Opinion
Appeal from an order dissolving an injunction in the Twentieth District Court, County of Santa Clara.
COUNSEL:
Attorney-General Hamilton, J. A. Moultrel, Moore, Laine & Leib, for Appellant.
F. E. Spencer, for Respondent.
OPINION
By the Court:
It is provided by § 499 of the Civil Code that " 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."
The prohibition against the use of the same street by two or more railroad companies, for more than five blocks, is so plain and unmistakable, that there is no room for construction. The last section of that title provides, that the title is applicable to natural persons as well as to corporations. The occupation and use of the same street by two or more railroad corporations for a distance of more than five blocks being forbidden, it follows that the Mayor and Common Council had no authority to pass the ordinance in question, granting to the defendants the right to lay down a railroad track as therein mentioned, which exceeded the distance of five blocks.
The section just above cited (§ 499) differs materially from the first section of the Act of March 29th, 1870, (Statutes 1869-70, p. 481) which was construed in O. R. R. Co. v. O. B. & F. V. R. R. Co. 45 Cal. 378. The proviso to that section does not forbid, as does § 499, the occupation and use of the same street by two corporations for a distance of more than five blocks, but merely forbids the use of the same track by two companies " for more than five blocks in all." The construction of that section, as laid down in that case, has no application to the section of the Civil Code above cited.
Order dissolving the injunction reversed. Remittitur forthwith.