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

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