Town of Arcata v. Arcata & Mad River Railroad

Paterson, J. The defendant was incorporated in July, 1881, for the purpose of constructing and operating a railroad from the northern end of Humboldt Bay to the North Fork of Mad River, on a line passing through [644] Arcata, which is an incorporated town. In due time thereafter the road was constructed. In March, 1885, the defendant applied to plaintiff’s board of trustees for the privilege of constructing and operating a side-track between certain points within the town limits, and an order was made by the board granting to defendant “ the right to lay and maintain a side-track from Dean & Campbell’s switch, across Seventh Street to and down J Street to Tenth Street, to intersect with the said track in Sharp’s field, subject to such rules and conditions as the board of trustees may think proper and just.” Nothing was said in the order as to the time within which the work was to be commenced or completed. The distance between the points named is about four and a half blocks. Two disconnected pieces of track covering a distance of about three and a half blocks were laid in 1885. Nothing further was done until September 10, 1888, when the gap between the two sections was filled, and the switch or side track was completed. On August 8, 1888, the board of trustees passed an order — of which defendant had notice before the work was completed — rescinding the order of March 9, 1885, granting defendant the privilege of constructing a side-track, it appearing to the board that up to that time the company had not taken advantage of the privilege granted, and on July 16, 1889, a resolution was adopted directing the institution of a suit to compel defendant to remove the t-rack. The complaint is in ejectment form. It alleges plaintiff’s ownership, subject to the right of the public to use the land as a street, defendant’s unlawful entry, and ouster of plaintiff, and its continued obstruction of the street. The answer consists of a general denial, and a claim that defendant is rightfully in possession under the order of March 9, 1885, and by virtue of the acts performed and money expended in pursuance of the franchise therein granted. It js claimed by appellant that the trustees had no power to grant -the use of the streets to the defendant for [645] a side-track on which to run cars for loading and unloading. But there can be no question, we think, as to the right of the legislature to delegate to municipal boards the power and discretion to say whether a railroad shall be laid in the streets, and if so, where, and under what conditions. The authority to construct the road on any highway or street is conferred by the legislature (Civ. Code, sec. 465), subject to the condition that the consent of two thirds of the members of the council or board must be obtained before any street or avenue of an incorporated city or town can be taken for such purpose. (Civ. Code, sec. 470.) Defendant obtained such consent in 1885. There is no merit in the contention that the order of March 9,1885, was a mere license revocable at the pleasure of the board. After the defendant had acted upon the terms of the order, and expended money in the construction of the road, the board could not rescind or recall the privilege it had granted, unless the company failed to comply with the terms or conditions of the grant. If this or any other action can be maintained against defendant, it must be upon the ground that the defendant, through its failure to complete the construction of the side-track when it should have been completed, has forfeited its right to maintain the same. Bespondent insists that such a question cannot be considered in an action of this kind; that a forfeiture must be judicially established in a direct proceeding on the part of the people, and cannot be brought up collaterally in an action of ejectment. At common law, a forfeiture did not operate to divest the title of the owner, or to restore to the government the thing granted, until a judgment of forfeiture had been obtained in a suit instituted for that purpose. Af,ter such judgment, under the doctrine of relation, the title was carried back to the owner as of the time of the happening of the event or the commission of the offense upon which the estate was conditioned. But where the [646] statute provides that a failure to pay at a certain time, or to complete the contemplated work within a certain time, shall work a forfeiture, no action is necessary to enforce the forfeiture. In such a case, upon the happening of the event of the commission of the oifense which is the statutory basis of forfeiture, the title to the thing forfeited immediately vests in the state. (Rush v. Jackson, 24 Cal. 316; Borland v. Lewis, 43 Cal. 572; Oakland R. R. Co. v. Oakland etc. R. R. Co., 45 Cal. 379; Upham v. Hosking, 62 Cal. 257.) There is some language employed in the opinion in People v. Los Angeles Electric Railway Co., 91 Cal. 338, which appears to hold that a forfeiture must in all cases be judicially declared, but the learned justice who wrote the opinion was not then considering the question of forfeiture based upon a failure to perform the work within statutory time. We do not think that section 468 of the Civil Code is applicable to this case. That section is as follows: “Every railroad corporation must, within two years after filing its original articles of incorporation, begin the construction of its road, and must every year thereafter complete and put in full operation at least five miles of its road, until the same is fully completed, and upon its failure so to do, for the period of one year, its right to extend its road beyond the point then completed is forfeited.” These provisions apply to the main road provided for in the company’s articles of incorporation, and not to every switch or side track which the company may find necessary for the proper conduct of business and the convenience of the public after the road has-been put in operation. The switch or side track under consideration was a mere convenience in the operation of the road which defendant was incorporated to construct and operate. It was no more a part of the work referred to in section 468 than the site for a depot or landing-place in a street of the town would be. The right to use the street for a switch upon which to run cars, for the purpose of loading and unloading, was a privilege that operated to the mutual benefit of the de [647] fendant and its patrons, the public. The board of trustees could have named the conditions upon which the company might exercise the privilege granted, including the time of the commencement and completion of the work, and could have provided that upon a failure to perform such conditions, the right to the franchise would be forfeited. The order of March 9, 1885, stated that the privilege was granted “ subject to such rules and conditions as the board of trustees may think proper and just.” But the board has never fixed any time or named any conditions upon which the right of the company to act and enjoy the franchise granted should depend. It is a general rule, applicable to legislative grants of the right to use public lands for a particular purpose, that where the time within which the grantees are to accept the franchise is not fixed in the grant, the grantees must signify their acceptance by commencing the work within a reasonable time, and by prosecuting the same to completion with ordinary diligence. (Rush v. Jackson, 24 Cal. 316.) But if it be conceded that such a rule is applicable to a municipal order like the one before us, it does not follow that this action can be maintained. In the absence of a statutory provision or municipal ordinance or order declaring a forfeiture for a failure to complete the work within a reasonable time, the right of the company to the use of the street could be terminated only by a judgment of forfeiture in an action commenced directly for that purpose. (United States v. Grundy, 3 Cranch, 151.) Judgment affirmed. Harrison, J., and Garoutte, J., concurred.