Montgomery v. Santa Ana Westminster Railway Co.

This is an action of ejectment to recover possession of a strip of land in the city of Santa Ana, county of Orange.

Plaintiff had judgment, from which, and from an order denying a motion for a new trial, defendant appeals.

Defendant by its answer set up two separate defenses. In the second of these it set out:

1. That it is a corporation with power to construct and operate a steam railroad for the transportation of freight and passengers from the city of Santa Ana to Westminster, across, along, and upon any street, avenue, or highway.

2. That a strip of land thirty feet in width off the entire north side of the land described in the complaint was and is a public street or highway in said city of Santa Ana, under the control of, and in the possession of, the board of trustees of 'said city.

3. That said board of trustees by ordinance authorized and licensed defendant to construct and operate a railroad through and over said street, for carrying freight and passengers in cars to be propelled by dummy or motor engines.

4. That it constructed its road on said street and operated it as provided in said ordinance.

5. That it has not excluded defendant or others from the street,…