
    No. 12,002.
    Crescent City Railroad Company vs. New Orleans & Carrollton Railroad Company.
    In order to authorize one street railway company to occupy the tracks of another there must he legislative permission for the same, or it must result from such necessary implication from the grant that the abandonment of the grant would necessarily result from the non-occupancy of the roadbed of the street railway first occupying the street.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.
    
    JParrar, Jonas & Kruttsehnitt for Plaintiff, Appellant.
    
      
      .Henry P. Dart for Defendant, Appellee.
    Argued and submitted March 9, 1896.
    Opinion handed down April 20, 1896.
   'The opinion of the court was delivered by

McEnery, J.

The plaintiff and defendant are street railway corporations.

The latter was in position on Oarrollton avenue, when a change of route was granted to the plaintiff corporation to run through the same street on the neutral ground. This expression “neutral” ground has occasioned some confusion in the interpretation of the grant to plaintiff. Neutral ground had its origin in its application to the unclaimed part of Canal street, which was the dividing line between two municipalities. It has no significance in its application to other streets. The centre of Carrollton avenue was occupied by a gravel road before the defendant’s road was located thereon. On ■either side there was a wide space unoccupied, but used at times as a playground. The City Engineer located the plaintiff’s road under the grant to them to pass through Oarrollton avenue on' what he then construed to mean the neutral ground. This location was accepted by the plaintiff and it commenced work for the construction of its track as located. This location did not interfere with the defendant’s tracks. The plaintiff, for some reason, abandoned work -on its location, and about a year afterward the City Council, by ordinance, declared the neutral ground to be the centre of the street through which the defendant’s railway was located. In this ordinance there is no grant to the plaintiff’s road to run over the tracks of the defendant.

In plaintiff’s brief it is stated that the facts make a street a neutral .ground, and not any ordinance of the City Council.

To the time that the ordinance delaring the centre of the avenue, ■on which defendant’s road was located, neutral ground, the neutral ground cf the avenue was the unoccupied part of the street. This is the testimony of the City Engineer. Williams, an engineer, who had always lived in Carrollton, and'on Carrollton avenue, says in his ■■testimony that when the grant to plaintiff was made the sides of Carrollton avenue were grass-grown and used as a playground, which up to 1892 was considered as neutral ground, so far as appearance» warranted such, designation.

From his earliest recollection the centre of the avenue was occupied by a roadway until á graveled roadway was built. It was after the making of this gravel road that the defendant’s road was constructed on it. Therefore there is no force in the argument, because a part of what was once neutral ground is now graveled and improved, it could not have been the intention of the city government-to permit a road to be built on it.

There is no question of the intention of the Oity Council involved! in this question. It is a fact at issue whether or not the-geographical features of the avenue are such as to comp.-l the occupancy of defendant’s roadbed. If they are not of that character, no grant by implication can’be inferred.

The grant to the plaintiff is that it shall construct its road on Second from Broadway fo Carrollton avenue, thence through the neutral ground of Carrollton avenue to Fourth street, and thence along Fourth to the parish line. There was no legislation declaring any part of the street neutral ground when this ordinance was passed, and the passage of the ordinance subsequently is an evidence that, no designation had been given by the city to any part of the street as neutral ground. The only neutral ground to which the ordinance-could apply was to the unoccupied part of the street.

The ordinance could not, after the grant, by simply designating a part of the street neutral ground, give any additional powers not conferred by the ordinance. Nor-could it thus authorize, by mere implication, the plaintiff to occupy a part of the street, which right had not been previously conferred.

After the passage of the above ordinance, the plaintiff corporation attempted to go on defendant’s tracks, and invoked the proceeding» in this suit to expropriate the roadbed, cross-ties, etc., necessary for its occupancy of the defendant’s tracks.

The question at issue is, can a street railway company, occupy the-track of another, unless by express authority or by necessary implication.

In several cases we have decided that by special grant of legislative authority, one railway company, to reach its destination to its-terminal point, may occupy ¡the tracks of an existing company. .In, the grant to the plaintiff this doctrine was recognized, as authority is [given them] to cross and occupy certain tracks until they reach Carrollton avenue.

But as to Carrollton avenue there is no authority granted to occupy the track of the defendant corporation. Was then this permission given by necessary implication?

On this point we are without precedents in our jurisprudence. But as the decrees in the cases of Railroad Company vs. Railroad Company, 41 An. 564; Railroad Company vs. Railroad Company et al., 44 An. 490; Railroad Company vs. Railroad Company, 44 An. 54; Railroad Company vs. City, 44 An. 730; Railroad Company vs. City, 44 An. 748; Railroad Company vs. Railroad Company, 44 An. 1071, were based on the authorities from other States, which had preceded us in street railway facilities, this court ought to look to the authori-' ties in the other States for instruction and for precedents.

In Sharron Railway Company, 9 American State Rep., 133, it was held, to justify the taking by one railroad company for the same use, under the right of eminent domain, the land acquired by another com - pany, which is necessary for the latter to economically and expeditiously carry on its present and prospective business, that there must be a necessity so absolute that without it the grant itself would be-defeated, and not a necessity created by the company itself for its-own convenience or sake of economy.

In this ease no question can arise as to Che impairment of the obligation of a contract, except so far as stated in case of Railroad Company vs. Railroad Company, 44 An. 491, that a street railway occupying the tracks of another can not interfere with the company's road, over whose tracks it runs its cars, so as to disturb its schedule time, in accordance with its contract with the city, and thus practically evict it from its roadbed. And here we will state that the necessity for express permission by the City Council, or an implication from the authority granted, exists, so that the schedule time of the road first occupying the street can not be interfered with.

In granting the authority the city must undoubtedly have the opportunity of so expressing itself as to shield itself from damages.

In the collation of the authorities in the case referred to, under the head of “How Legislative Intent must be Expressed,” we find it stated and amply supported by citation of authorities that an “ implication does not arise except from the language of the legislative act, or from its being shown by an application of the act to the subject matter to be a necessary condition to the beneficial enjoyment and efficient exercise of the powers expressly granted, and then only to the extent of the necessity.” “There can be no implication,” says the Supreme Court of Pennsylvania, in speaking of the right of a railroad company to take by implication a portion of the road of a street railway, “unless it arises from a necessity so absolute that without it the grant itself will be defeated. It must also be a necessity that arises from the very nature of things over which the corporation has no control; it must not be a necessity created by the company itself for its own convenience or for the sake of economy. Pennsylvania Railroad Company’s Appeal, 93 Pa. St. 150; Appeal of Pittsburg Junction R. R. Co., 122 Pa. St. 511.”

In the matter of the City of Buffalo, 68 N. Y. 167; 118 Mass. 391-561.

Alexandria & Fredericksburg Railway Company vs. Alexandria & Washington Railroad Company, 40 Amer. R. 743, and cases cited in note.

The several cases referred to herein in our reports, and the invariable doctrine announced in the other States of the Union is that a street [railway company owns the structure laid by it in the highway and have a superior right to the space covered by its tracks, Pierce Railroads, 252; Woods Railway Law, Sec. 229, p. 681; 14 Gray, 69; 76 N. Y. 530; 34 Iowa, 527.

And its rails can not be used by other competing common carriers, driving railway carriages without special legislative authority. Woods Railway Law, 681; 72 N. Y. 330; 4 Stew. (N. J.) 525; 81 Ill. 523.

On page 681, Woods Railway Law, it is stated that “ a franchise can not be taken under the general law, but must have for its basis legislative authority, or must arise from necessary implication.”

And on page 703, the same authority says: “In the construction of railways, it necessarily occurs that highways and other railways must be crossed, and although the power is not expressly given, it is necessarily inferred. But authority to take the bed of either a highway or railway longitudinally for any considerable distance will not be inferred, especially when it is possible to build the road without doing so.” As a conclusion from all the authorities, the same author thus expresses what is a permission by implication to interfere with the franchise of an elder grant: “If, however, the two grants can not stand together, and npon an application of the grant to the subject matter it is found that the latter will be defeated unless it is permitted to interfere with the franchises of another corporation, the presumption is raised that such interference was contemplated by the Legislature” (p. 699).

In the instant case there was no permission granted to plaintiff to use the rails or roadbed of the defendant company. There is nothing in the situation of the locality which both railways are permitted to occupy to justify a permission by implication to use defendant’s roadbed and tracks, or to disturb its franchises.

The only unoccupied ground which could be designated as neutral was that on either side of defendant’s tracks. This neutral ground was accepted by plaintiff as the territory it wasto occupy. Tbe subsequent resolution of the Council simply declaring the space occupied by defendant as neutral ground was an absurdity, as the Council could not change the meaning of words, and, as said in plaintiff’s brief, make that neutral ground, which, in fact, was not. The testimony in the record shows that the space first allotted to plaintiff’s road is sufficient for its purpose; will not interfere with defendant’s franchise; and will not interrupt or disturb the use of the street or avenue.

There is not an authority anywhere that does not hold that the grant to occupy the tracks of a railroad company by another competing company by implication, the implication must be such that the grant would be defeated without the use of the tracks. Here the competing company has a large space to occupy without interfering with the defendant’s franchise.

What is the franchise granted to defendant? It is that it may construct a road through Carrollton avenue on unoccupied territory. There is not a word said about the use of defendant’s road bed, and the use of .defendant’s track does not spring from any necessary implication, as there is ample territory assigned to plaintiff to construct its road without interfering with defendant’s roadbed.

Judgment affirmed.

Dissenting Opinion.

Miller, J.

The plaintiff, with a franchise for a street railway extending through the neutral ground of Carrollton avenue, seeks to compel the defendant, the New Orleans & Carrollton Railroad Company, to permit the use of its tracks laid, it is alleged, on the roadbed granted to'plaintiff; the use to be jointly possessed by the two companies, and on suitable compensation to be paid by plaintiff. The defendant excepted that the petition showed no cause of action'; that plaintiff had no right to use defendant’s tracks; and that plaintiff’s purchase is void for failure of the Council to comply with the law in granting the purchase. The exceptions referred to the merits were renewed in the answer, with the additional averment that defendants, in possession of its tracks for years, had expended money in laying them, and plaintiff had no right on the tracks. From the verdict and judgment in defendant’s favor, plaintiff appeals.

The plaintiff, operating a street railway in this city, obtained by transfer the right to extend its tracks to the line of Jefferson parish, on designated streets, of which Broadway was one, but before the privilege was exercised, 'the city by ordinance of September 9, 1892, authorized the purchaser of the franchise to construct the road through the neutral ground of Carrollton avenue, from Second to Fourth street, thus substituting the avenue for the distance named in lieu of Broadway. The City Surveyor, under this change, gave the plaintiff lines for the construction of the road on that portion of the avenue adjoining the banquette on the lower side. Thereafter the Council by ordinance defined the neutral ground to be the central space of sixty-six feet lying between the strips of thirty feet wide on either side next to the banquette. Then the surveyor gave plaintiff lines to run on this neutral ground. This brought about the contention now before us, as plaintiff’s lines were over the defendant’s tracks.

The ordinance under which defendant laid its tracks preceded that of plaintiff, and assigned the upper side of the avenue. The upper side might well have been deemed the space of thirty feet next to the upper banquette. No question is raised on that point, plaintiff only claiming the common use of defendant’s tracks, laid as they are on the upper side of the neutral ground, designated as the space through which plaintiff’s tracks are to pass.

We have given attention to the argument and authorities cited by defendant to support the contention that our law affords no warrant for expropriation proceedings in this case. The right to use the streets for railway purposes can not be obtained by expropriation, but is derived from the municipal authorities clothed with the power to regulate the use of th.e public streets. City Charter, Acts 1882, No. 20, Sec. 8; Elliott on Street Railways, p. —; Brown vs. Duplessis, 14 An. 842. The plaintiff in this case asserts the right claimed to be conferred by the city ordinances. The taking or rather the joint use of defendant’s tracks this suit seeks to ■enforce is merely incidental to the ordinances under which plaintiff claims. There is, hence, in our opinion, no room for the ■discussion of the right of expropriation in the usual sense of that power; the plaintiff’s right, if it exists, being derived from the ordinances. The right of the city, after selling to one company a street franchise, of giving to another company the use of the tracks ■embraced in the first franchise, is, of course, restricted, but, within the appropriate limits, is conferred by the city charter. The provision is: The city shall have the power to require and compel all lines of railway, in any one street, to use one and the same track; and it announces the policy in the public interest that no street shall be unnecessarily obstructed with a number of tracks when one will suffice. If then the ordinances relied on authorize plaintiff to use the defendant’s tracks for the short distance of fourteen hundred and forty feet, thus obviating two lines of tracks on an important thoroughfare of this city, in our view the case presents the mere question of the exercise of police power, and calls for no examination of the scope of the right to expropriate.

The exception of no cause of action raises the question, whether the ordinances relied on by plaintiff confer the right to úse defendant’s tracks. It is true the ordinances do not refer to the tracks, 'but plaintiff’s contention is, the right to their use is given by necessary implication. The Council, in designating the neutral ground of Carrollton avenue as plaintiff’s roadbed, supposed that the words used carried an accepted significance, applied to an avenue with a well defined central strip. There was testimony that the strips of thirty feet, next to the banquette on either side, were ■deemed neutral ground by the people in the neighborhood. Such ■significance, we think, to whatever extent it may have existed, was purely local, not apt to be the sense of the Council or, indeed, of any ■one employing the words to designate a portion of an avenue. In their usual acceptance the neutral ground of a wide avenue would be deemed to refer to the central space bordered by trees, and not to the strips of thirty feet wide on each side next to the banquette. Without any other light than that afforded by the ordinance itself,, it seems to us it would be a most arbitrary construction to apply “neutral ground” to either strip and not to this central space. There-are other avenues of this city of which we take notice like that in Carrollton. It would hardly occur to any one to call the strips or-streets on either side of Canal or Esplanade streets neutral ground. If he used the terms, the reference would naturally be accepted as referring to the large space or middle ground, and on which it is pertinent to notice the city railways on those avenues are placed. In some of the earlier railroad ordinances the words “neutral ground” are used, and the centre and not the sides or streets were understood to be intended, and the roads located accordingly. See Ordinances City Railroad, etc.; Leovy Ordinances, pp. 437, 458, 466. As a question of construction required of us in this case, without other aids-than the ordinance, we should hold that neutral ground of Carroll-ton avenue referred to the central space of sixty-six feet. But we are not left to the original ordinance! Tbe Council by its subsequent ordinance defined neutral ground as this central space. If, as must be conceded, the Council had the power to give this right of way, there is no conceivable objection to the defining ordinance, if the roadbed was not stated with precision in the first. It is said the plaintiff at first received lines from the surveyor, assigning the lower strip of the avenue for the roadbed, and then began to construct the road. But both the plaintiff and the city abandoned that interpretation of the ordinance. If the plaintiff begun wrong, we do not appreciate it was bound to persist in the error. If the ordinance, whether original or as amended, gave to plaintiff the neutral ground for its roadbed, there was no impediment to the plaintiff availing; itself of its right. In our view, under the plaintiff’s ordinance, it, acquired the right to build its road over the central space of sixty-six feet of the avenue. That interpretation of the neutral ground would be natural under the original grant, and is exacted by the-plain terms of the amended ordinance to have effect the same as if part of the grant first conferred.

On the sixty-six feet through which the plaintiff is authorized to lay its tracks is a gravel road, twenty-five feet in width, which is. the thoroughfare for vehicles extending from Carrollton to the rear The road occupied part of the sixty-six feet when the ordinance was passed and for years before. On the lower side' of this road is a row of trees ten feet in width, next the road is a space of five feet left, we presume, for the safe passage of the defendant’s ears, the tracks ' of its cars occupying eighteen feet alongside the five feet space- and succeeding the eighteen-feet on the upper side is another row of trees of ten feet. The sixty-six feet is thus already taken up to-the extent of ñfty-eight feet. There is no room for the plaintiff’s tracks, unless to the exclusion of the gravel road, or over the defendant’s tracks. With the power of the city to compel the common-use of the tracks, and under the ordinance giving plainfiff part of the-space of sixty-six feet, the Oity Surveyor gave the plaintiff lines ■over defendant’s tracks, as the only method of executing the ordinances. The defendant resists this use of its tracks. If its contention, is successful, the plaintiff can have no tracks on the sixty-sixfeet, unless it can be maintained the ordinances take from the public the thoroughfare in use for years and established at great expense. Can, any such purpose be attributed to the ordinances; or in other words is that construction consistent with the tests that guide rational interpretation? The gravel thoroughfare within the sixty-six feet is not appropriately to be designated as neutral ground. We can nod suppose, in passing the ordinances giving the right of way through neutral ground, it was the intention to destroy a public road necessary to the public, and in actual use. In view of the fact that without encroaching on this road there is copious space for both companies, if they use the same tracks, the conclusion that was the purpose seems the only reasonable interpretation of ordinances of the-city, vested with the power to compel the common use of tracks by companies having franchises on the same street. We are fortified in our interpretation by the action of the city authorities, in exercising the police power of regulating the use of the streets. There-is, in our view, no basis on which we can substitute another construction compelling the laying of four tracks on an important avenue, when two will suffice, and a construction too that leads to-the unnecessary deprivation of a roadway in use by the public. We think the action of the Oity Surveyor was within the scope of the ordinances.

It is claimed that the ordinances of the plaintiff are not legal, because it is supposed they convey street franchises not sold at public auction, (Acts 1888, No. 135). The law requires such sale of a street line of railway. In this case the ordinances supply merely the means of connecting lines above and below the avenue by giving the use of the avenue for the short distance of one thousand four hundred feet. No such connection could be sold, and hence can not be deemed within the scope of 1he Act of 1888. Impressed as we rre with the duty of upholding this act of 1888, and waiving any expressions not called for in this case, we are of opinion that the controversy presents no infringement on the act.

When the city requires the use by two companies of the same tracks, there are the resulting obligations that the company holding the first franchise must be indemnified for the damage incident to yielding up its tracks; that the reconstructions for adapting the tracks to the common use be paid by the company holding the last franchise; that the cost of maintenance shall be borne equally, and that the reconstruction shall be made with the least inconvenience to the first company. Railroad vs. Railroad, 47 An. 314.

A decree in plaintiff’s favor, under the circumstances suggested, is, I think, the proper solution of the controversy. I therefore dissent from the opinion and decree.

Breaux, J., concurs in this dissent.  