Florida Central & Peninsular Railroad v. Ocala Street & Suburban Railroad

Maury J.: There is no plat accompanying the bill filed in this •case showing the definite location of the streets of the locus in quo, but from the allegations in the bill itap — 320 — pears that the track of the appellee company was laid in Magnolia street from the public square north to North Sixth street, and then deflected westward on the latter street to the old station of the appellant company, situated just west of the northern end of Magnolia street. Prom the entire bill it is clearly shown that the street railroad company did not occupy any portion of Magnolia street north of North Sixth street before the ordinance of August 4, 1891, indicated by exhibit “B” in the statement, was passed. The bill does not base appellee’s right to occupy the portion of Magnolia street north of North Sixth street upon a location of any line there before the passage of the ordinance of August 4,1891, but the theory is that by the acceptance of the terms and conditions of the ordinance of September, 1889, shown by exhibit “A” in the statement, it required an exclusive vested contract right to build, maintain and operate its line of road upon all the streets, lanes and alleys in the city of Ocala as then laid out, or thereafter to be opened, for a period of ten years. It is true, we think, that the ordinance of September, 1889, does undertake to-vest in appellee such a right, but we do not see that the municipal corporation of Ocala had authority to confer it upon appellee. The correct view is that the powers of a municipal corporation ‘ ‘in respect to the control of its streets are held in trust for the public benefit, and can not, unless clearly authorized by a valid legislative enactment, be surrendered or delegated by contract to private parties, either corporate or natural.” 2 Dillon’s Municipal Corporation (4th Ed.), sec. 716; Davis vs. Mayor, etc., of New York, 14 N. Y. 506, S. C. 67 Am. Dec. 186; Birmingham & Pratt Mines Street Railway Co. vs. Birmingham Street Ry. — 321 — Co., 79 Ala. 465; Jackson Co. Horse R. Co. vs. Interstate R. T. Ry. Co., 24 Fed. Rep. 306. The powers; conferred upon municipal corporations in this respect’ and contained in the general law for the incorporation! of cities and towns (sec. 17, page 248, McClellan’s Digest) are as follows: “The city or town council shall' have power to regulate, improve, alter, extend and. open streets, lanes and avenues, to cause encroachments and obstructions, decayed buildings and ruins, to be removed; to construct drains and sewers, and-make to the parties injured thereby such reasonable, compensation, and charge upon those benefited such reasonable assessments as may be agreed upon by the-said council and the said party or parties, and in case no such agreement can be made, then the council shall appoint five discreet persons, holders of real estate in-said city or town, to ascertain and fix on the one hand a fair, equitable assessment, and on the other a just, compensation, and that the said assessment shall be a lien on the real estate improved and assessed, and that every person who enters his particular drain into the main chain, or common sewer and receives a benefit thereby from draining his land, shall pay to the city or town his proportional part of making or repairing the same.” We discover no authority in this provision for the municipality to surrender its control over the streets of the city, or to tie up its hands by an exclusive contract so as to preclude a subsequent council from exercising the trust vested in it over the streets for the benefit of the public. The general rule is that a municipal corporation can exercise only such powers as are granted to it in express terms, or those necessarily or fairly implied in or in — 322 — ■cident to the powers expressly granted, or those that .are essential and indispensable not simply convenient, to the declared objects and purposes of the corporation. Jacksonville Electric Light Co. vs. City of Jacksonville, 36 Fla. 229, 18 South. Rep. 677. While the •ordinance under which appellee claims does undertake to vest in it the exclusive right to construct railroad tracks on all the streets of the city of Ocala as then laid out, or that might be opened for a period of ten years thereafter, we are of the opinion that it is void so far as such exclusive rights are concerned on account of an absent of power in the municipality to confer them, and that it was within the power of a subsequent city council to exercise such control and regulation over the streets as. conferred by statute. The bill, including the exhibits made a part thereof, shows that the city council by ordinance abandoned the north end of Magnolia street north of North Sixth street before appellee laid any track thereon, and appellee’s right on this part of the street as formerly laid out is based upon its alleged vested contract right ■under the ordinance in its behalf. If the city had authorty to abandon the part of the street in question and thereby divest it of the character of a city highway we do not discover any right of appellee to penetrate it with its railroad track. The authority conferred upon the city in reference to the abandonment of streets is that contained in the section already quoted, to ‘ ‘regulate, improve, alter, extend and open streets, lanes and avenues.” The rule of construction already applied should be kept in mind, and a public street of a city can not be destroyed, even in part, unless the authority to do so is conferred in express .terms, or by necessary implication. Hoboken Land — 323 — & Imp. Co. vs. Mayor, etc., 36 N. J. L. 540; Mayor and Aldermen of Jersey City vs. Central R. R. Co. of New Jersey, 40 N. J. Eq. 417; Mayor and Council of Newark vs. Delaware, L. & W. R. R. Co., 42 N. J. Eq. 196, 7 Atl. Rep. 123. It was held in Brook vs. Horton, 68 Cal. 554, 10 Pac. Rep. 204, that an alteration by competent authority of an existing road or way is a discontinuance of those portions of the way which do not come within the newly assigned limits although no special order of discontinuance is made. Decisions in Massachusetts hold that the establishing of an alteration in a highway is in law a discontinuance of the part not included in the alteration. Commonwealth vs. Inhabitants of Westborough, 3 Mass. 406; Commonwealth vs. Inhabitants of Cambridge, 7 Mass. 157; Bowley vs. Walker, 8 Allen 21. Express power to alter streets is conferred upon municipal corporations by the provision of the statute mentioned, and, in our judgment, a municipality can alter a street by abandoning a portion of it when done in the reasonable exercise of the powers conferred for the public benefit. The bill in the present case alleges that the ordinance of August 4, 1891, purports to convey the fee of the land over which Magnolia street had been laid out to appellant, and since that date it had set up an exclusive claim to the portion of said street north of North Sixth street. The ordinance does not undertake to convey to appellant the fee to any portion of Magnolia or North Sixth streets; Portland & W. V. R. R. Co. vs. City of Portland, 14 Oregon, 188, 12 Pac. Rep. 265; nor does it, in terms, undertake to confer any rights or privileges whatever on appellant in the portion of Magnolia street north of North Sixth street. That portion of the street is abandoned, and — 324 — the privileges granted as to laying tracks and yard purposes are confined to North Sixth street. Some-clear legal right must be shown in order to successfully invoke the injunctional powers of the court, and appellee’s sole right to penetrate the abandoned portion of Magnolia street is based upon its asserted vested right under the ordinance of September, 1889, and we have already seen that no such right can be-claimed under that ordinance. The result is that the-bill fails to show any sufficient ground for the relief prayed in favor of appellee, and the demurrer should have been sustained. It is proper to state in reaching this conclusion that no question is presented as to the rights of abutting property owners in the abandoned portion of the street, nor, as against the alleged vested-right of appellee under the ordinance, is there any question of abuse or wrong exercise of power in altering the street, and nothing is decided as to such matters. In Gray vs. Iowa Land Co., 26 Iowa, 387, it was decided that a municipality could, under a delegated power to vacate streets, rightfully order the vacation of a street, and the exercise of such power, when discreetly exercised and with due regard to individual rights, would not be restrained at the instance of a citizen claiming that, as a land owner, he was interested in keeping open the public streets. In McGee’s appeal, 114 Penn. St. 470, 8 Atl. Rep. 237, it was held that an injunction will not be granted to restrain a railroad company from destroying a bridge, a part of a public street which a municipality, by a contract with said company, under an act of the-Legislature, had agreed to vacate, because the street had not been vacated by a formal ordinance of the325 council of said municipality, as equity considers that as done which ought to have been done. The propriety of swearing to a bill before the solicitor signing the same is involved by the discussion here, but it is not necessary to decide it now, and it may not arise again. The decree overruling the demurrer to the bill is reversed, the cause remanded with directions to sustain the demurrer and dissolve the injunction, with leave to appellee to amend, and apply for an injunction, if deemed proper to do so. Order to be entered accordingly.