The Detroit times., 1912-10-02

plratiOn or the iIdHNhiSSH ~ heu enS
right 10 Ak any terms Il saw nc Tor
the future use OF these streets for
the operation and maintenance of a
street railway, and that any use by
! the ID. L.. r. 10 use streets for such
/ purposes. beyond the expired terms.
under the circumstances would be an
/ acceptance OF such terms.
| This contention. as stated in the
! city's brief. IS based upon the as.
sumption that the relations between
the rity and the H. L X. were in
Z all respects analogous 10 these exist
. Ing Between a landlord and tenant
of real estate under similar circum-
stances.
/ .The matter OF defining the relation
/ between the ID, l.. II. and Tie city
( undar the circumstances OF this case
\ is lot without its difficulties. We
! think. however. that the city in stat
! ing its contention that the relations
In all respects are analogous to the
relations between landlords and ten
ants OF real estate under similar cir
cumstances makes an impossible com.
! parison, for the reason IN similar
circumstances could not arise between
an ordinary landlord and tenant. In
the instant case the municipality:
hich has but a circumscribed inter
est in its streets, has granted the
right TO the ID. u. r. to occupy certain
portions OF the public street for the
purpose OF maintaining and operat-
ing therein street railway under
certain terms and conditions accept
ed by Il for certain length OF time.
which has expired This presents
relation which cannot be described rs
a tenancy The ID. IT, RS rights un-
der the franchises terminated by their
expressed provisions. and because of
the interest Of the municipality in and
To its streets, no such relation as a
tenancy has been created or can exist.
THE right of the II. u. r. was an
incorporeal right, created for the pub
lie use, which imposed no additional
servitude upon the public streets.
Car Service Necessary.
This court has held that the use
OF a city street by a street railway
Is in furtherance of the business for
which the street is established and
relieves the pressure OF local bust
ness and local travel; that such rail
ways are only a modern and impTov-
ed use of the streets as a public way
and necessary in populous cities. The
use is the same, the method only diff
ferent
The ID. L. r. never acquiesced in
or accepted the terms imposed in case
of the us eof these streets BY them
selves after the expiration OF the
franchises. On the contrary, by writ
ten notices, the city was Noticed of
its claim that the franchises had not
expired that the charge fixed for
further use of the street was exces-
sive and confiscatory, and that it
would not accept the same This po-
sition was taken by the ID. u. r. and
has been subject of determination in
this litigation. The cases cited by
the city in support OF its contention
are not In point. because the rela-
tions OF the parties in these cases in
no instance are similar to these i'm
the instant case, and the subsequent
use by defendant having been a de-
fiance of compliments claim, did not
establish an acceptance.
While the cases cited. TO the eff
feet that municipality on the expi.
ration OF the franchise % a street
railway may impose such terms as 1t
sees fit for the further use. are ac-
cepted authority none of them de-
termines that they become imperative
without acceptance by the railway.
No authority has been cited to the ef-
feet that municipality may arbitra-.
rily without consent OF the grantee,
impose terms upon a street railway
in granting franchises. Such a hold
ing would be repugnant to the uni
versally accepted doctrine that such
franchises are mutual contracts.
Home Rule Upheld.
While the legislature In establish
ing the Michigan railroad commission
and fixing its power has given it GER
tain specified rights relative to GER
tain street railroad and interurban
railways, yet IL is evident from the
particular legislation referred TO that
there was no legislative intent 10 re-
ject the established policy of main
tanning local self-government and TO
institute a new policy in deroEation
thereof. The franchises involved in
this litigation were all granted for a
period not to exceed 80 years and
were grants solely for the transporta-
ton of passengers. and therefore
come within the express proviso above
quoted"
The act referred to is as follows:
Provided, further. That nothing
In this act contained shall apply
TO street and electric railroad en-
gagged solely In the Transportation
OF passengers within the limits OF
cities or within a distance OF Ave
miles of the boundaries thereof.
Continuing, the opinion says:
IT is apparent that the legislature
had no intention of providing for In.
reference by the Michigan Railroad
commission with the authority of
municipalities over their streets, and
the contention of the contrary is I'M
tenable."