
10 stand until today, in order to give
the attorneys for the residents an OPP
portunity to take the necessary appeal.
The opinion is a very clear document,
setting forth the essential points of law
involved and relating some of the his
tory III connection with the franchise
negotiations, all of which make inter
eStiug reading.
JUDGE HILES' OPINION.
The opinion in full is as follows:
State OF Utah, county Of Salt Lake, S.
In the Third judicial district court. John
Dern ct al, plaintiff. VS. Salt Lake City
Railroad company. defendant.
This SUIT Is for an injunction to prevent
the defendant from laying a street car
railroad track on South Temple street
east OF r street. in Salt Lake City.
The pleadingS and the admissions of the
parties "a the tria! prove that the dc
ItIluttul Is q OTlJOfatiuns OF TINS state, ana
the plaintiffs are abutting property-oWn-
ers on South Temple street, east of q
street. in Salt Lake City.
That III the year 1889 the government of
Salt Lake CITY, by ordinance, granted TO
The defendant = franchise to build and
operate All electric street railroad. be
ginning al the point of connection with
tho main line at the intersection OF East
Temple and First Soath streets, running
thence north on East Temple street to the
intersection CT South Temple street,
the Fcrt Douglas military reservation"
the territory IL dispute in this Quit being
included II the above description.
That By an 2meBdatory ordinance
passed april is, 1894, the above mentioned
grant vas extended for ~ years from the
LIST day OF January, 1894. which latter
grant was accepted by the defendant on
the 24th of April. 1894
The plaintiffs in their bill of complaint
assert that although the ordinance of
1889 and that of 1924, which is amendatory
thereof does in terms grant a franchise
TO defendant TO build a railroad over the
disputed ground. yet, nevertheless, the
defendant did in the year 1893 by express
agreement with the city government de-
clare its intention to abandon and surren-
der. and did surrender to the city that
part of its franchise. and that such sur
render was accepted by the city council
ana That by reason or such surrender the
defendant has now no franchise TO build
over the disputed territory, and also by
reason OF its non-use of its franchise,
has lOSl IT'S privileges ulQeT the grant
aforesaid. And the plaintiffs further al
Iegc that the omission to have the sur
render aforesaid, declared and expressed
IN terms in the amendatOry ordinance OF
April Is, 1894, was made at the instance
OF the defendant, which represented TO
the city council that its financial standing
and interests would be injured, if any
publication were made of the fact that
restrictions or limitations had been made
on the grant of 1889. That had il not been
for such declaration and acceptance of
faff
franchise. III respect of time, would have
been made by the city government. and
that therefore, the assertion at this time
of franchise. which has been abandon
ed, is a fraud which injurously affects
the property rights and interests of these
plaintiffs on such street.
That the property-ownerS on the street,
and some of these plaintiffs. protested
against the extension of the defendant
franchise, in respect of time. unless it
should abandon and surrender the dis
puted part of the street, and that their
resistance would have been cffectua to
defeat such extension of the franchise |
had the defendant not given assurances
that ii had surrendered its franchise over
the street in question.
An these allegations of abandonment /
and surrender are denied by the answer !
On the question OF surrender, the evil |
dence is that there were several meetings !
between members of the city council and !
members OF the board of directors of the !:
defendant in 1893. IN that year Mr. F. .. !
tee on improvements, 50 called, of the /
city council. had several interviews with !!
directors and officers of the defendant !
company. and he says lie got from Mr.. |
w. +. Head. who was then d director and |
superintendent of the defendant 4 de- |
claration IN writing, signed 10y him. 10 the |
erect that the company had given that |
part Of The street up, ana would not build /
upon it except ON the petition of the peo- /
pie, and that this writing was the re suit |
of a conference which Mr. Horn and the
other members ~ h.,1
there tofore had with the directors Of the |
defendant company.
Phis supposed writing was not reported !
Dy MI Horn TO the city council, and does
not appear to have ever been seen or
acted on by il, end was not produced at
the trial, and bir. Read denied ever hav-
ing written or delivered sUcn LITTER to
Nj. Horn There was a letter however
signed by Mr.. Joseph S. Wells. secretary
of the defendant company. which seems
to express il as the intention of the COM
pany not TO build on the street under ex-
.stinS circumstances, and probably not
Tor many years 10 come, but it does not
1eilncu'sn the franchise. and 1t seems to
lecllne 10 consider that proposition as be-
ING an unfair request on the part of Mr..
Horn and his constituents. From the
evidence, can see no reason TO doubt
that the letter which Mr. Horn suDposes
re received from Mr.. Read. was the Wells
ettcr. ana the evidence shows that Mr. |
Wells had 40 authority to write the let
Ter TO Mr.. Horn or any letter to him ON |
that subject, and that when it was
brought 10 the knowledge of Mr.. Mcclure, |
The president Of the corporation he re- |
fused 10 sanction it's validity as an act of
as company, and 1t appears from the
evidence that the giving by Wells of the
etter TO Horn was never made known to
he other directors.
The evidence shows also that Mr. Cohn
Nho was member of the city council in
Sy4. had some interviews with mem hers
II the board of directors concerning the 1
of the franchise by the com
)auy.
No declaration of surrender. however
'0ard OF directors, nor does the city couu-
II appear, from the evidence 10 have |
yer done anything towards accepting a
surrender.
The members of the board OF directors
,ach and all deny that they ever told
dorn or Cohn or any members of the
tty council Of 1893 or 1894 that they had
LbanGoned the franchise or that the COM
he most they had said upon the subject
vas that they did not intend to build !
here for the present.
On such state of the evidence the plain
ifs insist that they are entitled TO an
Injunction perpetually restraining the de- |
endant from building Il railroad In this /
trcet. They put their demand for an in
unction substantially on two grounds:
First-Ehat there was an abandonment |
nj surrender of the franchise by the
ompany 70 the city government. ,
secondhand Dy reason OF the declara-
ions. the acts and conduct OF the direct !
ors of the company. it is. as against the
iaintiifS, eStopped 10 deny that ii has not
urrendered its franchise over the street |
! question, and that 1t has lost its right |
0 lay railroad track in the street by
ing acCuiescence, in its promise to Mr.. r
Torn and Mr. Gohn that It would moi
rild track there unless by a petition of
butting property-owners.
Concerning the first ground, / decide as