US SUPREME COURT DECISIONS

A general law, in force when a street railroad franchise was granted by a city, provided that in no case must two railroad corporations occupy and use the same street for more than five blocks, and the franchise ordinance, referring to the law, expressed a like limitation on the power of the board of supervisors, as to the streets covered by the franchise. Held that the limitation was not intended to affect the city when constructing a street railroad of its own under a later amendment of the law and of the state constitution. P. 249 U. S. 519.

Held further that the grantee took the risk of this judicial interpretation of its franchise and of the city's railroad's being run in the same streets on either side of its own, and that any damage inevitably resulting was not a taking of its property requiring resort to eminent domain. P. 249 U. S. 520. chanrobles.com-red

Page 249 U. S. 518

Semble that the damage referred to in the California Constitution of 1879, Art. I, § 14, requiring compensation before private property is taken or damaged for public use, is such as results from conduct that would be tortious unless under eminent domain proceedings or some law authorizing it on condition that damages be paid. P. 249 U. S. 521.

The plaintiff having failed to establish its right to enjoin the construction of the city's railroad alongside its own, as a violation of franchise rights and taking of property, and the road having been built pendente lite, and the right to recover for any damage due to track-crossings, manner of operation, etc., being doubtful, nonequitable in character, and dependent on the taking of new evidence -- held that a decree dismissing the bill should be affirmed, without prejudice to further proceedings to recover any damage to which plaintiff might be entitled. Id.

The charter provision requiring the City of San Francisco to consider offers for the sale of existing public utilities before constructing new ones affords no ground for a street railroad company to oppose construction of a municipal road alongside its track when such company, in common with others, had received from the board of supervisors a general solicitation for such offers as to any existing street railway. P. 249 U. S. 522.

239 F.9d 7 affirmed.

The case is stated in the opinion.