Clapp v. City of Spokane

53 F. 515, 1892 U.S. App. LEXIS 2053

• Court: U.S. Circuit Court for the District of Washington
• Decided: October 29, 1892
• Status: Published

Opinions

HANFORD, District Judge.

This is a suit for an injunction to prevent the city of Spokane from interrupting the operation of an electric street railway, upon which the complainant holds a mortgage, by constructing a sewer in one of the streets in which the railway is located. The railway is double tracked, and occupies the middle part of the street, having a single line of poles set in the space between the tracks, supporting crossbeams from which the wires are suspended. It is owned and being operated by a domestic corporation to which the city gave a franchise authorizing the construction of said railway with double tracks in the middle of said street, with a single line of poles between the tracks, and the operation thereof by the system adopted. It is now proposed to put a sewer in the center of said street, in such manner as to necessitate the taking down of said poles, and the obstruction of the tracks so as to prevent the operation of the railway during the time to he consumed in its construction; and by having the sewer in the center of the street the railway will he perpetually subjected to annoyances, by the making of excavations for the purposes of connecting with and repairing the same. The bill of complaint avers that, by taking the center of the street for the sewer, the railway property will be damaged, and the value of complainant’s security impaired, which damage is wholly unnecessary; there being a space 43 feet wide in the street on the outside of each track. Upon the hearing of the demurrer to the bill, the defendants’ counsel has, by argument and authorities, established these, propositions: That a sewer in said street is essential to the public welfare, and the city has power to construct it; that the city has control of said street, and every part of it, and may, if necessary for the accomplishment of any public work which it is authorized to undertake, obstruct it, and suspend all travel therein; that the franchise for the railway is subordinate to the power of the city to control said street, and the city may even require (he owner of it to remove the railway at its own expense, if necessary for the purpose of putting a sewer in said street.

While the power of the city is ample, it is also limited. The validity of its ordinances must be tested by tbe rule that reason must control its conduct, and the courts are required to shoulder the burden of deciding what is reasonable, whenever individuals complain of unreasonableness in the provisions of city ordinances affecting them, (1 Dill. Mun. Corp. [3d Ed.] §§ 319-321;) and, in the exercise of all the powers of a municipal corporation, the bounds of necessity and reason must not he overstepped, to the injury of private rights. Avow, is it unreasonable and oppressive for the city, after having, by its ordinances, authorized the construction of this street railway, and designated the' particular part of the street to he occupied by it, and after the complainant, induced by its grant of the franchise, has invested his money in bonds of the railway corporation, secured by said mortgage, with ample room elsewhere in the street, to so locate a sewer as to cause the greatest damage to the railway? I think that it is, and that the proposed action of the city is therefore an unlawful exercise of its poner. There may he a sufficient reason for putting the sewer in the center of this street, which can be shown by the defendants when they answer the bill. But, as no necessity or reason appears from the statements contained in the bill, the demurrer cannot be sustained on this ground.

The bill avers that it is possible to construct a sewer in the center of the street without interfering with the railway. But, as the contrary is not alleged, I assume that it would he impracticable to do so, on account of the additional cost; and I have therefore treated this as an immaterial allegation. I hold that the city is not required to incur any considerable additional expense by reason of having granted a free right to the use of (be street for this railway.

The amount of the damage to the”plaintiff by reason of the impairment of the value of his security, to result from the threatened injury to the railway, is alleged to exceed the sum of $2,000. Therefore, there is no lack of a sufficient showing as to amount in controversy to entitle the plaintiff to sue in this court.

The authorities cited by defendants’ counsel prove that a mere creditor of a corporation has no sta uding in court to litigate concerning the property of the corpora tion. But a mortgage upon property for the security of a debt is the property of the mortgagee, and as much entitled to protection from unlawful injury as any other species of property. Morgan v. Gilbert, 2 Fed. Rep. 835-838, and authorities therein cited.

The last objection urged is that a suit in equity for the causes alleged cannot he maintained, for the reason that the complainant has a plain, adequate, and complete remedy at law. That is to say, whatever injury may be done to him can he fully compensated in damages. In my opinion, this objection is well founded. True, the laws of this state, as construed and declared by its supreme court, do not authorize a municipal government to take or damage private property without the owner’s consent, and do entitle a property owner to an injunction to prevent injury to his property by city officers and agents. But, by express enactment of congress, the national courts are forbidden to entertain a suit in equity in any case where a plain, adequate, and complete remedy may be had at law; and the equity jurisdiction of these courts cannot be extended by state laws. Rev. St. U. S. § 723; Whitehead v. Shattuck, 138 U. S. 146, 11 Sup. Ct. Rep. 276. On this ground, the demurrer will be sustained