Appellees Brief — Seaboard Air Line Ry. v. City of Raleigh

SUBJECT INDEX

PAGER

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Jurisdictions of United States courts ............... 1

Permit to the Raleigh & Gaston Railroad Company to

make use of the sidewalk in question was temporary

in its nature and did not embody the idea of the

granting of a permanent franchise ............. 2

The Board of Aldermen did not have the right to make

i ee ee Ee ee pare sori ehera ove wkeda ion a gta 3

Right to construct sidetrack not given by statute ...... 5

Commissioners of the city have right to order removal.. 7

Assent of the City of Raleigh will not be assumed by

peneen of Sopen aE With oi 6c cd oo 7

Occupation of sidewalk by rairoad created no contractual

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PAGE

Permission of City of Raleigh to Raleigh & Gaston.... 2

Power Co. v. Colorado Springs, 105 Fed., 1 ........ 4

Railroad v. Railroad, 77 U. S. (19 L. E.), 849 ...... 3

Bovindl of TH. O©., Boe. BBCT occ ccccsercccccccrccee 5-6

Turner v. Commissioners, 127 N. C., 153 ...........- 8

QUESTIONS IN THE CASE

. The permit to the Raleigh & Gaston Railroad Company

to occupy the sidewalk in question was temporary.

2. The Board of Aldermen of the City of Raleigh did not

have the right to make the grant.

3. Right to obstruct the sidewalk not given by statute.

4. Commissioners of city have right to order removal.

5. Assent of city will not be assumed by reason of lapse of

time.

6. Occupation of sidewalk by railroad created no contractual

rights.

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1916

—— ——

SEABOARD AIR LINA RAILWAY

Appellant

v

THE CITY OF RALEIGH No.330

and James I. Johnson, O. G. King, and

R. B. Seawell,

Commissioners of the City of Raleigh.

APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE EASTERN DISTRICT OF

NORTH CAROLINA.

BRIEF FOR DEFENDANTS—APPELLEES.

STATEMENT OF THE CASE.

The Statement of the Case as contained in the brief of the

appellant is substantially correct.

ARGUMENT.

The jurisdiction of the United States District Court is ad-

mitted by the appellees, and therefore, the case before the

court turns upon other points.

On the 5th day of August, 1881, the Board of Aldermen

of the City of Raleigh, granted permission to the Raleigh &

Gaston Railroad Company, which it is admitted was the pred-

ecessor of the Seaboard Air Line Railway, to occupy the

sidewalk on the east side of Salisbury street between Jones and

Lane streets for railway purposes, said permission being in

the following language:

“Upon application of John C. Winder, General Superin-

tendent, the Raleigh & Gaston Railroad Company was grant-

ed permission to occupy the sidewalk on the east side of Salis-

bury street, between Jones and Lane streets, for the purpose

of running a track.”

The Foregoing Permit to the Raleigh & Gaston Railroad Company

to Make Use of the Sidewalk in question Was Temporary in Its

Nature and Did Not Embody the Idea of the Granting of a

Permanent Franchise.

It appears from the facts agreed that the track in question

when constructed in 1881 was used in connection with the

cotton compress in the cotton season, and was used for the

purpose of a team track at other times.

The terms used by the Board of Aldermen in granting per-

mission to the Raleigh & Gaston Railroad to use this side-

walk, in themselves show that it was the intention of the

Board to grant a mere temporary permission, and not to con-

fer a franchise in perpetuity on the railroad. The informal-

ity of the whole proceeding tends to show this; nothing fur-

ther than the quotation above appears on the minutes of the

Board. No vote was taken by the Board. There was no con-

sideration. The sole object seems to have been to accommo-

date the Raleigh & Gaston Railroad by giving it convenient

access to a cotton compress on its property. It is well known

that cotton is a heavy and unwieldy commodity, and to be

handled economically, trucking distances must be short. It

follows that the railroad would use the track on Salisbury

street for loading and unloading freight when the cotton sea-

son was over. Taking all these matters into consideration, it

certainly raises a grave doubt whether it was the intention of

the Board of Aldermen to grant to the railroad the right to

occupy and use the sidewalk in question in perpetuity.

This being the case, the doubt must be resolved in favor of

the public and against the railroad.

Minturn vy. Larue, 23 How., 435.

In Holyoke Co. v. Lyman, 15 How., 500 (512), Mr.

Justice Clifford said: “Wherever privileges are granted to

a corporation, and the grant comes under revision in the

court, such privileges are to be strictly construed against the

corporation and in favor of the public and nothing passes but

what is granted in clear and explicit terms.”

Mr. Justice Harlan, in the case of Knorville Water Co, v.

Knorville, 200 U. S., 22, said: “It is true that the cases to

which we have referred, involved in the main, the construction

of legislative enactment, but the principles they announce

apply with full force to ordinances and contracts by munic-

ipal corporations in respect to matters which concern the

public The authorities are all agreed that a municipal cor-

poration, when exerting its functions for the general good, is

not to be shorn of its powers by implication. If by contract,

or otherwise, it may, in particular circumstances, restrict the

exercise of its public powers, the intention to do so must be

manifested by words, so clear as not to admit of two different

or inconsistent meanings.” See also:

Railroad v. Railroad, 77 U. S. (19 L. E.), 849.

Davis v. Mayor, 14 N. Y., 514.

27 Am. & Eng. Ene., 154.

IL.

The Board of Aldermen Did Not Have the Right to Make Grant.

The Board of Aldermen of the City of Raleigh did not

have the power to grant to the Raleigh & Gaston Railroad the

right to make exclusive use of the sidewalk in question. The

Charter of the City of Raleigh, at the date of the ordinance

of August 5, 1881, conferred the following powers upon the

Board of Aldermen in respect to the streets:

4

“That the Commissioners shall cause to be kept clean and

in good repair streets, sidewalks, and alleys. They may estab-

lish the width and ascertain the location of those already pro-

vided and lay out and open others and may reduce the width

of all of them.”

The above seems to be about the general and customary

authority given to the governing bodies of towns and cities

in respect to their streets. The words, “and may reduce the

width of all of them,” cannot be construed to mean that the

Board of Aldermen had the power to give the railroad the

right to make exclusive use of a street or part of a street.

Whatever rights the railroad acquired were to be reasonable

and not inconsistent with the rights of the public.

Griffin v. R. R., 150 N. C., 312.

Moore v. Power Co., 163 N. C., 300.

Power Co. v. Colorado Springs, 105 Fed., 1.

An examination of the authorities shows that the rights,

privileges and powers given a railroad or a public service cor-

poration on the streets of a town must be reasonable and not

inconsistent with the rights of the public.

In the case at bar, the Board of Aldermen, if we accept the

railroad’s point of view, attempted to give to the Raleigh &

Gaston Railway the exclusive privilege to use the sidewalk on

the east side of Salisbury street, between Jones and Lane

streets, to the absolute exclusion of the public.

Pedestrians, who it is admitted use the eastern sidewalk of

Salisbury street in going to and from the business part of

the city, are obliged to cross to the western sidewalk between

Jones and Lane streets for the reason that the sidewalk be-

tween these streets on the eastern side is taken up entirely by

the railroad track.

It is freely admitted that a steam railroad has the right to

make a reasonable use of a street, not inconsistent with the

rights of the public, and that where the governing body of a

5

municipal corporation has authority to grant such railroad a

franchise for such purpose, it is entirely proper for it to do so,

but it is earnestly contended that the governing body of a

town under the very general powers quoted above (from the

Charter of the City of Raleigh) would not have the power to

grant a railroad the exclusive right to maintain a side track

on a sidewalk within one block of the State Capitol, compel-

ling pedestrians to abandon that side of the street completely.

IIL.

Right to Construct Sidetrack Not Given by Statute.

The appellant contends that its occupation of this sidewalk

is validated by Revisal 1905, Sec. 2567, Sub-sec. 5, which is

as follows:

“All existing railroads shall have power to construct their

road across, along, or upon any stream of water, water course,

street, highway, plankroad, turnpike, railroad or cans! which

the route of its road shall intersect or touch, but the company

shall restore the stream or water course, street, highway, plank-

road or turnpike road thus intersected or touched, to its for-

mer state or to such state as not unnecessarily to have impair-

ed its usefulness.” Nothing in this chapter contained shall be

construed to authorize the erection of any bridge or any other

obstruction across, in or over any stream or lake navigated by

steam or sail boats, at the place where any bridge or other

obstruction may be proposed to be placed, nor to authorize the

construction of any railroad not already located in, upon or

across any street in any city without the assent of the corpor-

ation of such city.”

It is contended that general statutory authority does not

benefit the appellant for two reasons:

a.

The statute requires the railroad making use of the street

to restore the street, when intersected or touched, to its for-

6

mer state, or to such state as not unnecessarily to have im-

paired the usefulness. Upon this point District Judge Con-

nor says: “Conceding, for the reasons assigned, pro hac vice,

that the plaintiff has the rights and privileges conferred by

this section, free from the limitation in regard to ‘the assent

of the corporation,’ it is confronted with the duty imposed

by the statute to restore the . . - thus intersected or

touched, to its former state, etc. It is doubtful whether the

language of the section can be construed to authorize the

exclusive appropriation of the street. The sidewalk is a

portion of the street appropriated to the use of pedestrians.

To construe the grant of the right to construct its road ‘across,

along, or upon’ a street, always of much greater width than

a railroad track, and the cross ties, as a grant of the right to

occupy the entire street or sidewalk, is not permissible in the

light of the recognized rule of construction of such grants of

power. How is it possible to restore the street to ‘its former

state’ if the track oceupies its entire width! Statutes must

be given a reasonable construction.”

b.

Section 2567, sub-sec. 5 of the Revisal of N. C., was

enacted by the State Legislature in the Session 1871-72, and

had reference to all railroads chartered under the provisions

of the act. The Raleigh and Gaston Railroad was already in

existence, and therefore this act had no reference to that

road. The permission to construct the side track on Salis-

bury street between Jones and North streets was secured in

1881, and the provision of section 2567, sub-section 5 (Sec.

19820 of the Code of 1883) was not extended to all railroads

until 1883, after permission to oceupy the sidewalk had been

granted.

Whatever rights the railroad acquired were of a contrac-

tual nature, and must be construed in the light of statutes

existing st the time of the grant.

7

IV.

Commissioners of the City Have Right to Order Removal.

The present charter of the City of Raleigh, which was in

force when the ordinance of 1913, ordering the removal of

the side track was adopted, gives the Commissioners of the

City the following power:

“To direct, contract and prohibit the laying of railroad

tracks, turnouts and switches in the streets, avenues and

alleys of the city, unless the same shall have been authorized

by ordinance,” ete. (Printed record, page 17.)

It is argued by the appellant that this is an inhibition upon

the power of the commissioners of the City of Raleigh to

order the removal of tracks from the public streets when

such tracks “shall have been authorized by ordinance.”

This argument of course assumes that the railroad is located

on the sidewalk under a valid ordinance. The proposition

assumed as true is the main point in controversy.

Vv.

Assent of the City of Raleigh Will Not be Assumed by Reason of

Lapse of Time.

It is argued by plaintiff that the right to occupy the side-

walk in perpetuity is conferred upon it by acquiescence on

the part of the city for a long period of time.

This argument assumes that the Board of Aldermen had

the right to grant the exclusive use of the sidewalk in the

beginning. This is denied. If the right to grant exclusive

use of this sidewalk did not exist in the Board of Aldermen

in the first instance, and such we earnestly contend is the case,

the railroad has maintained a public nuisance in its occu-

pancy of this sidewalk, and could acquire no property rights

by user under such circumstances.

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8

The Supreme Court of North Carolina has repeatedly held

that no title to a street could be acquired by adverse pos-

session.

Turner v. Commissioners, 127 N. C., 153.

Moore v. Carson, 104 N. C., 481.

Revisal of North Carolina, 389, which is as follows:

‘No person or corporation shall ever acquire any exclusive

. right to any part of any public road, street, lane, alley,

square, or public way of any kind by reason of any occu-

pancy thereof or by encroaching upon or obstructing the

same in any way, and in all actions, whether civil or criminal,

against any person or corporation on account of any en-

croachment upon or obstruction of or oceupaney of any public

way it shall not be competent for any court to hold that such

action is barred by any statute of limitations.”

The case of Turner v. Commissioners, 127 N. C., 153,

relied upon by plaintiff is not in point, for the reason that

the property acquired in that case by adverse possession was

not a street, but part of a common, which was alienable by

legislative act. Indeed, in delivering the opinion in that

case, the Court held that statutes of limitation do not run

against a municipal corporation holding land in trust for

public use unless it has the power of alienation.

VI.

Occupation of Sidewalk by Railroad Created No Contractual

Rights.

This phase of the case has been elsewhere touched upon,

but it may be well to here give it further consideration.

In the first place the permission granted for a special pur-

pose, to-wit: to afford shipping facilities to the cotton com-

press was temporary in its nature, and the permission was

cranted as a favor, not as a contractual right. This is shown

by the extreme informality of the proceedings. The rail-

saat

9

road company must have so cousidered it at the time, or

otherwise it is argued it would have safeguarded its interests

by securing its grant in a proper manner and more formally,

and in the second place it is argued that even if the Board of

Aldermen had so desired they could not have given exclusive

permission to use this sidewalk in perpetuity. If they had

the power to allow the railroad company to occupy this side-

walk for a block, they had power to grant the use of the side-

walk for the whole length of the street, or for that matter to

allow the use of the sidewalk for the whole length of any

street in Raleigh. This manifestly would be beyond their

powers.

In this connection it is well to consider the language of the

statute, Revisal, Sec. 2567, Sub-section 5, which plaintiff

claims gives authority for the grant of such a franchise.

“To construct its road across, along, or upon any stream

of water, watercourse, street, highway, plank road, turnpike,

railroad or canal which the route of its road shall intersect

or touch, but the company shall restore the stream or water-

course, street, highway, plank road and turnpike road thus in-

tersected or touched, to its former state or to such state as not

unnecessarily to have impaired its usefulness. Nothing in

this chapter contained shall be construed to authorize the

erection of any bridge or any other obstructions across, in,

or over any stream or lake navigated by steam or sail boats,

at the place where any bridge or other obstruction may be

proposed to be placed, nor to authorize the construction of any

railroad not already located in, upon, or across any streets in

any city without the assent of the corporation of such city.”

The occupation of a sidewalk for loading or unloading

box cars and storing empty box cars thereon renders the side-

walk utterly useless for other purposes. A railroad may

cross a street or run along the middle of a street, and while it

is an encumbrance it does not totally destroy the usefulness

of the street. In the present case it is admitted that pedes-

10

trians have to cross the street to the sidewalk opposite this

sidetrack, in using this part of Salisbury street.

In conclusion we respectfully call the attention of the

Court to the fact that the cases quoted by the plaintiff to sus-

tain its position on this phase of the case are not in point.

In the case of Owensboro v. Cumberland Telephone Com-

pany, 230 U. S., 58, the language of the ordinance under

which the corporation claimed its franchise is specific and

free from all ambiguity. In that case the telephone com-

pany was granted the right to erect and maintain its poles

upon the streets of the town. It was expressly stipulated

that the grant should not be exclusive and certain duties were

assumed by the eompany, inuring to the benefit of the citi-

zens of the town.

This is likewise true in the case of Boise Artesian H. & C.

Water Company v. Boise City, 230 U. S., 84; Old Colony

Trust Company v. Omaha, 230 U. S., 100, and other cases

relied on by the plaintiff in error. 3

Respectfully submitted,

JOHN W. HINSDALE, JR.,

Counsel for Appellee.

Commercial Printing Company, Brief and Record Printers, Raleigh

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