Market Street Railway Co. v. Central Railway Co.

Stbeet Raileoads.—The maintenance of a horse-railroacl on the streets of a city is a mere special mode of rising the street, and does not exclude the public from the use of the street, nor prevent the crossing of its track by another railroad, provided the crossing is effected with as little damage as may be. Bight of Railboad Company to Occupy Stbeet.—If one street railroad company is occux>ying or using a street without proper license to do so, it is no concern of another railroad company having a railroad on the same street, but must be inquired into by proceedings on behalf of the public.

Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco. The plaintiff had a' street- railroad on which it was running cars for the carriage of passengers, extending along the centre of Market street, San Francisco. The road was constructed under a permission granted in an act of the Legislature passed April 6, 1857 (Stats. 1857, p. 178), and acts amendatory thereof passed in 1858, 1861, and 1863. On the twenty-ninth of October, 1875, the Board of Supervisors of the city and county of San Francisco passed an ordinance granting to the defendant the right to lay down and operate railroad tracks along Market street from Turk to Powell, and thence along Turk and Powell. The defendant claiming to act under this ordinance, laid down two railroad tracks on Turk street from Taylor street to Market, thence along Market street to Powell, and thence along Powell street to Geary. One of these tracks passed along Market street on the north side of the track of the plaintiff’s railroad track, and five feet distant therefrom; and the other passed along Market street on the south side of the plaintiff’s track, and -five feet distant therefrom. The track which passed along the southerly side of the plaintiff’s track crossed the defendant’s track in Market, after leaving Turk street, and again crossed the defendant’s track in turning out of Market into Powell street. The distance from Turk street to Powell along Market is several blocks. The defendant had nearly completed its tracks on Market street, and was about to arrange so as to cross the plaintiff’s track at Turk and Powell streets with its track which passed down the southerly side of the plaintiff’s track. This action was commenced to enjoin the defendant from acting under the city ordinance, and from operating its railroad upon the route described in the ordinance, and from disturbing the plaintiff’s track, in any manner. The judge made an order that the defendant show cause why the injunction should not be granted, and, in the meantime granted a restraining order. The defendant answered, and the application for the injunction was heard on the pleadings, and on affidavits. The motion was denied, and the restraining order was dissolved. The plaintiff appealed.