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the street lying between the rails; they are not required to keep in repair that part of the street lying between a double track. (Robbins v. R. R. Co., 32 Cal. 472.)
Middle of Street-Single or Double Track.-The tracks of a street railroad should be laid as nearly as practicable in the middle of the street. If the franchise does not indicate the precise position of the track, and it is not nearly as practical to the middle of the street the track is an unauthorized obstruction, and the owner of the fee may maintain ejectment against the company. (Finch v. R. & A. Ry. Co., 87 Cal. 597, 25 Pac. 765.)
An ordinance granting the right of way to a railroad company over one of its streets, and requiring it to construct its track or tracks as near the center of the street as may be, is to be construed with the statute under which the railroad company is incorporated, as providing for such use of the street, and for such single or double track as is authorized by the statute. In the absence of express limitation the city must be deemed to have granted an option to the railroad company to construct, either a doublo or single track. (Workman v. S. P. R. R. Co., 129 Cal. 536, 62 Pac. 185, 316.)
TWO CORPORATIONS MAY USE THE SAME TRACK.
Sec. 499, C. C. Two lines of street railway, operated under different managements, may be permitted to use the same street, each paying an equal portion for the construction of the tracks and appurtenances used by said railways jointly; but in no case must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively. En. March 21, 1872. Amd. 1891, 13.
For basis of section, see sec. 497, C. C., supra. The original section is as follows: “Two corporations may be permitted to use the same street, each paying an equal portion for the construction of the track; but in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks."
People v. Rich, 54 Cal. 74; Omnibus R. R. Co. v. Baldwin, 57 Cal, 168, 170, 177; Illinois T. & S. Bank v. Pac. Ry. Co., 115 Cal. 297, 47 Pac. 60; Hook v. Los Angeles Ry. Co., 129 Cal. 182, 61 Pac. 912; Los Angeles Traction Co. v. Wilshire, 135 Cal. 659, 67 Pac. Annotation,
Construction of Section. This section differs materially from its derivation (Act 1870, sec. 1; Stats. 1869-70, p. 481), which was construed in 0. R. R. Co. v. Q. B. etc. Co., 45 Cal. 378, 13 Am. Rep. 181. This section forbids the occupation and use of the same street by two corporations for a distance of more than five blocks, while the old section merely forbids the use of the same track by two companies "for more than five blocks in all.” (People v. Rich, 54 Cal. 74.)
For a judicial construction of the first section of the act of 1870 (Stats. 1869-70, p. 481), from which the present section was derived, see 0. R. R. Co. v. 0. B. & F. V. R. R., 45 Cal. 365, 13 Am. Rep. 181.
The first clause of this tion clearly means that a right to use the same street cannot be granted to more than two corporations in any case, and if granted to two, it must be upon the condition that both use the same track, and that each pay an equal portion of the cost of constructing it. The second clause contains nothing which conflicts with the construction of the first; but simply adds another limitation, viz., that “in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks.” If the provision of the first clause had been that two railroads might use the same track, each paying an equal portion for the construction of it, there might be some difficulty in determining what it meant. But when it permits them to use the same street on that condition, and on that condition only, the limitation is not at all qualified in that respect by the subsequent clause, which, as before remarked, simply adds a further limitation, which in no sense can be regarded as inconsistent with that contained in the preceding clause. (Omnibus R. R. v. Baldwin, 57 Cal. 168.)
This section is a limitation upon the authority conferred upon incorporated cities by section 497 of this code. (Omnibus R. R. v. Baldwin, 57 Cal. 177, McKinstry, J.)
Compensation. This section is controlling as to the amount of compensation to be given in case of the joint use of the same track, and must prevail, in reference to street railroads, over the general provisions of the code respecting the assessment of compensation and damages in case of the intersection of one road by another. (Pac. Ry. Co. v. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 27 Pac. 768.)
When applied prospectively to a case when no track has been .constructed, the section leaves it to the lines to agree as to cost, which is to be equally borne; but it may also extend to a case where one line has already constructed and used its track, and another line seeks to use it under the section, in which case the latter is required to pay only one-half of its reasonable value at the time of permission to use it. (Hook v. Los Angeles Ry. Co., 129 Cal. 180, 61 Pac. 912.)
Ordinance in Conflict Void.- An ordinance which permits two railroad corporations to occupy the same street or track for more than five blocks is void. (People v. Rich, 54 Cal. 74. To same effect: Cmnibus R. R. v. Baldwin, 57 Cal. 169. Note citation: 25 Am. St. Rep. 478.)
Condition of the Grant.—The grant of a street railroad franchise is taken subject to the provisions of this section, and having been accepted, the company cannot be heard to complain that the mayor and common council have authorized another company to use its tracks upon the conditions named in the statute. (Pac. Ry. Co. 1. Wade, 91 Cal. 454. See notes: 25 Am. St. Rep. 478; 34 Am. St. Rep. 684; 39 Am. St. Rep. 912; 57 Am. St. Rep. 735; 53 Am. St. Бер. 678.)
The condition that the railway shall be commenced and completed within a specified time is complied with, so far as the blocks so used, by the purchase and use of the right to use the tracks of another street railway for a distance of five blocks. (Los Angeles etc. Co. v. Wilshire, 135 Cal. 652.)
Sec. 500, C. C. Any proposed railroad track may be permitted to cross any track already constructed, the crossing being made as provided in chapter II, title III, of this part. In laying down the track and preparing therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working days. En. March 21, 1872.
Crossing other railroads: See ante, sec. 465, C. C., et seq.
PATES OF FARE, SPEED, ETC.
Sec. 501, C. C. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each passenger per trip of any distance in one direction, either going or coming, along any part of the whole length of the road or its connections. The cars must be of the most approved construction for the comfort and convenience of passengers, and provided with brakes to stop the same, when required. A violation of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. En. March 21, 1872. Amd. 1903, 172.
Rates of fare for railroad corporations: See sec. 489, C. C.
Act limiting and fixing rates of fares: See post, Statutes at Large, title “Railroads."
Act permitting letter carriers to ride free: See post, Statutes at Large, title “Railroads."
Section 5 of the street railroad act of 1879, page 482, is the tasis of this section.
The original section made no provision for rate of fare in municipalities of the first class, and restricted the rate of speed to eight miles an hour.
Driscoll v. Cable Railway Co., 97 Cal. 563, 33 Am. St. Rep. 203, 32 Pac. 591; Schneider v. Market St. Ry. Co., 134 Cal. 485, 66 Pac. 734.
Rate of Speed-Negligence.-Held, prior to amendment, that the fact that a car was running in excess of the statutory limit of speed, vas evidence of negligence. (Driscoll v. Cable Ry. Co., 97 Cal. 563, 33 Am. St. Rep. 203, 32 Pac. 591; Schneider v. Market St. Ry. Co., 134 Cal. 485, 66 Pac. 734.)
TIME ALLOWED FOR COMMENCING AND COMPLETING WORK
- PENALTY-EXTENSION OF TIME. Sec. 502, C. C. Work to construct the railroad must be comienced in good faith within not more than one year from the date of the taking effect of the ordinance granting the right of way, and said work must be completed within not more than three years after the taking effect of such ordinance; provided, that the governing body of such municipal corporation at the time of granting said right of way shall have the power to fix the time for either the commencing or completion, or both, of said work; not, however, to a time less than six months for commencing, and not less than eighteen months for completing the same.
A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way, and also of the franchise, unless the uncompleted portion is abandoned by the person or cor
poration to whom said right of way is granted, with the consent of the authorities granting the right of way, such abandonment and consent to be in writing. The authority granting the right of way shall have the power to grant an extension of time for the completion of said work, if it appear that the work has been commenced within the time fixed, and prosecuted in good faith; but no extension of time shall be granted for the commencement of said work, and shall not be granted for more than one year for the completion of the same. All extensions of time shall be in writing, and made a matter of record in the municipality. Provided further, that this act shall not in any way affect any franchise or right of way granted before its passage. En. March 21, 1872. Amd. 1895, 17.
Forfeiture, for failure to commence work, of railroad corporations: See sec, 468, C. C.; generally, see sec. 358, C. C.
Section 8 of the street railroad act of 1870, page 483, is the basis of this section. The original section is as follows: "Sec. 502. Work to construct the railroad must be commenced within one year from the date of the ordinance granting the right of way and the filing. of articles of incorporation, and the same must be completed within three years thereafter. A failure to comply with these provisions works a forfeiture of the right of way as well as of the franchise, unless the uncompleted portion is abandoned by the corporation, with the consent of the authorities granting the right of way-such abandonment and consent to be in writing.”
Omnibus R. R. Co. v. Baldwin, 57 Cal. 178, in dissenting opinion of Ross, J.; People ex rel. v. Los Angeles etc. Co., 91 Cal. 341, 27 Pac. 673; City of San Pedro v. Railroad Co., 101 Cal. 337, 35 Pac. 993, 49 Pac. 736; People v. Sutter St. Ry. Co., 117 Cal. 611, 612, 616.
Commencement and Completion of Work.-The period of three years within which a street railway must be completed begins from the date of the commencement of the work, and not from the date of the ordinance granting the right of way. (People v. Los Angeles etc. Co., 91 Cal. 338, 27 Pac. 763.)
The municipality has no power to extend the time within which the track must be completed. That is fixed by this section, and a different period cannot be fixed in the grant of the franchise. (People v. Sutter St. Ry. Co., 117 Cal. 611, 49 Pac. 736.)