Imposition of Conditions on Grant.-Under the authority of this section a city may require a railroad company to keep a portion of a street improved and repaired, and the acceptance of a franchise under such condition is equivalent to an express agreement by the company to comply with such condition, whether ordered under existing street improvement acts, or subsequently adopted ones, and the cost may be collected in the manner provided for the collection of street assessments. (Schmidt v. Market St. Ry. Co., 90 Cal. 37, 27 Pac. 61. See note: 25 Am. St. Rep. 476.)

No condition can be imposed upon the grant inconsistent with the general statutes, and an attempt to define the time for the commencement of construction, and the completion of the road in the grant is in conflict with the general law and void. (People v. Sutter St. Ry. Co., 117 Cal. 611, 49 Pac. 736.)

Motive Power.-Where a municipality has exceeded its power in attempting to confer the right upon a street railway company to operate its road with electricity, such ordinance may be confirmed by subsequent act of the legislature, and such confirmatory act is not in conflict with section 7, article XII, of the Constitution, inhibiting the legislature from extending any franchise, etc. (People v. Los Angeles Elec. Ry. Co., 91 Cal. 340, 27 Pac. 673.)

RESTRICTIONS AND LIMITATIONS-MANNER OF CONSTRUCTING TRACKS.

Sec. 498, C. C. The city or town authorities, in granting the right of way to street railroad corporations, in addition to the restrictions which they are authorized to impose, must require a strict compliance with the following conditions, except in the cases of prismoidal or other elevated railways. In such cases, said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the streets on which it may be erected when allowed by the granting power:

First, to construct their tracks on those portions of streets designated in the ordinance granting the right, which must be, as nearly as possible, in the middle thereof.

Second, to plank, pave, or macadamize the entire length of the street used by their track, between the rails, and for two feet on each side thereof, and between the tracks, if there be more than one, and to keep the same constantly in repair, flush with the street, and with good crossings.

Third, that the tracks must not be more than five feet wide within the rails, and must have a space between them sufficient to allow the cars to pass each other freely. En. March 21, 1872. Amd. 1873-74, 212; 1875-76, 77.

Municipal limitations and restrictions: See sec. 497, C. C., supra, and notes.

Legislative History.

For basis of section, see act April 2, 1866 (Stats. 1865-66, p. 750). The original section did not have the words "except in the cases of prismoidal or other elevated railways. In such cases said railway shall be required to be constructed in such a manner as will present the least obstruction to the freedom of the street on which it may be erected, when allowed by the granting power'; nor the words, in the second subdivision, "and between the tracks, if there be more than one." The third subdivision did not have the words "must have," and read "between the track" instead of "between them."

It was previously amended by act of March 30, 1874, Amendments 1873-74, 212, so as to read like the amendment in the text except that it did not have the words first above quoted, commencing with "except."

Section Cited.

Whiting v. Townsend, 57 Cal. 518; Finch v. Riverside etc. Ry. Co., 87 Cal. 599, 25 Pac. 765; McVerry v. Boyd, 89 Cal. 309, 26 Pac. 885; Pacific Ry. Co. v. Wade, 91 Cal. 454, 25 Am. St. Rep. 201, 27 Pac. 768.

Annotation.

Street Improvement or Repair.-A resolution of intention to improve a street is not rendered uncertain by the insertion of the clause "except that portion required by law to be kept in order by the railroad company having its tracks thereon." This is the requirement of a general statute, of which the court was required to take judicial notice, and of which every citizen is presumed conclusively to have knowledge. (Whiting v. Townsend, 57 Cal. 515.)

The mere fact that a portion of a street improved was occupied by a street railroad company, whose duty it was to improve, or to bear the expense of improving a part of the street, does not impair the prima facie correctness of the assessment. (McVerry v. Boyd, 89 Cal. 304, 26 Pac. 885.)

Under act of April 2, 1866, companies operating street railroads in San Francisco are only required to keep in repair that part of

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the street lying between the rails; they are not required to keep in repair that part of the street lying between a double track. (Robbins v. R. R. Co., 32 Cal. 472.)

Middle of Street-Single or Double Track.-The tracks of a street railroad should be laid as nearly as practicable in the middle of the street. If the franchise does not indicate the precise position of the track, and it is not nearly as practical to the middle of the street the track is an unauthorized obstruction, and the owner of the fee may maintain ejectment against the company. (Finch v. R. & A. Ry. Co., 87 Cal. 597, 25 Pac. 765.)

An ordinance granting the right of way to a railroad company over one of its streets, and requiring it to construct its track or tracks as near the center of the street as may be, is to be construed with the statute under which the railroad company is incorporated, as providing for such use of the street, and for such single or double track as is authorized by the statute. In the absence of express limitation the city must be deemed to have granted an option to the railroad company to construct, either a double or single track. (Workman v. S. P. R. R. Co., 129 Cal. 536, 62 Pac. 185, 316.)

TWO CORPORATIONS MAY USE THE SAME TRACK.

Sec. 499, C. C. Two lines of street railway, operated under different managements, may be permitted to use the same street, each paying an equal portion for the construction of the tracks. and appurtenances used by said railways jointly; but in no case must two lines of street railway, operated under different managements, occupy and use the same street or tracks for a distance of more than five blocks consecutively. En. March 21, 1872. Amd. 1891, 13.

Legislative History.

For basis of section, see sec. 497, C. C., supra. The original section is as follows: "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."

Section Cited.

People v. Rich, 54 Cal. 74; Omnibus R. R. Co. v. Baldwin, 57 Cal. 168, 170, 177; Illinois T. & S. Bank v. Pac. Ry. Co., 115 Cal. 297, 47 Pac. 60; Hook v. Los Angeles Ry. Co., 129 Cal. 182, 61 Pac. 912; Los Angeles Traction Co. v. Wilshire, 135 Cal. 659, 67 Pac.

Annotation.

Construction of Section.-This section differs materially from its derivation (Act 1870, sec. 1; Stats. 1869-70, p. 481), which was construed in O. R. R. Co. v. Q. B. etc. Co., 45 Cal. 378, 13 Am. Rep. 181. This section forbids the occupation and use of the same street by two corporations for a distance of more than five blocks, while the old section merely forbids the use of the same track by two companies "for more than five blocks in all." (People v. Rich, 54 Cal. 74.)

For a judicial construction of the first section of the act of 1870 (Stats. 1869-70, p. 481), from which the present section was derived, see O. R. R. Co. v. O. B. & F. V. R. R., 45 Cal. 365, 13 Am. Rep. 181. The first clause of this section clearly means that a right to use the same street cannot be granted to more than two corporations in any case, and if granted to two, it must be upon the condition that both use the same track, and that each pay an equal portion of the cost of constructing it. The second clause contains nothing which conflicts with the construction of the first; but simply adds another limitation, viz., that "in no case must two railroad corporations occupy and use the same street or track for a distance of more than five blocks." If the provision of the first clause had been that two railroads might use the same track, each paying an equal portion for the construction of it, there might be some diffi culty in determining what it meant. But when it permits them to use the same street on that condition, and on that condition only, the limitation is not at all qualified in that respect by the subsequent clause, which, as before remarked, simply adds a further limitation, which in no sense can be regarded as inconsistent with that contained in the preceding clause. (Omnibus R. R. v. Baldwin, 57 Cal. 168.)

This section is a limitation upon the authority conferred upon incorporated cities by section 497 of this code. (Omnibus R. R. v. Baldwin, 57 Cal. 177, McKinstry, J.)

Compensation.-This section is controlling as to the amount of compensation to be given in case of the joint use of the same track, and must prevail, in reference to street railroads, over the general provisions of the code respecting the assessment of compensation and damages in case of the intersection of one road by another. (Pac. Ry. Co. v. Wade, 91 Cal. 449, 25 Am. St. Rep. 201, 27 Pac. 768.)

When applied prospectively to a case when no track has been constructed, the section leaves it to the lines to agree as to cost, which is to be equally borne; but it may also extend to a case where one line has already constructed and used its track, and another line seeks to use it under the section, in which case the latter is required to pay only one-half of its reasonable value at the time of permission to use it. (Hook v. Los Angeles Ry. Co., 129 Cal. 180, 61 Pac. 912.)

Ordinance in Conflict Void.—An ordinance which permits two railroad corporations to occupy the same street or track for more than five blocks is void. (People v. Rich, 54 Cal. 74. To same effect: Cmnibus R. R. v. Baldwin, 57 Cal. 169. Note citation: 25 Am. St. Rep. 478.)

Condition of the Grant.-The grant of a street railroad franchise is taken subject to the provisions of this section, and having been accepted, the company cannot be heard to complain that the mayor and common council have authorized another company to use its tracks upon the conditions named in the statute. (Pac. Ry. Co. v. Wade, 91 Cal. 454. See notes: 25 Am. St. Rep. 478; 34 Am. St. Rep. 684; 39 Am. St. Rep. 912; 57 Am. St. Rep. 735; 53 Am. St. Ћер. 678.)

The condition that the railway shall be commenced and completed within a specified time is complied with, so far as the blocks so used, by the purchase and use of the right to use the tracks of another street railway for a distance of five blocks. (Los Angeles etc. Co. v. Wilshire, 135 Cal. 652.)

CROSSING TRACKS-OBSTRUCTIONS.

Sec. 500, C. C. Any proposed railroad track may be permitted to cross any track already constructed, the crossing being made as provided in chapter II, title III, of this part. In laying down the track and preparing therefor, not more than one block must be obstructed at any one time, nor for a longer period than ten working days. En. March 21, 1872.

Crossing other railroads: See ante, sec. 465, C. C., et seq.

RATES OF FARE, SPEED, ETC.

Sec. 501, C. C. The rates of fare on the cars must not exceed ten cents for one fare for any distance under three miles, and in municipal corporations of the first class must not exceed five cents for each passenger per trip of any distance in one direction, either going or coming, along any part of the whole length of the road or its connections. The cars must be of the most approved construction for the comfort and convenience of passengers, and provided with brakes to stop the same, when required. A violation of the provisions of this section subjects the corporation to a fine of one hundred dollars for each offense. En. March 21, 1872. Amd. 1903, 172.