petition the wrongful acts alleged are of a temporary nature, and subject to be discontinued either voluntarily or by suit, and the only damages alleged were the depreciation in the value of plaintiffs' property. To state the case somewhat differently, in those parts of the petition the plaintiff sought to recover for an alleged depreciation in the value of their property caused by the acts of the defendant, and failed to allege facts which would authorize such a recovery. We are of opinion that the demurrers were properly sustained. We would not be understood as holding that the facts alleged in the counts in the petition we had had under consideration show grounds for the recovery of any damages, for we think the allegations in the second and third would not have authorized any recovery whatever. The judgment is affirmed.

FINCH

V.

RIVERSIDE & ARLINGTON R. Co.

(87 California, 597.)

Street Railway-Right of Abutting Owner to Compensation.-The dedication of a street to public use authorizes its use for the tracks of a street railway company, and the owner of the fee is not entitled to compensation therefor.

Location of Street Railway Tracks-Middle of the Street.-A statute requiring street railway tracks to be placed as "nearly as possible in the middle of the street,” means that the tracks should be placed “as nearly as practicable" in the middle. The location must be controlled in some degree by the circumstances of the particular case.

Same Practicality of Placing Tracks in Middle of Street-Evidence. The evidence in the case held insufficient to support a finding that it was not "practicable" to locate the tracks of a street railway company in the middie of the street.

Franchise of Street Railway Company-Member of City Board a Stock. holder. Where a city board of trustees grants a street railway franchise for the benefit of a corporation to be organized by a number of subscribers, of whom a city trustee, who was on a committee which reported favorable as to the granting of such franchise, was one, and such franchise was subsequently transferred to the corporation, the franchise is void.

COMMISSIONERS' decision. Department 2. Appeal from San Bernardino County.

H. C. Rolfe, for appellant.

W. J. McIntyre, for respondent.

HAYNE, C.-This was an action of ejectment brought by

the owner of the fee of one-half of a street in the city of Riverside called "Cypress Avenue," against a Case stated. street car company, which was alleged to be using

such half of the street in an unauthorized and unlawful manner. The trial court gave judgment for the defendant, and the plaintiff appeals.

There is no dispute about the plaintiff's ownership of the fee of half of the street, nor about the existence of the street, and the consequent right of the public to use it as a highway. The question litigated is whether the defendant's use of it was unauthorized and unlawful. In this regard several points are made.·

Compensa

ter.

Location of tracks.

1. It is contended that the defendant could not use the street for the purposes of its track without first making compensation to the plaintiff, and the case of Weyl v. Sonoma Val. R. Co., 69 Cal. 203, is cited. But tion to abut- that case was not in relation to a.street railway, but to an ordinary railroad whose route took it through a street. And we think there is a difference between such a case and the present. The dedication of a street to public use authorizes any ordinary use for street purposes; and the use of a street in a city or town for the tracks of a street car company is of this class, and is therefore authorized. 2. It is argued that the track was not located as required by law. The provision of statute in relation to the subject is that the city or town authorities, in granting the right of way to street railroad corporations, in addition to the restrictions which they are authorized. to impose, must require a strict compliance with the following conditions: * * * First, to construct their track on those portions of the street designated in the ordinance granting the right, which must be as nearly as possible in the middle of the street.". Civil Code, § 498. The order granting the franchise did not prescribe the precise part of the street upon which the track was to be located. It was merely that the franchise be granted to the applicants "according to their application;" and, while the application named the streets through which the road was to run, it did not refer to any particular portion of any street. There was, however, a general ordinance, applicable to all street car companies, providing that "the track shall be laid as near the center of the street or streets along the route of the railway as practicable." It will be observed that the effect of this was that the board did not exercise its own judgment as to the portion of the street to be occupied by the track, but left it to the company to construct their track as near the middle of the street" as practicable." The company evidently did not consider it

practicable to place the track in the middle of the street, and accordingly placed it on the side next the plaintiff's lot. The precise location is not shown by the record; but the court finds that "it was not practicable to locate the track in the middle of Cypress avenue." The court further finds that the franchise provided that the track was to be laid "along the eastern side of Cypress avenue," (which, as above shown, it did not provide ;) and that "the location of the defendant's track was in conformity with the requirements of said franchise." The plaintiff's position is, in the first place, that the words "as nearly as possible" do not mean "as nearly as practicable," as held by the trial court; and that, even if they do, the finding that it was not practicable to locate the track in the middle of the street is not sustained by the evidence. In relation to the first question we think that the statute means "as nearly as practicable." As a matter of course, it is always physically possible to place a track in the middle of a street. It may not be legally possible. For example, there may already be a track there under a franchise which it is beyond the power of the board to revoke. But even if a track were placed in the middle of the street, under a revocable license, we think that the board would have power to authorize the laying of another track so as not to interfere with the first. So if, as is sometimes the case in rural towns, a row of trees were in the middle of the street, the track could be placed on one side. And we are not prepared to say that the conditions of traffic might not be such as to require a similar location. The use of the words " as nearly," in connection with "as possible," shows that it was foreseen that a location in the middle of the street could not always be made; and we think that, from the nature of the case, the meaning must be that the location must be controlled in some degree by the circumstances of the particular case.

But we do not think that the evidence in the case before us shows any reason why the track could not be located in the middle of the street. Only two witnesses testified on the subject. One of them said, in substance, that it was "impractical" to place such a track in the middle of such a narrow street (it was 40 feet wide), because it would interfere with traffic. To use his own language: "It is impractical to put it in the center of such a narrow street, because it interferes a little bit with the travel, just about the same as when Mr. Finch goes across to his lot 210. It interferes with the travel in passing teams. If the travel is very great, it interferes materially. It depends on how much travel there is." But the witness did not state how much travel there was. The other witness said that a track in the middle of a street

would interfere with traffic "very extensively." But he went on to say: "Putting a street railway in such a street would interfere with the use of the street for other travel wherever you put it. But I should deem it advisable not to put any street railway in the center of such a narrow street, for the reason that it will obstruct the travel to such extent that teams, for instance, cannot pass each other on either side of the track without crossing the track. There would be no room on each side for teams to pass. *** Of course it is practicable." The effect of this testimony is merely that in the opinion of the witnesses the requirement of the law is wrong, and that it is more convenient to the traveling public to have the track on the side of the street. But the law certainly means more than this. It is an injustice to the property owners on one side of the street to have the obstruction placed close to their doors. And for this, among other reasons, the law requires that it must be placed as near the middle of the street as prac ticable, and enjoins a "strict compliance" with the require

ment.

Granting ef franchiseAction of city trustee.

3. It is contended that the franchise is void because a subscriber to the stock of the company was a member of the board of city trustees, and took an active part in the proceedings in relation to the franchise; and we think that this position must be sustained. It appears that when the application for the franchise was made a number of protests were put in, and the matter was referred to a committee of two, of which E. W. Holmes was one. This committee made a report in writing, recommending that the application be granted. The report was adopted, and the franchise granted at the next meeting. Several months prior to this an agreement to subscribe to the capital stock of a street car company to be formed on lines similar to those of the defendant was gotten up, and by it E. W. Holmes subscribed for 200 shares of stock. A committee of subscribers was appointed to apply for a franchise. The personnel of this committee was subsequently changed to some extent. The application was made by the committee, and was granted, on the favorable report of the committee of two, of which Holmes was a member, as above stated, Subsequently the committee made a deed of the franchise to the company. It is true that there was no testimony to show that E. W. Holmes, the city trustee, was the same person as E. W. Holmes, the subscriber. But, in the absence of evi dence to the contrary, identity of person will be presumed from identity of name. It is also true that no corporation was formed at the time of the subscription, and that the fran chise was granted to several individuals, and not to a com

pany. But, as above shown, the individuals constituted a committee of the subscribers appointed for the purpose of applying for the franchise, and after they obtained it they transferred it to the company formed in pursuance of the subscrip. tion. We think that it sufficiently appears that the franchise was granted for the benefit of a corporation to be organized by a number of subscribers, of whom the city trustee was one, and was subsequently transferred to the corporation; and, taking this to be the fact, the case falls within the principle of San Diego v. San Diego & L. A. R. Co., 44 Cal. 106. The trustee was one of a committee of two to whom the application was referred, and the favorable report of this committee, which was adopted by the board, must have influenced its action. In our opinion this vitiated the franchise. For the above reasons we think that the defendant was a mere intruder upon the street, and under the case of Weyl v. Sonoma. Val. R. Co., above cited, the plaintiff can maintain ejectment against it. We therefore advise that the order appealed from be reversed, and the cause remanded for a new trial.

We concur:-VANCLIEF, C.: FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the order appealed from is reversed, and the cause remanded for a new trial.

What Grant of Right to Lay Tracks in Street Carries With it-Use of Street as Depot for Cars. In Owensborough & N. R. Co. v. Sutton, (Ky. Ct. of App., June 25, 1890), 13 S. W. Rep. 1086, it was held that the grant to a railroad company of authority to lay its tracks and switches in a public street, does not carry the right to use such street as a place for making up trains, nor as a depot for cars, nor for receiving and discharging freight. The court said: The use of a public way may be granted to a railroad company for passage through a city or town, or by switches from its main track to its depot, or receptacle for passengers and freight, because it is in many cases necessary, and may be done without materially injuring the street as a public way. But even a grant for that limited purpose cannot be made, or the right under it exercised, except upon condition of the company being liable for injury done thereby to owners of abutting property; for legislative power does not exist to exempt either an individual or corporation from obligation to so use his or its own as not to hurt others. There is no reason nor necessity in this, or any other case like it, for a railroad company to use a public street as a place for making up its trains, or as a depot for standing cars, or for receiving or discharging freight; for such use necessarily defeats the purpose for which streets are dedicated to the public, prevents reasonable enjoyment by owners of abutting property, and consequently municipal legislature is without power to grant the right. It seems to us appellant does not have the legal right to use Lewis street in the manner complained of by appellee, and such use of it was properly enjoined by the lower court." See generally, St. Louis, A. & T. H. R. Co. v. City of Belleville (Ill.), 32 Am. & Eng. R. Cas. 283.

Use of Street by Company in Violation of Contract With Abutting Owners -Right to Injunction.-In Appeal of Kemble, (Pennsylvania Sup. Ct., Feb.