Show AGAINST THE SAPID Judge Zaue Allows a Temporary Injunction HIS LENGTHY OPINION IN FULL t What the limpid Transit Company Must Do Their Request Will be Heard at Once In the case of the Dooly Block company ct 31 vs the Salt Lake Rapid Transit com cornI pany Judge Zane yesterday delivered tho oiiowing pinion The prayer of the complaint in this case i S that the detendant be cnjolnoil from coubtruct lag its streSS railway on Second South street Between First East and Seventh West street 2i appears from the evidence that tire plaintiffs are tne owners of valuable blocks or lots abut tiajjon Second South street and that on some of them there are buildings either erected or m course of construction These buildings are large and costly and are used or to be use I r for mercantile or other purposes I up pears also from the evidence that tins street is eighty feet wIde betwc n the gutters on either l side ana that the Salt Lake City Kail Way company daring the year ISSJ laid down two tracks upon it toiao seven feet apart and be1 tween them erected a line of poles with brackets attached upon Waich vctc placed a feed wire 1 ana two trolley wires suspended over the center of the too tracks These two tracks occupy 4 about seventeen feet and anl the cars in passing over them project beyond the outidc rails Tae third tmc lropOSCd to be put down by the Ue 1 Scndan will occupy about nine feet in addition and nat trick with two others will occupy some twentysix and a half feet in the street which nth the projection of the cars in pacing would snake nearly thirty feet It appears thai south of the south rail of this tiacic there will be a itpaie of about thirtyfive and a half feet and one on-e north bide between the sidewalK and the Tail about twentyeight feat It also appear Thnt there are electric light poles telegraph poles and telephone poles 1 audition to this lne of poles in the center of the street and the de fendant proposes to erect ahother line of poles j tie center of the street near the poles of the Salt Cake Street Railway company and still another line of rOles on the north side of the btreeu These pOles I infir will be 15 ort 12J feet apart and will be connected by wires upon which dcrendanD reposes to suspend its tiolicy wires The evidence further shows that these Tracks are so laid that they are not on a level with the surface of the street and that If they were the fctects not being planked or paved that teams passing along would gradually moe the dirt away so that it would be difficult to I cross them except at right angles and therefore these tracks form to some extent an obstruc alan in the street The ordinance permits the street cars to run fit a speed twelve miles an hour The evi dence also shows that 1 the defendant puts down its track the space north of the rail wll be ch that i teams were standing ri that side of the street atd particularly i they stood with their heads to tne street delivering goods from trucks and drags there would hardly be I room for wagons to pass betwen the teams so standing and the street car track Under thee circumstances the plaintiffs insist that their nLe8sari rights upon the tstreet are interfered with un I am disposed to bod that under the statutes of L tab the city counc 1 has the power to give to street railways either horse cr electric the right ofway upon the streets but ihs power to give the ri is rightofway not an arbitrary one without limitations The general rule is that where the legislature authorizes a sped tic legblature thing to be done by the council the u discretion or power to do it cannot bj questioned by the courts unless i is in violation of some pun ci pIe or provision In this case the legislature itself is not a sovereignty but assuming that it liis the power it gives the council the right to grant the rightofway without mentioning the limitations I must however have limits and if it must have limits i lmits and they are not ex pressed those limits must be lixed by justice and reason that is the general rule Tre authority therefore of the council as view it to grant these franchises as they are termed I is one tact must be exercised r termed justly which means the same thing 1 pre ume becauseanything that is unjust I re ro garded as unr8 jnable In2d of Dillon on municipal corcpratiors coroprtors t section 722 on page SOT this question is dis cussed to some extent and the general rule laid down as the author understands it which is Whether the use of a street for a horse rail way is an additional buden upon the land of ri adjoining proprietor Is a question upon which the re is a diversity of judicial opinion 4 The author regards the appropriation of a stieet for a horse railway constructed used in the ordinary mode to be such orinat a use a < falls within the purpose for which the streets are dedicated or acquired under the power of emi nent domain VVfcen authorized or logiCal by the public authorities this is a public use within the fair scope of the intention the proprietor when he dedicates the street 01 1 is 01 paid for property to be used as 1 street Sue proprietor must be taken to contemplate al al improved and more convenient modes of use which are reasonably consistent with the use r of the street by ordinary vehicles and in the usial mode There 1 solid ground to dial in tround dlstn guish between horse railways in streets as or dmarily laid and used which do not exclude the public and common railways which cmmon raiways are gen erallj B J constructed as altogether to exclude a portion of the street from puolic use and in the accustomed modes ana yet there is much to recommend as sound tae view that where prop crty 1 cedicatcd to the public for 1 pubh stree the dedicacr must be presumed to in tend that it may be used as a street in such ray as the legislature representing the public and best acquainted with the public needs may au thorize the limitations being that such Use must not deprive the abutter of his props rights and casement in the rghts street or destroy ordinary uses of the street as a public hi hway open to all It would seem that the author here adopts the icw which I think is the general adopt beter one that the council may authorize the use of a reasonable portion of the street for horse r all way hut u must use i in common with 0th raiI That portion of the poron street must be used as a highway They Lave not the right to give to 1 a street railway company or any private corpora lion or per oi the exclusive use of any port Lion of St It is a highway and i is only upon the principle that street railways furnish amode of ravel that is cheap rapid comfortable and convenient upon the streets that the privil ego is granted t them and while the custom was form rly to travel on horse back t trcl hore or in venizle of some kind these carriages are so construete that tbey run on tracks and are contlned to a particular portion of the street but they should HO use the street as that it may be used by other persons for travel I is true that the cars ii are the right of way because that is necessary They can not turn out and off of their track I while wagons and vehicles can and trcis reasonable rule that the one which can do so must turn out aside from that tur frm their rights arc I similar to the rights of other persons travel lag upon the streets In section r73i of the same bool the author I tars These judgments and those that folio tuetn rest upon the foundation prinel pie whether the fee in the street is the abuttor sub I jert to the rights of the public that is to tOe paramount rights of tho public for street Uses i proper or whether the fee is in the public In trust for < treet use proper in either case and coually in both cases the abuttor is entitled to the benettt of the street for street use proper subject of cure to the legislation and mun final regulation and that such rights are pro per rights of the abettor which can onlv 4 be taken away by the legislature upon the condition of legslaturc compensation S and tbt abutting owners right in the street is nit atlected by the source from which he derive his title If the abutter owns the fee of the street his rights may be considered to feb legal in their nature i he does not own the fee the c rights are in the nature of equitable ease meats in fe The soil of the street being the beint ervlcnt the abutting owners lot being the dominant tenement Among the most impor Nr por tant of those lights or ntre the abut tors richtto access to light and t air The court accordingly that s > o far as elevated railroad structures interfered with such rights or easements while the legislature might authorizthcir erection and nuthori cton use yet this only could be done by the right of eminent domain 4 4 s and tho condition of conditon making corn pen saRan to the abutting for abuttng owner the damage th s property actually sustained rhen the author the result of his gives lc reCections upon 1 the subject as follows The folowl result of the t au thors reflection upon this Subjects that the views of the court of appeals was SJund I and I just bound because they recognized the para mount nature of the public right to pt the street this new and necessary form of public I use just because they recognized and declared that the abuttor has special property rights or easements In the street so Tar as they I ale special and individual in their nature ho is not called upon equally to sacrifice without com pensation for the public Use In fact the court says the just and true doctrine is tulr but par parThis author with others which have been i re leered to and which I will not take the time now to refer to specifically has two t speli1caly ha purposes One lsthatthcpower of the puroses power council must bo exer I eer cised reasonably and justly and the other is i that the abutting proprietors have easements In the street for the purpose of ingress and egress A business house or dwelling egess dwelng house I i unless yon can get out of it is no better than apron t S a-pron i is worth nothing for occupation The way of ingress and egress to and from lots t proper s by the sidewalks and carriages cad f wag Jns and the owners have the right to t ic use of the street also for carrying purposes In j mercantile business especially it is necessary to j approach a place by wagons on the street The value of property oasistsof the uses tnat S it pay be putto situated as i is and the party has a right t put i t that use that would be be most valuable In this case the plaintiffs b platls being or are soon In have 4 mercantile houses and they have an I easement In the street in connection with other plaintiffs This is regarded as a property right I ijbtCh dun not be faltoa away without compen i sato n It has been said that no part of their Prope tty is taken but i you take away from the I owner Of a business house a use or easement tVhlch renders his property valuable you take hva k to that extent his rghtsof property Soros courts make distinction betweencases where properly is actually taken and where it Is damaged Tnls distinction Is not sound in my judgment because 1 a man has a hundred feet of grqund ten feet which are worth 10000 in value and you take that ton feet you take from that man SiOUOOtn value but if you build some structure or run a railroad tight along in front of his premises so as to obstruct the use of his premises and damage and depreciate them to the amount of 100u the effect is the same on him be has lost luOOD by it In eithsr case it is taking private property for public usa without with-out just compensation I am of the opinion that the authority of the council I limited by reason and by justice and tbey haye no right to grunt more than a rcado able portion of the street they have no right to grant the exclusive use of i they have no right to perma a 11 erections in It mat will result in unnecessary hazards and danger to tho public because life i the most imp jrwat of all rlzhls belonging to man and they have no right to interfere with his rights of private property I the Interefere with the rights of private property they must pay for it I am of theo the-o Ion that the plaintiffs have an easement in this strett of ingress and egress to and from their premises and aithougn that does not arise In this case they ought not to be annoyed and iujuied by Smoiso and dnst thrown mo thoirhouses because that is intciferecce wIth tho usa ot 1 nor ougat they unnecessarily to bo j I 1 Lmnissed and annty d by disagreeable noises particularly at lato and unusual hours of the i 1 night rs often bunpens in these cases but those i probably it is not necessary to discuss fui tier he e The question then arises would the construction I construc-tion of ibis third track take more tban a reasonable reason-able portion of tho street lorstreet irpurposes laud woud It injure the rights of thcabut or3 not I anticipated when the streets wr aedicatsd or taken by condemnation for mijltc uses Evi I dence has been offered tending to show that tdjs third track with lbs additional incum iWo1oinc r brances of the poles and wires taken with the otiier incumbrancc on the street would depreciate depre-ciate the property of the plaintiff to I largo amount and t sere is evidence also tending to i show that the additional travel brought upon j the street by these cars from the suburbs and j different par would compensate for tnat depreciation de-preciation Possibly it might in part but the question is ir the travel is part to two tracUs they would get all the benefit of that travel ir this defendant shoild run its cars upon the two tracks that are already down because it would make no difference whether the people came in on two tracks or on three The two tracks which are on this street could accommodate all the travel of the two companies and probably ten times more because on one track all the cars run one way and on the other track all cars run the other way There is no necessity los more than two tracks There may be a necessity for the fendants connection with the depots and WIt tbewest side of the town Their system it cms embti cjs n number of roads some com ciei and some in course of constructoa and home projecteJ extending cast west aorta and lutb and of course it is important to the travel ing publii that they have a convenient oanec t on between their systems and i is als im port ant that when persons get on In outlying districts and distant places from the depot they can ride to t e depot without being compelled to get oIl aid pay some other company acldl onnl fare This wouldnt bo mucn to soma fOmB l > ecp e but i might be a great deal more to men women and children who have to travel on less roads and who have not much money to pare It is a matter of convenience and to the inte rest of the public who wish to travel on hesestrcet cars that they travel as cheaply as possible and that the roads upon which they ravel reach to or near their premises and Unit when they get on they can go to wherd they dam ire i am of the opinion that this defendant ought to have convenient connections with the wes side and because tae other company happened to get i rn tbe street it has no right to sa > tins I this company shill not go there also and seas no rights n that respect Neither of them has any bus iness on tie street except as the public god demands it For tnelr own par Icular interest the city would no more gve 1 to these companies taan to any private individual and the companies sao nlci make their usa and occupancy of the streets conform to the nubile convenience ando and-o the public good and to the rights of propel tj wners along the street and t > exercise their rivilege in the way that it would most likely be safe to people traveling on the streets AYhlle you may say that a man must look out antI get an out of tee way prudent tutu as a role will ao so but the most prudent men are not always pru dent and regard should be had for men I women and children some of them not discreet raveling on the street in vehicles or on foot rho crossing of three tracks on which cars are running in dlfere I directions is more danger OUR of course than two NJW the question urfsss in view of the cir umstances in view of the fact that the puolic pUJIc good demands that these slrees car companies hall so operate their loads as to permit the use and occupation of the streets for other mo des of travel in view of the fact that it is later to have two tracks than one in view of bo fact that it Is injurious as I think the evi dence shows to have three tracks when two racks can do the business as well is it right sit justice to the public I it justice to the property holders to say that the public shall bo made to suffer that these property holders shall have their property depreciated that ad ditional risks and hazards shall be brought upon these streets and the travel upon the street by other means Incommoded simply because be-cause the two companies that are dependent upon the public for whose benefit they are patted r nU pa-tted to put money in their pockets stand up and say that tbey will not cooperate at least its it-s unpatriotic it is unjust and I is wrong i It is true that the city council not thinking irobably what it was doing gave the right of way to this Salt Iiike City Railway company to lay Its tracks on Second South street without reserving any rights to the city to require It to permit upon reasonable terms the use of its track by other companies necessity for which there might be ana as I think there is a great necessity here to this Raold Transit c impany which has its road running in many portions of the town not reached by the Salt Lake City Kailwav company It Is proper and right that It should be permitted to pass through on this street I is said that they have up on City Creek street a quarter of a mile north a right of way but no track und that they have a right of way on Fourth South street a quarter of a mile south I a person wanted to get back into this part of town he would have to get off and come around half a mile unless he paid this company coming across an additional fare Xow under these circumstances the interest of these property holders on this street the interest In-terest of the traveling public demand these at these two roads use the same two tracks and i they are disposed to disregard the interests of the public there ought to be seme way to require re-quire them to comply and respect the rights of the public and property owners I have bren referred to the fifth division of section 3 volume 2 of statutes of Utah of 18S8 which read All rights of way for any and all purposes pur-poses mentioned in section 1103 and any and all structures and improvements thereon and the lands held and used in connection therewith shall be subjected to be connected with crossed or Intersected by any other right thof way or improvement structure thereon They shall also be subjected to the limited use in common with thc owner thereof when necessary neces-sary but such uses of crossing intersection and connection shall be made in manner most compatible com-patible with the benefit and at least prevent injury in-jury This would seem to indicate that where a street car company has two tracks on the street if it becomes necessary for another company com-pany to run cars through oa those tracks to make connections with other roads and depots their use should be limited and that tho other company should be allowed use it in common with them That Is the intention I think of hat section Section 10 relating to eminent domain do-main reads Under the provision of this chap ter the df eminent cr right domain may be exercised exer-cised in behalf of the following public uses Among them are wharfs docks piers shutes booms Terries toll roads byroaas plank and turnpike i roads steam and horse railway reservoirs voirs canals ditches flumes aqueducts pipe and pipes for public transportation supplying mines and farmers and neighbors with water draining and reclaiming lands and for floating logs and lumber on all streams not foatnf It has ben suggested that an electric street car company is not one of the recognitions in behalf of which this may be exercised that it is not one of the purposes mentioned At tho time this law was enacted the probabilities are that the authors did not know or did not think of D horse railway operated by elecric motor bas t it i ba-s fair to assume that the intention was to give the right no i only to steam railroads and horse railroads but all other railroads operated in similar way though by a different motor I presume there would be no dIfficulty for one of these electric street car companies i they wished to have some ground condemned for its use in proceeding under this statnte I In eludes steam railroads and horse railroads and it means by horso railroads evidently roads that are run in cities upon streets I is true 1 that it may be said that there will be ad dittonal difficulties in giving to another company com-pany the use of an electric street car track because be-cause cot only you gie them the use of the track but you give them the use of the wire running over It and the current upon It while It whie ia the case of a steam epfiinr the como aoy securing the common usa furnished its own own engine and fuel and in tho case of a horse railway company furnishes its own horsed but there is no more hacrcdnecs about electricity that I know of than there is about ties and tracks in tho street It is proper whichever owner holds subject to the right of the public to appropriate it under the power cf eminent domain The right of eminent domain of course Is an arbitrary one but It is one that is neccssarv and in all civilized countries must be exercised To say that this company hero has a species of property which this law does not reach Is placing i above other classes of prop crty The right to the UBO of ibis street prop mdjroafl wire and the electric current are local rights and they are valuable ones which the law will protect but no more so than other prop arty and whenever it becomes necessary for the public use to appropriate it by making a rea sony able compensation I see no reason wh son-y it should not be done to the extent that the use of these two tracks is given to the other rail road it is regarded as appropriating the use or I property under the right of eminent domain for I public use It i i upon that ground that both companies have got their nghtsso far noon tho ground that they were serving the publfc and the use to wblch their property was put was a public one and the publlu necessity alI public good demanded it I can be no injury to either of these defendants to use the same tracks The new company by paying an equitable amount i of tie cost and expense of the tnese two tracks I has the 1 use ot them The Salt Lake City Rail j way companv still has its use of them and it haq I just that much less capital inv stcd which It I can apply to other purposes and uses It is a i bone at for both or them They can operate i I their roads cheaper and better their own in J 1 teres demands it The public interest demands de-mands It and the property holders Interest dos mam do-s I With that view 1 am clearly of the opinion that If the Salt Lake City Railway company com-pany will not malco an equitable adjustment I the Rapid Transit company should proceed under the statuo eminent domain and talc a portion of it I the Rapid Transit company wisli to apnly in pursuance to this statute the I court will hear the case at the very first opportunity tunity and at an early day so ihat there will be no unnecessary delay and they can acquire I this right in that way I Ihe injunction is allowed |