I dissent. It is the settled doctrine of this court that public grants are to be strictly construed against the grantee. The construction given to *Page 544 this grant seems to me to go to the extreme of liberality in favor of the grantee. By the act of May 16, 1861, quoted in the opinion of the court, the governing body of a city or county may grant to a railway company the use of any streets or highways "which may be absolutely necessary in order to enable such company to reach an accessible point for a depot in any such county, city, or town, or to pass through the same along as direct a route as possible and accommodate the traveling and commercial interests thereof." This provision of the act is, I think, erroneously construed in the opinion of the court, which holds in effect that a city having once granted to a railway company a right of way upon one of its streets to reach its depot or to pass through the city on as direct a route as possible, thereby subjects such street to the control of the railway company to be used by it at its discretion in such manner as its convenience may dictate and in violation of the reasonable conditions of the grant. The statute, in my opinion, contemplates the grant of a mere right of way for the track (of a single track road) or tracks (of a double track road) to the depot or through the town, and such use only of the selected street as may be absolutely necessary for those purposes.
Construing the ordinance in connection with the statute, I think it was meant to grant only such right of way, and the use of the expression "track or tracks" in the ordinance had reference to the right of the grantee under the statute to construct its road with a single or a double track. If it should construct a single track road, it was to have the right to lay that single track on the street; if it should construct a double track road, it was to have the right to lay those double tracks along the street; and, in either case, the grant was made upon the reasonable and lawful condition that such track or tracks should be located as near the center of the street as possible, leaving the space on either side free for the passage of persons and vehicles. This condition made it necessary for the railroad company, in accepting and acting upon the grant, to make its election between a single and a double track. If it was a single track road, and laid a single track along the street, it was necessary that the two rails should be laid equidistant from the center line of the street. *Page 545 If it was a double track road it was necessary that each track should be equidistant from the center line of the street.
The company made its election. It laid a single track and laid it in the center of the street. It obtained access to its depot and a direct route through the city, and after using the franchise for twenty years proceeded to lay an additional sidetrack on one side of the center of the street and in clear violation of one of the express conditions of the grant. If it can violate this condition I do not see that it may not with equal right violate every other condition of the grant. I do not see, for instance, why it cannot lay another sidetrack on the other side of the street if it should determine such additional track to be necessary for its business.
As to the point that the railroad company was bound by its election to lay a single track in the center of the street, the appellants have cited in their briefs and in their petition for a reheating the case of Rush v Jackson, 24 Cal. 308. No attempt is made in the opinion of the court to distinguish that case, and in my opinion it cannot be distinguished from this case except by saying that the grounds for holding the grantee of the franchise bound by his election are much stronger in this case than in that.
The judgment of the superior court, in my opinion, was erroneous.
Reheating denied.