The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1903-09-13
STREETS FOR
USE OF PUBLIC
Can't Be 0bstructet by Private
Concerns For Private Use.
so HOLDS SUPREME COURT
COUNCIL DID WRONG IN GRANT
ING A FRANCHISE.

In decision handed down yesterday
IN the state supreme court. it was held
mat private corporation cannot Sc
cure Cor private purposes q franchise
TO lay switch or track upon a public
thoroughfare where the obstruction
damages the abutting property. The
opinion was written by Associate JUS
uce McCarty I'm the case OF Giovanni
1eieghino VS.. the Oregon Short Line
HaliWay company and the Consolidated
wagon & Machine company.
The decision, which reverses Judge
IhaFles W. Morse Of the district court.
means that the Short Line cannot lay
p switch on Third West street. between
Seventh and Eighth South streets. TO
the warehouse of the wagon company.
Judge Morse refused to grant the in
junction praA "a for by CereghinO but
the supreme court orders him to issue
the injunction, restraining the road
from laying the track, and make it
permanent
History Of the Case.
Some months ago the Short Line. at
the request Of the wagon company. Sc
cured permission from the city council
to lay switch from its main tracks
on Third West street to the warehouse
10 rum across the sidewalk i'm front OF
Cereghino's property, and within fifteen
teet Of the front door of one of the
houses he owns I'm that vicinity. He
Drought injunction proceedings before
Judge Morse TO prevent the company
from laying it's tracks, which he said
would damage his property. and asked
mat the company be restrained for all
tlme TO come from ever laying a track
there.
When the case was argued Judge
Morse dismissed the temporary in
junction. ThereupOn Cereghino ap-
pealed to the supreme court. In his
opinion Justice McCarty says in part;
Two Questions Involved.
There are two questions involved
winch are decisive of this case. The
hIst is, has a city council delegated
power TO grant a franchise which will
burden the streets Of a municipality
with switch track to be operated as
steam railway exclusively for the
convenience and private use Of a pri-
Eate corporation to the detriment Of
me citizens residing on such street and
damage 20 their property abutting
thereon? And the second is can a
private citizen whose property abuts
upon the street where the switch is
proposed to be constructed, and which
thereby. invoke the equity power Of a
court TO restrain and prevent the
threatened injUry?"
The first question is answered in the
negative, and the latter i'm the af7rma-
i've. Commenting on the first interro-
cation, Justice McCarty says:
Why Injunction is Issued.
The public streets Of city are dedi-
Gated TO and held in trust for the use
or the public. and while there are many
xmas OF temporary uses of a private
character that may be and are daily
made portions of them. IL is well set
Jled by the great weight of authority
tnaL a city council has no power to
grant franchise or a permit to an in /
ulNldual or corporation authorizing /
such person or corporation to make a /
permanent use of a public street for
exclusively private purposes to the det- |
llInent of the public anu damage 40 ,,ri- /
NaLe property abutUng thereon"
commenting upon the action of the /
CITY council in granting such a fran
chise, the opinion says il cannot ss1Ib- /
1ect the streets and sidewalks of a /
municipality dedicated to public uses
OF the people to additional servitudes /
or burdens i'm aid of private undertalz- /
lngs and enterprises He saws. fur
Their, that the act Of the council sis
NOT only an unreasonable exercise OF
discretion on the part of the city conn 3
cil, but 1T is in violation Of the law"
After pointing out the unlawful man
neI in which the franc hise was e-,-,7,+ I
cd, the court reverses Judge Morse. d. !
rlectlng him to enter a permanent in /
Junction against the railroad company, /
restraining it from completing the |
switch.
MRS. HODGE rs ARRAIGNED.