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Provo City V. Denver and Rio Grande Railroad : Brief of Appellee Utah Supreme Court

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Provo City V. Denver and Rio Grande Railroad : Brief of Appellee Utah Supreme Court Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs 2000 Provo City v. Denver and Rio Grande Railroad : Brief of Appellee Utah Supreme Court Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_sc2 Part of the Law Commons Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. P.T. Farnsworth, Jr.; W.Q. Van Cott; Grant H. Bagley; Solicitors for Appellees. Unknown. Recommended Citation Brief of Appellee, Provo City v. Denver & Rio Grande Railroad, No. 3239.00 (Utah Supreme Court, 2000). https://digitalcommons.law.byu.edu/byu_sc2/2 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. BRIEF OF APPELLEES IN THE United States Circuit Court of Appeals TENTH CIRCUIT No. 3239 PROVO CITY, a municipal corporation; MAURICE HARD­ ING, Mayor, and JOSEPH H. SWAPP and BLAKE D. PALFREYMAN, Commissioners of said PROVO CITY, vs. Appellants, THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a corporation; WILSON McCARTHY and HENRY SWAN, Trustees of its property, Appellees. No. 3240 PROVO CITY, a municipal corporation; MAURICE HARD­ ING, Mayor, and JOSEPH H. SWAPP and BLAKE D. PALFREYMAN, Commissioners of said PROVO CITY, vs. Appellants, THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a corporation; WILSON McCARTHY and HENRY SWAN, Trustees of its property, Appellees. c ;p!ifals ~.· !J:. e District Court of the United States 1- U L C fJ) the District of Utah 1\PR 24 194 6 /' . · ' P .. T. FARNSWORTH, JR. 1 $-rvA.t g ~'. -/-~.' . • Q. VAN COTT, if ~· · RANT H. BAGLEY, Ct.ER..i{ Solicitors for Appellees. AA ROW '111:81, IA\.T LAKt: INDEX OF POINTS AND AUTHORITIES Page EXPLANATORY NOTES 1 JURISDICTION OF UNITED STATES COURTS . 2 STATEMENT OF CASE . 3 1. The Mayor and Comm1:ssione'r.<; induced the Rail­ road to build the new yards inside instead of out­ side Provo City limits in order to secure addit?:onal taxes and economic benefits, knowing that the street crossings must be eliminated . 3 2. Full agreement was Tenchcd at the Feb. 25, 1 rJ43, meeting that the stTeet crossings would be elimin­ ated and the yards 1umtld be built inside the City. Actua{ commencement of the woTk was postponed, bec(tuse of a pTotest l>y citizens, until ApT. 7, 1948 4 3. The Commission on April 7, 19,~3, authoTized the railroad to go ahead with construction and prom- ised that the ordinance would be passed . 6 4. The RailToad relied on the promises and ?·epre­ sentations of the Mayor and Commissioners by abandoning the alternative o.f builclin.r; outside of Provo, by building the cut-off road and by con­ structing the new yards at a cost of $160,000.00 . 7 5. The City government and the public knew of and acquiesced in the closing of the streets . 8 6. The opening of a street across the yaTds would resu!t 1:n ir-reparable damage to the railroad . 10 7. No disagreement between the City and Rw:lroad existed J>rior· to September-, DJ43, until after the yards were built and just before a City election to elect a mayor and commissioner . 10 8. The Ra1~!road has not failed to comply with any condition imposed by the City to the closing of the streets . 11 INDEX OF POINTS AND AUTHORITTES-Continued Page I. UNDER WELL SETTLED UTAH LAW THE DISTRICT COURT PROPERLY ADJUDGED PROVO CITY TO BE ESTOPPEU FROM CLAIM'I!NG THAT THE CROSSING WAS NOT LEGALLY VACATED .................... 14 The District Court and this Court should follow the law as announced by the Utah Courts ........ 14 Co1·n Exchange Nat'l Bank & Trust Co. v. Klauder, 318 U. S. 434, 87 L. Ed. 884, 63 S. Ct. 679 .... 15 Erie R. Co. v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 . 14 Prudence Realization Corporation v. Geist, 316 U. S. 89, 86 L. Ed. 1293, 62 S. Ct. 978 . 15 Ruhlin v. New York Life Ins. Co., 304 U. S. 202, 82 L. Ed. 1290, 58 S. Ct. 860 . 14 It hns been well settled law of Utah since 1917 that municipal corporations may be estopped with respect to public str·eets and pr·opm·ty . 15 Hall v. North Ogden City, 166 Pac. (2d) 221 (Utah report not yet printed) .............. 18 Tooele City v. Elkington, 100 Utah 485, 116 Pac. (2d) 406 .................................. 17 Wall v. Salt Lake City, 50 Utah 593, 168 Pac. 766 ... 15 The weight of authority from other ju1-isdictions supports the rule of the Wall and Elkington cases ......................................... 19 BalduJin v. Trimble, 85 Md. 396, 37 Atl. 176 ...... 23 Boise Cay v. Wilkinson, 16 Idaho 150, 102 Pac. 148 .. 26 Elliott on Roads nnd Streets 3rd Ed., Sec. 1189 . 19 4th Ed., Sec. 1189 . 19 INDEX OF POINTS AND AUTHORITIES-Continued Page Essex v. New England Tel. Co., 239 U.S. 313, 60 L. Ed. 301, 36 S. Ct. 102 . 20 KanaB v. Wright, 137 Wash. 661, 244 Pac. 245 23 Los Angeles v. Cohn, 101 Cal. 373, 35 Pac. 1002 21 4 McQuillin, Municipal Corporations, Sec. 1515 20 Paine Lumber Co. v. City of Oshkosh, 89 Wis. 449, 61 N. W. 1108 ........................ 23 People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437 ................................ 25 People v. Wieboldt, 233 Ill. 572, 84 N. E. 646 ...... 24 Portland v. Inman Poulsen Lumber Co., 66 Ore. 86, 133 Pac. 829 . 25 Reuter v. Lawe, 94 Wis. 300, 68 N. W. 955 ........ 22 Roht·baugh, Mayor v. Molder, 26 Wyo. 514, 188 Pac. 448 .................................. 26 St. Joseph, City of v. St. Joseph Terminal R. Co., 268 Mo. 47, 186 S. W. 1080 ................ 21 The promissory nature of the representations by the City Offic1:als do not detract from the applica- tion of equitable estoppel . 27 Appellants base their argument under Points A, B and G upon asserted facts which ignore the Court's findings and the evidence supporting those findings . 27 None of the cases cited by appellants under Points A, B and G impair the authority of the Wall and Elkington cases . 30 Augusta v. Burum, 26 L. R. A. 344 ................ 31 Boise v. Wilkinson, 16 Idaho 150, 102 Pac. 148 .... 31 Most of the cases cited under Points A, B and G are distinguished because under Utah law Provo City had the power to eliminate the crossing by ordinance or by conduct such as to estop it from claiming that the crossing was not eliminated . 32 INDEX OF POINTS AND AUTHORITIES-Continued Page Tooele City v. Elkington, 100 Utah 485, 116 Pac. (2d) 406 .................................. 32 Wall v. Sa.lt Lake City, 50 Utah 593, 168 Pac. 766 .. 32 II. THE ELIMINATION OF THE CROSSING MADE IT UNNECESSARY TO SECURE FROM THE PUBLIC SERVICE COMMISSION OF UTAH ANY ORDER PERMITTING THE RAIL­ ROAD TO CROSS NINTH SOUTH STREET .... 33 Baldwin v. T1·1:mble, 85 Md. 396, 37 Atl. 176 ...... 34 Grand Trunk TVestern R. Co. v. City of Flint, 55 Fed. (2d) 382 .......................... 34 Union Pacific R. Co. v. Public Service Commission, 103 Utah 186, 134 Pac. (2d) 469 ............. 34 III. THERE IS NO SUBSTANCE TO APPEL­ LANTS' CONTENTIONS WITH REGARD TO THE UTAH REFERENDUM STATUTE ........ 35 Keigley v. Bench, 97 Utah 69, 89 Pac. (2d) 480 .... 35 Lewis v. Pingree Nat. Bank, 47 Utah 35, 151 Pac. 558 .................................. 36 IV. THE COURT DID NOT ABUSE ITS DISCRE­ TION IN DENYING THE PETITION TO IN- TERVENE .................................... 37 Re Engelhard, 231 U. S. 646, 58 L. Ed. 416, 34 S. Ct. 258 . 38 O'Connell v. Pacific Gas & Electric Co., 19 Fed. (2d) 460, 9th C. C. A ....................... 38 V. A MUNICIPAL ORDINANCE CANNOT IM­ PAIR OR RESTRICT THE JURISDICTION OF A FEDERAL EQUITY COURT .................. 39 INDEX OF POINTS AND AUTHORITIES-Continued Page The Denver and Rio Grande Western Railroad Co. v. Linck, 56 Fed. (2d) 957 .............. 39 National City Bank of New York v. Continental Nat'l Bank & Trust Co. of S. L. C., 83 Fed. (2d) 134 .................................. 39 VI. THE COURT'S FINDINGS ARE AMPLY SUPPORTED BY THE EVIDENCE ............ 40 Aluminum, Inc. v. Reconstruction Finance Corp'n, 151 Fed. (2d) 652 ......................... 40 APPENDIX A ..................................... Jurisdiction of the United States Court ............. Cahill v. Hovenden, 132 Fed. (2d) 422, lOth C. C. A. Continental Illinois Nat. Bank & Trust Co. of Chicago v. Chicago R. I. & P. Ry. Co., 294 U. S. 648, 79 L. Ed. 1110, 55 S. Ct. 595 . ii Cowles V. Mercer County, 7 Wall. 118 ............... Keaton V. Looney, 111 Fed. (2d) 34, lOth C. C. A .... In re Missouri Pac. R. Co., 24 Fed. Supp. 724 ......... Schaffer v. Hughes, 139 Fed. (2d) 438, 8th C. C. A. ... Seattle v. 0. & W. R. Co., 255 U. S. 56, 65 L. Ed. 200, 41 S. Ct. 237 ................................... Sho1·tridge v. Utah Samings & Trust Co., 40 Fed. (2d) 328, lOth C. C. A .......................... Thompson v. Terminal Shares, 104 Fed. (2d) 1; 8th C. C. A., certiorari denied 308 U. S. 559, 84 L. Ed. 470, 60 S. Ct. 100 ............................. APPENDIX B . ii Text of Various Utah Statutes . ii Section 15-8-8 Utah Code Annotated 1943 . ii INDEX OF POINTS AND AUTHORITIES-Continued Page Section 25-10-21 Utah Code Annotated 1943 ii Section 76-4-15 Utah Code Annotated 1943 .
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