The opinion
Ross, J., dissenting:
I agree that the plaintiff acquired no rights under the act of the Legislature of 1872; but I do not think it follows from this that the defendants have the right to interfere with the track of the plaintiff. Section 502 of the Civil Code, which was in force at the time of the making of the grant under which the defendants claim, and which has been in force ever since, is as follows: “Work to construct the railroad must be commenced within one year from the date of the ordinance granting the right of way and the filing of articles of incorporation, and the same must be completed within three years thereafter. A failure to comply with these provisions works a forfeiture of the right of way as well as of the franchise, unless the uncompleted portion is abandoned by the corporation, with the consent of the authorities granting the right of way—such abandonment and consent to be in writing.”
Within a year from the date of the grant to the defendants— that is to say, prior to October 10th, 1879—they (defendants) dug a trench at the corner of Jones and Union streets, about thirty-two feet long, about two feet wide, and from two to three feet deep, and then covered it over with macadam. Nothing more was done by them towards building their road until the latter part of June, 1880, shortly after which time this action was commenced. These facts clearly appear from the record, and are undisputed.
I am of the opinion, that the defendants forfeited the right of way granted to them by the ordinance of October 9th, 1878, by failing to comply with the provisions of the statute under *179 which the grant was made. When the Legislature said that the work must be commenced within one year from the date of the ordinance granting the right of way, and must be completed within three years thereafter, it meant that there must be a bona fide commencement of the work, and a bona fide prosecution of it, with reasonable diligence, to completion, within the prescribed time. It never intended that a sham commencement should answer its requirements. The trench dug by defendants was no more a compliance with the law than would have been the removal of half a dozen clods of earth.
The statute itself having declared the forfeiture, there was no need of a judicial declaration. (O. R. R. Co. v. O. B. & F. V. R. R. Co. 45 Cal. 365 .)
Having forfeited whatever rights they acquired under the ordinance of November 9th, 1878, the defendants had no right to interfere with the street, or with the plaintiff’s tracks.
Whether the use of the street by the plaintiff was with or without license, is no concern of the defendants. (Market St. R. Co. v. Central R. Co. 51 Cal. 583 .)
I therefore respectfully dissent from the judgment.