I dissent from the judgment of affirmance herein. In my opinion, the plaintiff has no interest sufficient to enable him to maintain the action. He claims no interest except that of a voter of the town and of an owner of property situated therein.
The effect of the ordinance in question was to give the railroad company a right to lay its tracks in the streets and operate a railroad thereon for public use. A private citizen cannot maintain an action either to remove or establish an obstruction in or interference with a public highway unless such obstruction or interference will cause special benefit or special injury to his private rights or his private property. (Blanc v. *Page 714 Klumpke, 29 Cal. 156; Lewiston T. Co. v. Shasta etc. Co., 41 Cal. 562; San Jose Ranch Co. v. Brooks, 74 Cal. 467, [16 P. 250];Hargro v. Hodgdon, 89 Cal. 628, [26 P. 1106]; Bigley v. Nunan,53 Cal. 403.) The plaintiff does not show that his property or private rights will be in any way benefited, damaged, or affected by the validity or invalidity of the franchise. Consequently, so far as the relief asked concerns the said franchise or the use of said street the plaintiff clearly shows no actual interest.
The only plausible ground upon which it can be contended that the plaintiff has a right to maintain an action to establish such franchise is that it is an action of the same character as that which was declared to be maintainable by a private citizen inGibson v. Board of Supervisors, 80 Cal. 359, [22 P. 225]. In that case it was held that a taxpayer of a county could maintain a bill in equity to annul the action of the supervisors in fraudulently and wrongfully declaring that the vote at an election held to determine upon the issuance of county bonds was against the bonds, and to obtain a decree declaring that at said election the vote was really in favor of the bonds. If the two actions were identical this decision would be authority in favor of the plaintiff. But there are important differences between them. In that case, the bond election merely determined the authority of the county board to issue county bonds; it did not purport to, and did not, vest a right of any character in any person. The county itself, being a local subdivision of the state government, had no interest in the matter. There was no person interested in having the bonds issued and the bridges built from the proceeds, except the citizens and taxpayers. If a citizen or taxpayer did not have the capacity to sue to have the real vote declared, the will of the people expressed by the true vote given would be defeated, because of the fraud or mistake of the supervisors in canvassing and declaring the returns. A citizen or taxpayer had no remedy provided by law; he could look to equity alone for relief. It was because of these considerations that it was declared in that case that the action could be maintained by a taxpayer. In this case the franchise, if valid, as the plaintiff claims it to be, was vested in the railroad company. That company, of course, had the right to prosecute or defend any action necessary for the protection of such franchise. If the referendum election was invalid for any reason, and the *Page 715 franchise consequently valid, that company could maintain an appropriate action for a judgment to that effect against any person or public authority interfering with its use of the franchise. If the town authorities, or the state, disputed the company's right and attempted to molest it in its exercise of the franchise, by civil suit or criminal prosecution, the company could, in defense, show the invalidity of the proceedings for the election, precisely as the plaintiff here attempted to do. The citizen, or property owner, as we have seen, had no interest in the matter, and there was in existence a party, the railroad company, competent to protect its rights and assert its claims. Therefore, the reason upon which the decision in Gibson v. Boardof Supervisors was based, does not exist in this case. The case is governed by the well known rule that courts do not entertain or decide cases presented by parties who have no legal or equitable interest in the subject of the action or in the relief asked.
Angellotti, J., concurred.