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Cereghino v. Oregon Short Line R. R. Co.

the construction of said switch track is within the charter powers of the said defendant railroad company.

"(7) That the construction of said switch track into said lot of said Consolidated Wagon & Machine Company, as set forth in the plaintiff's complaint herein, will not cause unreasonable obstruction to the ordinary use of said street and sidewalk for public travel, nor will the plaintiff's right of access to her said premises or that of her said tenants be unreasonably impeded thereby, nor will the operation of said track as contemplated by a line of steam railway impose a deadly or other unreasonable peril to life or limb to persons living upon said street, or particularly to children or other persons using said street and sidewalk; and the court further finds that said switch track as proposed will not be a public or private nuisance.

"(8) That the construction and operation of said switch track for the uses aforesaid will not impose upon the plaintiff's property the additional or any burden because of obstruction of standing freight cars thereon to such an extent as to seriously diminish the value of the plaintiff's property, or to substantially destroy the value thereof; that the construction and operation of said switch track in the manner aforesaid will not be the taking of the plaintiff's property, nor will it irreparably damage the same, or the plaintiff's estate therein."

As a concluson of law the court found: "(3) That the said plaintiff has a complete and adequate remedy at law for any damage resulting to her property and estate in consequence of the construction and operation. of said switch track."

In addition to those found by the court, the undisputed evidence in the case shows the following facts: Freight cars are frequently left standing by defendant railroad company on the switch tracks to the south of plaintiff's premises and across the sidewalk and footpaths where such walks or paths cross the streets at the intersection of Third West and Eighth South streets, thereby compelling plaintiff and her tenants and other

Cereghino v. Oregon Short Line R. R. Co.

people who may chance to pass these sidewalks at such times to leave them, and take to the main part of the street, and on some occasions to walk through mud, in order to pass around such freight cars. Each of plaintiff's tenants has a family of small children, some of whom are of school age, and in going to and returning from school they pass along the sidewalk in front and to the north of plaintiff's premises, across which walks the defendant railroad company intends to build the proposed switch tracks; and each of these tenants has declared his intention to vacate the premises should the switch tracks be constructed and operated as contemplated, and some of them have so notified the plaintiff, claiming (which claim is supported by the evidence) that the construction and operation of the switch would greatly increase the inconvenience and danger to them and their families in going from and returning to their homes, as the only avenue of access and egress to and from the premises would be over and across some part of the network of railroad tracks which will directly and closely inclose plaintiff's property, as fully appears from the following diagram of the property, streets and railroad tracks mentioned, which map was introduced in evidence, and made a part of the bill of exceptions:

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Cereghino v. Oregon Short Line R. R. Co.

There is another switch track extending from the main line of the Denver & Rio Grande Western Railway Company's railroad track into and near the center of block 11, hereinbefore mentioned in the findings of fact, and which terminates in the vicinity of the west end of the lot upon which the warehouse referred to is being erected, and it is the intention of the Consolidated Wagon & Machine Company to either have this lastmentioned switch track extended, or an independent switch constructed from the Denver & Rio Grande Western Railway Company's main line to the west end and around to the north side of its warehouse. Plaintiff appeals.

MCCARTY, J., after stating the facts delivered the opinion of the court.

There are two questions involved, which are decisive of this case. The first is, has a city council delegated power to grant a franchise which will burden the streets of a muy with a switch track to be operated by a steam railway exclusively for the convenience and private use of a private corporation, to the detriment of the citizens residing on such street, and damage to 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 property would be specially damaged thereby invoke the equity power of a court to restrain and prevent the threatened injury?

1

The public streets of a city are dedicated to and held in trust for the use of the public, and, while there are many kinds of temporary uses of a private character that may be and are daily made of portions of them, it is well settled by the great weight of authority that a city council has no power to grant a franchise or a permit to an individual or corporation authorizing such person or corporation to make a permanent use of a public street for exclusively private purposes, to the detriment of the public and damage to

Cereghino v. Oregon Short Line R. R. Co.

private property abutting upon such street. Wood v. Mears, 12 Ind. 515, 74 Am. Dec. 222; 2 Dillon, Mun. Cor., 660; Callahan v. Gilman (N. Y.), 14 N. E. 264, 1 Am. St. Rep. 840. The record shows that, while the railroad company applied to and obtained a permit from the city council to build the proposed switch, it did so at the request of the defendant Consolidated Wagon & Machine Company, and that the switch is intended for the sole and exclusive use, benefit, and convenience of the last-mentioned company. The petition on which the permit was granted recites in part as follows: "Said track so proposed to be constructed to be for the accommodation of the business transacted at said warehouse." The switch is not only intended exclusively for private purposes, but its construction and operation in conneetion with that of the main line and the three other switches now being operated in the vicinity of plaintiff's premises would be an unreasonable, and, we might add, an unlawful, use of the street, as it would, in effect, be almost entirely appropriated in aid of a strictly private enterprise, thereby diverting it from the uses for which it is held in trust, to the detriment of the public, and irreparable damage to plaintiff's property abutting thereon, which property, as shown by the record, would be greatly impaired, if not entirely ruined, for residence purposes. The public at large have an interest in the construction and successful operation of railroads designed for the transportation of passengers and freight, and because of this interest the defendant railroad company, in common with all others, is given the right to invoke the law of eminent domain, and subject private property to its necessary public uses; but it has no right, either under the law of eminent domain or a pretended franchise from a municipality, to directly or indirectly take private property for the purpose of building a line of railway or a switch track designed and intended to be used exclusively for the convenience and accommodation of a private business. And as stated by counsel for the appellant in their brief,

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