City of Red Bluff v. Southern Pacific Co.

*669 BURNETT, J. This cause was tried in the superior court of Tehama County, before Honorable John F. Ellison, judge thereof, who rendered a decision in favor of plaintiff. The facts of the case and the reasons for his conclusion are clearly set forth in an opinion filed in said superior court by Judge Ellison, and, as I am in accord with the views therein expressed, I take the liberty of quoting said opinion as follows: “The plaintiff brings this action to obtain a decree for the removal of certain obstructions to travel placed in Cedar Street in the city of Red Bluff by the defendant corporation. “Paragraph II of the complaint alleges that during all times since 1876 there has existed and does now exist within said plaintiff, and running through the entire width thereof from east to west, a certain public street and highway known as Cedar Street. That during all of said time said Cedar Street has had a width of eighty feet, and that during all of said time said street has been and is now a regularly and legally established and existing public street and highway of the said city of Red Bluff for the use and convenience of the citizens of Red Bluff and of the public generally for all kinds of travel and use. “The complaint then alleges that the defendant is a railroad corporation and maintains a line of railroad across the streets of Red Bluff, including Cedar Street, over which it operates trains and cars. “Paragraph VI alleges: “ ‘That the said tracks of defendant within and across the said Cedar Street are so constructed and do now so exist that the rails of said tracks are a considerable distance above the level of the ground and surface of the street- and in such condition as to obstruct and prevent entirely the use of said street by vehicles and teams and other conveyances at the places where said tracks cross the said street. “ ‘That defendant has also made and now maintains an embankment within said street of such size and condition as to prevent the use of said street by vehicles and teams and other conveyances at said point and place in said street. ’ “The complaint alleges that plaintiff has demanded of defendant that it so construct its tracks and property that the street may be used by vehicles and teams across said tracks, but defendant has neglected and refuses to do so, and *670 threatens to keep said tracks and property in such condition that said street cannot be used by teams and vehicles. “The prayer of the complaint is that said tracks and property of defendant in the condition they now are be declared a public nuisance, and that the defendant be required to abate the same, and to put its property in such condition that Cedar Street may be traveled by teams and vehicles as a public street and highway. “The answer of the defendant consists of: “1. Denials of certain allegations of the complaint; “2. It sets up a certain resolution of the board of trustees of the plaintiff city made May 13, 1902, and claims that this resolution closes Cedar Street for all time as a public highway; and “3. It sets up certain proceedings before the state Railroad Commission as an estoppel against the plaintiff’s maintaining this action. “The plaintiff has filed a general demurrer to the whole answer; a general demurrer to the 'First Answer,’ and also a general demurrer to the ' Second Answer. ’ The plaintiff has also made a motion to strike out what is designated as the ‘Second Answer to the Complaint.’ “Taking up the demurrer to the ‘First Answer to the Complaint’: This consists entirely of denials, and the question to be determined is, Are the denials sufficient to raise a material issue? [13 “The first paragraph of the ‘First Answer’ denies that the embankment or tracks is or are an unlawful obstruction of Cedar Street, or an unlawful interference with the use of the street by the public. “These denials so far are clearly insufficient to raise an issue of fact. “The obstruction of the street and the interference with travel are admitted, as is also the allegation of the complaint that defendant threatens to keep said street in such condition that it cannot be traveled by vehicles. The only denial is of the legal conclusion that the obstruction and interference are unlawful. “The complaint alleges that since 1876 there has existed and does now exist in said city a highway known as Cedar Street. This allegation of the complaint is not denied. The complaint further alleges that Cedar Street has been *671 and is now a regularly and legally established and existing highway. “The answer denies that since May 13, 1902, Cedar Street has been or that it now is a regularly or a legally established and existing street and highway of Bed Bluff, and_ denies that it has since that date been open to the use of the public. This is the only denial, and it is very doubtful whether it raises an issue. It does seem to deny that Cedar Street is an existing highway, and, perhaps, this raises a triable issue. . . “The demurrer to the first defense will be overruled. “As to the second defense and the demurrer thereto: [2] “ The first part of it consists of a copy of a resolution passed by the board of trustees of the city of Bed Bluff May 13, 1902. This resolution, after certain recitals, was as follows: “ ‘It is therefore ordered that said Cedar Street between Madison Street and Monroe Street in the city of Bed Bluff be and the same is hereby temporarily closed to public travel and that the S. P. Co., be -granted permission to complete and occupy said boiler-house, and that said company be permitted to also occupy and use said Cedar Street so closed for the purpose of carrying on its railroad business, and until the further order of this or some future -board of trustees of the said town; “ ‘Provided that this permission and use shall be and they are upon the express condition that the title of the said street thus closed to public travel shall be and remain in the public as a street and hghway, and that no permanent rights herein are hereby granted to the said Southern Pacific Company or its successors in interest, and that said company or its successors in interest shall not by user or adverse possession acquire any title thereto as against the public or the town of Bed Bluff. ’ “The answer then alleges that since the passage of said resolution Cedar Street has been closed to travel. “The resolution speaks for itself, and it needs no argument to reach the conclusion that such permit to use Cedar Street temporarily did not cause it to cease to be a highway, and did not give the S. P. Co. any right to obstruct any longer than the city saw fit to permit such obstruction. The resolution expressly provides: ‘That no permanent rights *672 therein are hereby granted. ’ It is conclusive that this resolution gives to the railroad company no justification .to obstruct said street at this time against the wishes and will of the city. “The second part of this ‘Second Defense’ sets up certain proceedings had before the Railroad Commission as a bar to this action. “This part of the answer alleges that the city trustees made application to the Railroad Commission to compel the railroad company to repair its tracks and place the same in such condition that Cedar Street could be traveled by vehicles. And that after a hearing the Railroad Commission denied the petition of the city. “Prom this the answer draws the conclusion: “1. That by making said application to the Railroad Commission the city acknowledged and assented to the jurisdiction of the Railroad Commission to make an order denying the right of the plaintiff to remove the obstructions to travel placed thereon by the defendant; and “2. That under the constitution and laws of this state the Railroad Commission had exclusive jurisdiction to entertain an application to remove unlawful obstructions placed in a street and interfering with its use. [3] “As to the first part of this claim it is sufficient to say that consent never confers jurisdiction of the subject matter. If the constitution and laws of the state do not confer jurisdiction upon the Railroad Commission to permit the railroad company to obstruct the streets of a city to the extent of preventing travel thereon, then it has no such jurisdiction, and parties by appearing before it cannot give it jurisdiction. “That the board of trustees could not bind the city by any act of it submitting the question of the use or removal of unlawful obstructions from its streets to the Railroad Commission is apparent. [4] “Not only is the board of trustees of a city without power to submit the use and repair of its streets to the Railroad Commission, but even the electors of such city cannot by an affirmative vote at an election submit such matters to the commission. “Section 1 of an act approved June 7, 1915 (Stats. 1915, p. 1273), provides that a city may surrender its powers to *673 supervise and regulate public utilities to the Bailroad Commission, but ‘This act shall not be construed to authorize any city to surrender to the Bailroad Commission its powers of control to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience and safety of the general public, including matters such as the use and repair of public streets by any public utility, ’ etc. “Section 2 of the act provides for an election to submit the question of surrender of control over public utilities to the Bailroad Commission, but contains the same proviso as section 1 above quoted. “The situation is that in 1902 the S. P. Co. accepted from the city of Bed Bluff a permit to temporarily use one of its streets so as to obstruct travel thereon, and until the further order of the board of trustees, and that the permit should not confer on the railroad any permanent right, and said railroad company should not by use or adverse possession acquire any title to the street. “The company by accepting this permit assented to all its terms and conditions. It agreed that it would only claim the right to use the street in a manner to obstruct the travel only so long as the city did not cancel the permit. “This is a suit to enforce such contractual obligation, and we are met with the proposition that the courts are without jurisdiction to determine the contractual rights of the parties and decide whether or not the railroad company is complying with its part of the agreement. “I cannot assent to this view. “Counsel for defendant in his brief says: ‘We do not contend and never have contended that the city has not the right to maintain an action against one who obstructs its streets. ’ “It seems to me this concession puts an end to the defense set up. “The complaint alleges that the company is obstructing the street. This is admitted, and this suit is to remove the obstruction. “A temporary permit to one who is building a house on the side of a street to pile building material in the street to the extent of stopping travel until it can be worked into the *674 ■building does not cause the street to cease to be a public highway. [6] “The temporary permit granted to the railroad company in this case and the temporary cessation of travel thereon did not destroy its character as a public street and highway, and when the railroad company continued to obstruct it after the permit was withdrawn it became a trespasser, to all intents and purposes, as it would have been if it had in the first instance obstructed the street without permission of the trustees. “It is an astonishing condition of the law in this state, if true, that if a railroad company puts a fence across one of the streets of a city without permission, no court can entertain a suit to have it removed, but the city must let it remain there until the Railroad Commission in its discretion orders it removed. Of course, in fairness to counsel it is proper to say that he would not and does not make such a claim, but it seems to the court that the position taken when pushed to its logical results leads to the above. “In Civic Center v. Railroad Com., 175 Cal. 453, [166 Pac. 356,] the following language is used which I think is the law controlling the point now under discussion in this ease: “ ‘The city of Los Angeles has the power to open, widen,extend and improve streets, and to regulate the ordinary use thereof. The Railroad Commission has the power to make orders, which are binding upon railroad companies under its supervision, to abolish grade crossings of the public streets of a city, and to order a separation of grades, so that railroads and streets shall not be upon the same level. It cannot vacate the streets or direct a cessation of the public use thereof.’ “This decision was rendered after the action of the commission as set forth in the answer, and is in conflict with its views upon the matter under consideration. “The court is of the opinion that the ‘Second Defense’ set forth in the answer does not state a defense to the action.” To the quotation from Civic Center v. Railroad Com., 175 Cal. 441, [166 Pac. 355], may be added the following from City of Los Angeles v. Central Trust Co., 173 Cal. 327, [159 Pac. 1170]: “The opening, laying out and improvement of streets within a city, and the regulation of the manner *675 of their use are matters of much greater concern to its inhabitants than to the people of the state at large, and they are clearly municipal affairs, the control of which has always been deemed within the proper scope of municipal powers.” It was further held therein that this power “includes the power to open a street across an existing railroad as well as anywhere else within the city, and to regulate the operations of the railroad at such crossing as well as elsewhere,” and, also, that in reference to these matters—being a municipal affair—the provisions of the charter on the subject are “paramount and supersede general laws which would otherwise apply thereto, so far as operations within the city are concerned.” It is true that the city of Los Angeles operates under a freeholders’ charter, but the corresponding provisions in the municipal act governing the city of Red Bluff in relation to the streets are of similar import to those affecting Los Angeles, and they should be subject to the same interpretation and application. But, after all, as I view it, the case is substantially the same as though appellant had constructed its tracks across an existing street, so as to obstruct and prevent the use of said street, in the accustomed way, by the public. Said contract with the city does not affect the situation. It may be doubted whether the trustees could enter into such a contract, so as to bind the public, but, assuming its validity, it operated to grant only a temporary privilege, and it was subject to withdrawal at any time. [6] We have, therefore, essentially an obstruction to an established highway; in other words, a public nuisance, and there is no doubt of the jurisdiction of the superior court to abate such a nuisance. The situation does not involve such regulation of a crossing as the law has delegated to the cognizance and authority of the Railroad Commission. It may be granted that, if said commission had found upon conflicting evidence that no such obstruction existed, the courts would be bound by such finding, but that situation is not presented. Indeed, the conclusion of the commission goes upon the assumption that, by reason of said tracks, the street was rendered impassable to ordinary vehicles. Attention is called to certain decisions from other jurisdictions seemingly holding to a contrary view to that of the *676 trial judge herein, but the facts therein clearly distinguish them from this case. In New York & N. E. R. Co. v. City of Waterbury, 55 Conn. 19, [10 Atl. 162], the highway was not constructed and the defendant undertook to complete it across the plaintiff’s railway at grade. This was in 1886 and it was, in direct violation of the statute passed by the legislature in 1883, [Laws 1883, e. 107, sec. 2], providing “that hereafter no new highway shall be constructed across any railroad at grade.” No question of an obstruction of a highway already constructed was involved. In referring to the statute the court said: “It means that although a highway may have been previously laid out, partially constructed and even built upon, if it has not actually been completed for public use across the rails of the railway, such crossing shall not thereafter be made.” In Paterson & R. R. Co. et al. v. Mayor et al. of City of Paterson, 81 N. J. Eq. 124, [86 Atl. 68], the highway had not been constructed, but simply “laid out on paper,” and the principal question to be determined by the court was whether this amounted to a construction of the highway within the contemplation of the statute providing that “no highway shall be constructed across the tracks of any railroad company at grade . . . without first obtaining therefor permission from the board” of public utility commissioners. The court very properly held that the highway was not constructed and that the case fell within the provisions of said law. New York Cent. & H. R. R. Co. v. City of Buffalo, 200 N. Y. 113, [93 N. E. 520], involved also the construction of a new street across a railroad track already built, and the court held that the ease was governed by the statute, [Laws 1897, c. 754 sec. 1], providing that “when a new street shall be constructed across a steam surface railroad, the street shall pass over or under the railroad or at grade as the board or railroad commissioners shall direct.” I think the judgment should be affirmed, and it is so ordered. Hart, J., concurred.