Muskegon, Grand Rapids & Indiana Railroad v. City of Muskegon Heights , 194 Mich. 643 ( 1917 )

Ostrander, J.

(after stating- the facts). 1. A clear, unequivocal admission, at the hearing below or in this court, that the plaintiff has, by virtue of the consent given in the ordinance of June, 1910, and by what it has done pursuant thereto, rights and privileges in the streets of the city, as they are occupied by it, to the point on Manahan avenue west of Sixth street, would require that the plaintiff’s bill be retained, instead of being dismissed, and that plaintiff have a part of the relief for which it asked. As it is, the decree continues in force the injunction granted to plaintiff, in effect protecting its rights in the streets to the extent that it occupies them — that is, to a point west of'Sixth street. We must, I think, construe the decree and statements of counsel as admitting that plaintiff was entitled to relief against declarations and threatened action involving its rights in the streets to a point ton Manahan avenue west of Sixth street. In this view, the bill should be retained and a decree in its favor entered, not negatively, but positively, adjudging that the action of the common council was too broad in its scope and purpose, affirming its rights under the ordinance in so far as it has occupied the streets, and enjoining any action or proceeding to disturb those rights.

2. As to any relief further than I have just indicated, it was, I think, properly refused. It is apparent from the record that the plaintiff was not prevented by the injunctions from securing a crossing of the Pere Marquette tracks and so from proceeding to occupy Manahan avenue east of Sixth street. The injunctions interfered with the effort to make a crossing in opposition to the wishes and rights of the Pere Marquette Railroad Company. Plaintiff has made no effort to secure the right to cross the uncrossed tracks of the Pere Marquette Railroad Company. It is patent that, unless and until it does, the injunction now in force will be continued. If vis major is, as it is contended by appellant it is, a defense in such a case as this, an excuse for acts or omissions creating or causing a forfeiture, it is a defense to be so made out as to leave no reasonable doubt of innocence. Brig Struggle v. United States, 9 Cranch, 71. See, also, 19 Cyc. p. 1360. Nearly five years elapsed the granting of the original consent of the city to occupy the streets. Reasonable diligence would have discovered within a reasonable time whether an amicable arrangement could be made insuring the crossing of the Pere Marquette tracks. In default of such an arrangement, the course necessary to be pursued was not in doubt. The consent of the city to use the street has been withdrawn, and there are no equitable reasons for holding that the action of the city should be set aside.

3. The right of the Pere Marquette Railroad Company to occupy Manahan avenue is not involved in this suit. The right of the plaintiff to use the avenue east of Sixth street is involved, whether by laying tracks therein or by using the tracks of another company. The validity of the-agreement between the plaintiff and the Pere Marquette Railroad Company for the use of such tracks- is not involved, but whether the plaintiff shall use a street without the consent of the city is involved. A reference to the action of the common council, and to the pleadings, and a consideration of what is the real subject-matter of the suit, puts this beyond question. It seems to be plain that if consent is given by a city to one company to occupy a street, no consent can be implied therefrom that one or more other companies may use the street by using the tracks of the licensed company. If it were otherwise, then no consent would be necessary to permit the use of the streets by any company with which the licensed occupier .could make satisfactory arrangements. To this effect, in principle, are City of Aurora v. Traction Co., 227 Ill. 485 (81 N. E. 544, 118 Am. St. Rep. 284); Schuster v. Railway & Light Co., 142 Wis. 578 (126 N. W. 26); Colonial City Traction Co. v. Railroad Co., 153 N. Y. 540 (47 N. E. 810); Erie v. Traction Co., 222 Pa. 43 (70 Atl. 904).

The decree of the court below must be in part affirmed, and in part reversed. A decree may be entered in this court retaining the plaintiff’s bill and granting it relief as herein indicated, but as to the claimed right of plaintiff in Manaban avenue, east of Sixth street, to lay tracks therein, or to use the tracks of the Pere Marquette Railroad Company, affirming the decree below. No costs are awarded.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., did not sit.