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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
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