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in a case in New Jersey it is declared that, where by statute the filing of consents of a certain proportion of the abutting owners must be filed before permission is granted by a municipality for the construction of a street railway, when these consents have been filed with the proper authorities in connection with an application by a street railway company, the right of such company to their operation for the purpose of the application in accordance with the objects of the statute becomes effective as to the lands included therein, and such consents cannot be withdrawn or affected by a subsequent alienation of the land included.2 In such a case, however, it has been determined that when, upon the filing of the necessary consents of the abutting owners, the city council or other governing body has once regularly acted thereon by the passage and approval of a valid ordinance or resolution giving or refusing such municipal consent, the council or other governing body becomes functus officio, so far as the pending application is concerned, and the consents of the abutting owners thus acted upon can

66

2 Paterson & S. L. Traction Co. v. Wostbrock (N. J. Ch. 1903), 56 Atl. 698, citing Currie v. Atlantic City, wherein it is said: There can be no effective withdrawal of a consent after the jurisdiction has vested in the municipal council, which is when the consents filed with the city clerk represent a majority of all the property affected. The same is true with respect to the conveyance of property after enough consents have been filed. It is almost essential to the practical administration of this law that this should be so; otherwise the jurisdiction of the city might be nullified by a single individual at the very instant that final action was being taken, which surely was not what was in the legislative mind at the time of the adoption of this scheme," per Garrison. J. Though this case was reversed in

66 N. J. L. 671, 48 Atl. 615, this particular point was not considered by the court in its review of the decision of the Supreme Court and in Paterson & S. L. Traction Co. v. Wostbrock (N. J. Ch. 1903), 56 Atl. 698, it is said of these two decisions: "The decision upon a writ of error in this case leaves the question of the right of such withdrawal open for future decision by the Court of Errors, but the opinion of the Supreme Court that no withdrawal of consent could be made after a sufficient number had been filed to give the council jurisdiction was not expressly questioned or doubted, and for the purposes of this application in equity, to assist in the protection of a legal right, the decision of the Supreme Court must be taken as settling the question of the present status of the legal right."

not be made the basis of further municipal action upon a second application.3

§ 373c. Construction of street railroad on one side of street Right of owner on opposite side.- Where a street railway company has obtained the consent of the owners of land upon one side of a street to the construction of an electric street railroad upon that side of the street, wholly inside of the center line of the street, the construction of such railway will not be enjoined at the suit of an owner upon the opposite side of the street who owns the fee to the center thereof and whose property is in no way taken or encroached upon.*

§ 373d. Ordinance requiring consent of abutting owners.Effect of subsequent contract with municipality.— Though it may be provided by ordinance that an electrical company shall not erect its poles in the streets of a city or town without first obtaining the consent of the owner in front of whose property such poles are to be erected, the company may be relieved from the prohibition of the ordinance by a subsequent contract between it and the city by which the company is required to erect and maintain at such places, within the public streets of the town, as may be directed by a lighting committee a certain number of lamps and to erect and furnish the necessary poles therefor and in pursuance of which contract the parties to it agree upon the location of the lamps. In such a case the erection of a pole without the consent of the abutting owner does not render the company liable for a violation of the ordinance.5

§ 374. Renewal of charter-Street railway- Consent of abutting owners not necessary.— Where a street railway obtains a franchise from the local authorities to construct and maintain its line for a certain number of years, and also obtains the necessary consents of abutting owners, it is not necessary, upon

3 Paterson & S. L. Traction Co. v. Wostbrock (N. J. 1903), 56 Atl. 698; Currie v. Atlantic City, 66 N. J. L. 671, 50 Atl. 504, revg. 66 N. J. L. 140, 48 Atl. 615.

4 North Pennsylvania R. Co. v.

Inland Traction Co., 205 Pa. St. 579, 55 Atl. 774. See § 343a, herein.

5 Montclair Light & Power Co. v. Montclair, 67 N. J. L. 151, 50 Atl 350.

the expiration of the grant, to again obtain the consents of the abutting owners, in order to render a renewal thereof by the local authorities effective, where the legislature has provided that renewal of such grants may be made by the local authorities upon such conditions as they may consider conducive to the public interests."

§ 375. Use of tracks of another company. A street railway company may use the tracks of another company where, at the time of the grant to the first street railway, the right is reserved to the municipality, either by reason of provisions in the city charter, or by reservation of power in the grant to such company to confer such right upon a later company, or where the later company, being given the power of eminent domain, may, in the exercise of such power, condemn the tracks of the company having prior occupancy of the street. So a grant to a street railway company of the right to construct its line in the streets of a city, which contains a condition, providing for common trackage, for a connecting company, together with a subsequent grant to another company to construct its line to the head of the street, where the tracks of the earlier company are, and over which the common trackage is provided for, is held to sufficiently show municipal consent for common trackage in an action brought to restrain interference by the earlier company with the right of the later company to use such tracks. A street railway acquiring such right may operate its cars by a different motive power than the one in use on such track.9 But it must so use the tracks as not to interfere with the right of the company owning such tracks to properly

8

Pelton v. East Cleveland R. Co. (Cuyahoga Co., Ohio, Com. Pl.), 22 Week. Law. Bull. 67.

7 Canal & Claiborne R. Co. v. Crescent City R. Co., 44 La. Ann. 485, 10 So. 888, 4 Am. Elec. Cas. 1; Crescent City R. Co. v. New Orleans, etc., R. Co., 48 La. Ann. 856, 19 So. 868; North Baltimore Pass. Ry. Co. v. North Ave. Ry. Co., 75 Md. 233, 4 Am. Elec. Cas. 1, 23 Atl. 466; Sanfleet v. Toledo, 10 Ohio C. C. 460; Toledo Elec. St.

Ry. Co. v. Toledo Consol. St. Ry.
Co., 26 Week. Law Bull. 172.

8 Staten Island Midland R. Co. v. Staten Island Elec. R. Co., 34 App. Div. (N. Y.) 181, 54 N. Y. Supp. 598.

9 Canal & Claiborne R. Co. v. Crescent City R. Co., 44 La. Ann. 485, 4 Am. Elec. Cas. 1, 10 So. 888, North Baltimore Pass. Ry. Co. v. North Ave. Ry. Co., 75 Md. 233, 23 Atl. 466, 4 Am. Elec. Cas. 1,

operate its road. 10 A street railway cannot, however, acquire such use, except upon making compensation to the owners.11 City charters frequently provide that any street railroad shall have the right to run its cars over the tracks of any other railroad company, upon the payment of just compensation for the use thereof, and under such rules and regulations as may be prescribed by ordinance. So where a charter of a city contained a provision such as the above, it was held that just compensation would be the payment annually of one-half of the repairs, of the cost of renewing tracks, of keeping the tracks free from snow and ice, and of the taxes; also the payment of an amount annually equal to interest at 6 per cent. on onehalf the value of the portion of the line the company sought to appropriate, including the conduit underneath the tracks, although the cost of the construction of the conduit was threefourths that of the cost of constructing the road, and it was not proposed to use such conduit.12 Under the Ohio statute a street railway company may exercise the power of eminent domain to obtain the use of tracks already laid, but under this power it is limited in its right to the appropriation for its use to not more than one-eighth of the length of its own line. In seeking to obtain the benefit of this statute by appropriat ing to its use a portion of another company's tracks the peti

10 Canal & Claiborne R. Co. v. Crescent City R. Co., 44 La. Ann. 485, 10 So. 888, 4 Am. Elec. Cas. 19; Toledo Elec. St. Ry. Co. v. Toledo Consol. St. Ry. Co., 26 Week. Law Bull. 172.

11 Canal & Claiborne R. Co. v. Crescent City R. Co., 44 La. Ann. 485, 10 So. 888, 4 Am. Elec. Cas. 13; North Baltimore Pass. Ry. Co. v. North Ave. Ry. Co., 75 Md. 233, 4 Am. Elec. Cas. 1, 23 Atl. 466; Grand Ave. Ry. Co. v. People's Ry. Co., 132 Mo. 34, 33 S. W. 472, 6 Am. Elec. Cas. 99.

12 Grand Ave. Ry. Co. v. People's Ry. Co., 132 Mo. 34, 33 S. W. 472, 6 Am. Elec. Cas. 99. The conduit

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is an integral part of the roadway, as constructed and used by defend

ant, and there would be no justice
in allowing plaintiff to
use the
tracks and thereby deprive the de-
fendant of the use of the conduit
to any extent without making com-
pensation therefor.
There

was no compulsion on the part of
plaintiff to occupy defendant's
tracks; and the fact that the su
perstructure was more costly, and
some parts of it unnecessary to the
operation of plaintiff's cars, affords
no just reason why it should not
compensate defendant, not only for
that which it does use, but also
that of which it deprives defendant
of the use." per Burgess, J.

13 Toledo Consol. St. R. Co. v. Toledo Elec. St. R. Co., 12 Ohio C. C. 367, 1 Ohio Cir. Dec. 643.

tion need only show substantially that the company has constructed eight times the length of track it seeks to appropriate, but it need not state the length of time it intends to use such portion.14 Under the New York Laws 15 it was provided that where any street railway company desired to use the tracks of another company to connect main portions of its line to be operated as an independent railroad, it might acquire such right. by condemnation proceedings. In Colonial City Traction Company v. Kingston City Railroad Company, 16 the company owning the tracks was unwilling to give its consent to their use by another company. An action was brought to condemn a right of way over such tracks, and it was held that the consent of abutting owners was necessary in order to acquire such right.

§ 376. Use of another company's tracks - Contract for.A statute providing that "any railroad corporation " may contract with another railroad corporation for the use of each other's roads, has been construed as applicable to street railway companies. 17 Though the Constitution of the State may provide that no street railway company shall be authorized by law to construct and operate its road, unless consent of the abutting owners shall have been first obtained, such provision will not. be construed as rendering consent necessary, where the right to use another company's tracks is obtained by contract between the two companies, such power of contract being conferred by statute.18 In a case which arose in New York,

14 Toledo Consol. St. R. Co. v. Toleo Elec. St. R. Co., 12 Ohio C. C. 367; 1 Ohio Cir. Dec. 643.

15 102 of Railroad Law, amd. by Laws of 1894, c. 693.

16 153 N. Y. 493, denying rehear ing of case in 153 N. Y. 540, 47 N. E. 810, affg. 15 App. Div. 195, 44 N. Y. Supp. 732.

17 Roddy v. Brooklyn Heights R. Co., 32 (N. Y.) App. Div. 311, 52 N. Y. Supp. 1025; Ingersoll v. Nassau Elec. R. Co., 157 N. Y. 453, 52 N. E. 545, 43 L. R. A. 236, affg. 89 Hun (N. Y.), 213, 34 N. Y. Supp. 1044, 69 N. Y. St. R. 16;

19

Kung v. Brooklyn H. R. Co. (N. Y. Sup. Ct., 1899), 25 Misc. (N. Y.) 334, 54 N. Y. Supp. 187.

Such a contract is not a lease. Chapman v. Syracuse R. T. R. Co. (N. Y. Sup. Ct., 1899), 25 Misc. (N. Y.) 626, 56 N. Y. Supp. 250.

18 Ingersoll v. Nassau Elec. R. Co., 157 N. Y. 453, 52 N. E. 545, 43 L. R. A. 236, affg. 89 Hun (N. Y.), 213, 34 N. Y. Supp. 1044, 69 N. Y. St. R. 16, Vann, J., dissenting; Roddy V. Brooklyn Heights R. Co., 23 Misc. (N. Y.) 473, 52 N. Y. Supp. 885. 19 Ingersoll v. Nassau Elec. R.

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