WALKER et al. v. CITY OF DENVER et al., 76 F. 670

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court. The charter of the Denver Circle Railroad Company fixed the gauge of its road at three feet. After the appellants came into possession and control of the road, they proceeded, without the consent of the city, to broaden this 3-feet gauge to the standard railroad gauge of 4 feet 8-1 inches, by laying down a third rail.

Having in this way converted this narrow-gauge into a standard-gauge road, they proceeded to operate it as a standard-gauge road by running over it their standard-gauge rolling stock used on their main line. The single question presented by the record is whether the appellants, without the consent of the city, could broaden the 3-feet gauge fixed by the charter under which the road was built to a standard-gauge, and thereafter operate it as a standard-gauge road, in connection with and as a part of their through line to Pueblo.

The charter of the Denver Circle Railroad Company defines its corporate powers, and not the city ordinance licensing it to build its road in the city. Its charter emanates from the state, and not from the city. Chicago City Ry. Co. v. People, 73 Ill. 541, 548. The company cannot disregard the limitations, express or implied, imposed upon it by its charter. That authorized the construction of “a single or double track, three-feet, standard narrow-gauge railroad.” The company was not authorized to construct a road of any different gauge, and, by implication, it was prohibited from doing so.

The rights granted by the ordinance of the city to the company to construct “and operate a single and double track railway” empowered it to construct and operate, the kind of a railway it was authorized to build and operate under its charter, and no other. The charter of the company must be read into the ordinance, and the two construed as one instrument. So construed, the ordinance limited the gauge of the road the company was authorized to build and operate to three feet.

The company, therefore, acquired no right or authority from the ordinance to broaden the gauge of its road, and could not lawfully do so without an amendment to its charter, and a further grant or license from the. city. Ordinances authorizing obstructions upon the streets of a city, which would otherwise be nuisances, are strictly construed, and must be closely pursued. Any substantial variation from the terms of the grant or license is ultra vires. 2 Dill. Mun. Corp. § 657. Such grants are construed most favorably to the public where there exists a reasonable doubt as to the extent of the privileges conferred.

Thomp. Oorp. § 5345. If the company or its successors can convert one of the three-feet tracks it is authorized to build and operate into a standard gauge, it can do (he same with the other, and thus appropriate to the use of its tracks three feet five inches more of the street than its charter aud the ordinance authorize. More than this, if the claim of the appellants is well founded, they can convert the three-feet, gauge of both tracks iuto broad-gauge tracks, and occupy still more of the streets, without any further grant or license from the city.

In the view we take of th(¡ case, we do not find it necessary to consider the question whether the charter contemplates the construction of a street railroad or a railroad for general traffic. Williams v. City Electric Ry. Co., 41 Fed. 557.

The charter is for “a continuous belt or track around said city of Denver," “within five miles of the crossing of Lawrence and Sixteenth, streets, in said city.” Under these provisions of the charter, the road cannot be extended beyond the suburbs of the city; and this fact, together with the gauge of the road, indicates that the road is to he used exclusively for local purposes, and not. become a part of a great line of road of standard gauge employed in the transportation of freight and passengers throughout the country.

Under the charter and the city ordinance, the gauge of the road cannot exceed three feet, no matter what may be the character of the traffic over it. The appellants have no more right under the charter to broaden the gauge of the road than they have to build a. standard-gauge road from Denver to Pueblo. The charter constitutes the index to the objects for which the corporation •was created, and to the powers with which it has been endowed. Thomp. Oorp. § 5639. The change of the gauge and the change of the use of the road by the appellants were a new burden put upon the street without authority.

It was the creation of a public nuisance, which it was the right and the duty of the city to abate. The decree of the circuit court is affirmed.