992486

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992486 Law Department City of Seattle William T. Scott, Corporation Counsel Frank A. Steele Assistant Corporation Counsel Melvin G. Winstock City Attorney

Seattle, Washington, May 28th, 1894.

Hon. J. P. Sweeney, Chairman Railroad Committee, Board of Aldermen, City of Seattle.

Dear sir, -- In the matter of the proposed amendment to ordinance No. 262, as amended by ordinance No. 484, granting a franchise to the Oregon and Transcontinental Railroad Company and the Columbia and Puget Sound Railroad Company, I have to say, that after careful consideration of the questions propounded to me I see no legal reason why the proposed amendment to section one of said ordinance may not be adopted so far as the rights of the city are concerned.

Looking at this question from the stand point of the city's interests, after a careful examination of the report of the city engineer as to the expense to which the city would be put with reference to its streets if the present grade of said railroads were used, it would certainly be to the interest of the city to allow the said railroads to locate their tracks upon the street known as Railroad Avenue, rather than to have them use the present right of way.

The question submitted to me is a mixed one of law and fact. I have carefully examined the report of the city engineer, which I may say is exhaustive and to the point, and I have also consulted authorities bearing upon the proposition. Upon the question of fact it would seem that the interests of the city would be conserved if the present "Ram's Horn" right of way were abandoned so that all the railroads which enter the city should do so as nearly as possible, parallel with each other, thus making it more convenient to regulate and control these roads in the interest of the public. The fact that the city would be put to great expense by reason of the changing of the grades of the different streets would be a consideration sufficient to move the city council to adopt this amendment to the ordinance, if by so doing the city would not suffer or be liable for any damages by reason of the passage of such ordinance.

The supreme court, in the case of Hatch vs. Tacoma, Olympia, etc. R. R. Co., 6 Washington, page 1, passed upon the question of injuries to abutting property by reason of the granting of franchises for railroads upon the streets of cities. It was urged in that case that the city would be the party liable, and not the railroad company; but the supreme court did not sustain this contention, but held that the ordinance granting the privilege to use the street created no liability upon the city and simply granted such rights as te city had power to confer, and none other. This means that the city by virtue of the

992486 LAW DEPARTMENT City of Seattle William T. Scott, Corporation Counsel Frank A. Steele Assistant Corporation Counsel Melvin G. Winstock City Attorney

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Seattle, Washington

charter confers the right upon the railroad companies to use its streets, provided that all damages to abutting property shall be ascertained and paid in the manner provided by law. In the present ordinance there is a provision, in addition to the usual one "that the injury to the property abutting on the streets ipon which such track is proposed to be located shall be ascertained and compensated for in the manner provided by law", that the city shall not, in any event, be liable for any damages to the property owners or the railwat companies by reason of the rights granted hereby.

The supreme court, in the case of Seattle vs. Columbia etc R.R. Co., 6 Washington, page 397, holds that the Columbia and Puget Sound Railroad Company practically has a perpetual franchise for a right of way over the streets of the city upon the route originally fixed by ordinance NO. 262, and, of course, the city cannot arbitararily repeal the same; therefore the city is in no worse condition by granting whatever rights it may have over Railroad Avenue for the purpose of laying down railroads tracks than it is by allowing the "Ram's Horn" right of way to remain.

By the report of the city engineer it will be seeen that the course pursued by this proposed grant of right of way will leave the west twenty-two feet off Railroad Avenue to be used by other railraods which may come into the city, if the city council should see fit to grant franchises to any such railroads, and by section two of ordinance No. 262, as amended by ordinance No. 484, page 598-9 of the Reised Ordinances, the right then granted, and which, of course will continue in force, was in trust upon the express condition that any othr railroad company should have the right to the joint use of the railroad tracks which might be constructed by the railroads to which the franchise was granted; neing practically the provisions which are inserted in all ordinances granting franchises to railroad companies within the city.

Therefore, I see no legal objection to the passage of this ordinance, for the reason that the city will be in no worse condition than it now is so far as its legal rights be concerned, and I think that from a business and commercial standpoint the city will be in a better condition if the "Ram's Horn" right of way is abandoned, so as to do away withit and place all railroads on Railroard Avenue.

The question as to the agreement or acceptance by other railroads is not necessary to be inserted in this ordinance, because whatever

992486

Seattle Washington (3)

arrangements have been made, if at all, between the railroad companies cannot be altered or controlled by the city, and in fact, such agreements will be made only upon such terms as are agreed upon by the different roads. The granting of the present franchise cannot interfere with any of the legal rights of the other railroads, because just compensation must be made to such other roads if they should suffer any damage by reason of the location of the tracks provided for in this franchise.

The taking effect of this ordinance by the acceptance of the railroad companies to which this franchise is granted cannot interfere with any agreement which the different raods may have had with each other, as such agreement depends entirely upon the consent of the parties interested.

Yours truly, (illegeible) Corporation Counsel.