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~. <br />X04 <br />225 PACIFIC REPORTER <br />68 Cal. App. 77 <br />SAN FRANCISCO-OAKLAND TERMINAL <br />RYS, v. ALAMEDA COUNTY et al. <br />(Civ. 4392.) <br />(District Court of Appeal, First District, Di- <br />vision 2, California. March 4, 1924. Hear- <br />ing Denied by Supreme Court May 1, 1924.) <br />i. Municipal oorporations 4646 - "Street' <br />relates to publio way in municipality. <br />Strictly speaking the word "street" relates <br />to a public way within a municipality only. <br />[Ed. Note.-For other deSnitiona, see Words <br />and Phrases, First and Second Series, Street.] <br />2. Highways 418-Public way generally re- <br />ferred to as "highway" or "road." <br />A public way over unincorporated terri- <br />tory of a county is generally referred to as a <br />"highway" or "road." <br />[Ed. Note.-For other definitions, see Words <br />and Phrases, First and Second Series, High- <br />way; Road.] <br />3. Highways X80-Fee to land usually rests <br />in adjoining property owner. <br />The fee to the land in a highway generally <br />rests in the adjoining property owner, and the <br />public holds the easement for' the use. <br />4. Highways 4'+80 -Municipal corporations <br />X658-Munioipaiity merely trustee of state <br />.with duty of maintaining .highpray. <br />Where adjoining owners own the fee.in <br />lands need as .highways or .etreets,.the esee- <br />ment lien in the people of the state, and the <br />county or the city. is merely the- -agent or tras- <br />tee of the state, committed to"thee duty of <br />maintaining the highway for the nee of the~pnb- <br />b. Appeal and error 43~909(I)-Assumed In <br />support of Judgment that ?ranohises Dover <br />right to use pubiio highway In which county <br />did eat own iee. <br />In the absence of any showing to the con- <br />trary, it will be assumed in support oP s jadg- <br />ment that franchises of a street railway in <br />.unincorporated territory covered the right to <br />use public. highways is which the county .did <br />not own the fee, but which were dedicated <br />to public use in the ordinary and usual way. . <br />6. Municipal corporations X647--JuNadidion <br />over highways transferred by annexatiort-cf <br />territory. "- <br />On annexation of territory to a dty ender <br />St. 1889, p. 358, entire jurisdiction and control <br />over highways therein for the benefit of the <br />state was thenceforth imposed in the city, and <br />jurisdiction of the county in respect thereto <br />ceased. <br />7. Street railroads 4318-Nature of franchise, <br />' The right which the grantee of a street rail- <br />, road franchise obtains is more than the mere <br />right to operate s railroad; the moat valuable <br />part of the franchise being the right to lay <br />tracks and operate its road oa a street, which <br />carries the obligation to serve the public in <br />the use of the street in furtherance of the <br />original use. <br />8. Street railroads @,.=+24(4)-Charge exaatsl <br />under franchise rental far use of hfghway,~ <br />The gross percentage charge enacted, nn~ <br />der a street railway franchise granted.~b~ <br />county ie in the nature of a toll or rental ~pl <br />use of highway. "'° <br />9. Const(tutional law 4134-Municipal ooi[+ <br />porations ~36(i)-City held entitled.. <br />percentages on gross receipts of street rail, <br />way In territory annexed, and no question-dl <br />Impairment of contract arises. <br />On annexation of territory by the dt~~! <br />Oakland under St. 18&9, p. 358, it becdm~ <br />entitled to annual payment of percentagea.ng <br />on gross receipts of operation of street a <br />ways located within the sneezed territory <br />operated by virtue of franchises granted by tl-e <br />board of supervisors of Alameda county, os` _' <br />accordance with the terms of the Brong <br />Act, granting the right to use streets "wi <br />unincorporated territory in the county";~' <br />gross percentage charge being in the nd <br />of s toll or rental for the use of the atr <br />and there being no question of impnirme <br />the obligation of contracts. <br />10. Franohises ~2-Deemed granted In <br />temptation of existing statutes. <br />Franchises granted after enactment <br />statute must be deemed to have been <br />contemplation of its terms. r;, w <br />I L. Statutes 4)219-Legislature eat <br />by Interpretation placed upon acts by~- <br />Dials. - ~~ <br />Legislature is not bound by an int <br />tion placed upon its seta by .the of8 ' <br />one county without, st least, some showing <br />such interpretation was brought to its. <br />either directly or indirectly., :i.i3t <br />Appeal from Superior Court, <br />Qounty; A. B. McSenzie, Judge. '" <br />Action by the San Francisco-Oaklan ` <br />urinal Railways, in interpleader, ag <br />County of Alameda and the City of <br />land. From an adverse .judgment, the, <br />named defendant appeals. Affirmed.:.,` <br />Ezra W. Desoto, Diet. Atty.r and' <br />Mitchell, Jr., Ralph E. Hoyt, and Car <br />Crosby, Deputy Dist. Attys., all of O <br />for appellant, ;'xs <br />Leon E. (Tray, City Atty., and M <br />Baer, Asst. City Atty., both of Oaklan `~. <br />respondent City of Oakland. " 7 ' <br />Morrison, Dunne & Brobeck, of San' <br />deco, for respondent San Frandsco-O <br />Terminal Rys. ?.`{, <br />NOURSE, J. The San Frandsco-0~ <br />Terminal Railways commenced this.' <br />in interpleader to require the county E <br />meda and the dty oP Oakland to litigi <br />tween themselves the question - as to , <br />one was entitled to the annual paym <br />percentages upon the gross receipts ~ <br />operation of street railways over c <br />streets now located within the mm <br />boundaries of the dty of Oakland. Th <br />~aFor other cases see same topic end KEY-NUMBEIL In all Key-Numbered Digeet8 and IndeYw <br />.R <br />d~ <br />.~O <br />.~ <br />-dv <br />r38f <br />-i~ <br />to <br />