New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-06-27

I Waar
-gss accepted and they have become corooraop That
on he 6ih Of April ls52 defendants I'd in pur.u.pca az
.r chsrtr map showing their ocsiOa OF their road n
this county That the 9TH DAY Of the sane month Of
the sane wear John Jervs chief engineer Of the ps.
tits road in TO letter written TO him the IN by
Col Mason the chief engineer OF the defendants road
THE day after Col Mason filed said msp N which answer
M Jerys opposes IN strong terms the crossing Of the
plaintiffs track the grade by putting in crossing
frogs snd urging crossing by bridge, and concluding By
saying be would Be happy to Interchange views snd sn,er
into negotiations that proper TO put Of crossing
upon satisfactory and fair basis.
Thus IL that the plaintiff corporation from
the time OF ding their articles Of association and u 10
show BY the statute itself that the plaintiff hal power to
purchase receive by g and hold real and person estate
with full power TO survey and locate It's road and take pos
session OF and construct the far ~ the plaintiffs
could obtain the right Of way by purchase donation.
Again it follows necessary result that Il the plss-
tits had power 10 purchase or hold property In its own
name il had also the right take and hold the possession
II property purchased with its money ard for its use
Tbs purchase BY Mr. Judd aforesaid gave the plaintiff
title by operation Of law IL WAS a resHhag tHs and
Stute relation 10 such purchases declares the title
hs vest in the cssfH qve trust Thus see that the
plaintiff the real Of the right Of way in question.
snd was in the lawful possession and use thereof on the
9TH OF May s52 when the defendants unlswdy entered
upon the plaintiff track and the putting down
their crossing frogs without ssking leave to do or
giving notice Of such intention or taking any steps toward
procuring from the plaintiff by agreement Otherwise.
the right 80 20 cross the p aintf track
The first notice thereof from Col Mason that he
had done all this and the second notice that he would
maintain il by force.
The defendants insist that the plaintiff has not by pro-
per evidence shown corporation because thew say
that the third section of the act declared that certified
cepy the articles Of association and adsyts under the
hand Of the Secretary of State and the seal Of ofics
should he presumptve evidence OF the existence OF the
corporation.
Inc plaintiffs bill setsfo forth the acts done and user under
the act all which the defendants by their admit to
be true. twas not necessary to prove fact alleged By
one party and admitted to be true by the other OF what
Use is proof in such cases
But again the law is well settled that II there has been
Of corporate franchise by association Of persons
their existence corporation only be inquired int
by direct proceedings behalf Of the State aud 50
stated the law 10 be when the question raised by the
answer and argument. On this point see Ssund NYR
625 Ired n e. r. 476 Mass. Il. Isl 10 Ala So
Again the defendants insist Injunction properly
be granted in this ill the plaintiff first establish It's
right title Al law.
i admit that such is the rule laid down in many cases
and in many it IS not only proper but absolutely
cessary But this rule like al others has its exceptions
- viii show presently. Justice Story in his ID vol
Equity Juris $50 b.. says IT may be remarked in
conclusion upon the subject Of special functions that
Courts OF Equity constantly decline to lay down any
rule which shall limit their power and discretion to the
particular in which such njunctons shs be granted
or not and there is wisdom this course for is i'm
possible 70 Orsee all the eAgences Of society which may
require their aid and assistance TO protect right or re-
dress wrong
Il is says he, manly indispensable for the purposes Of
OF social justice in great variety OF cases and therefore
should be fostered and upheld by steady confidence"
mention this authority merely 20 show the rules when
other appropriate remedy existed to protect right or
redress wrong.
But in the case in yesey Jr 1861 Lord Eden cram
med this very question and shows of exceptions
the rule that you must proceed at law in doubtful titles
even
color of title In another, where the title doubtful
that the Judge differed in opinion 10 who had the title.
This authority IS directly in point The plaintiff here
was possession not only claiming title, but in fact had
the indl-puabe right 10 the possession He had the pos
session. and the right of possession and the right Of pre-
pery-a complete title
9 Paige ss-the case Of the Mohawk Railroad Company
rs Archer another directly ia point Of the ursdic
ard right of issuing the injunction in this where
it said that This Court has undoubted jurisdiction to
interfere by injunction where public officers proceed
ing Illegally aud improperly under claim of right
where the exercise OF such Jurisdiction necessary 10
prevent multiplicity OF suits at law" Again, the pre-
sent is proper for the exercise of such jurs
"dction the act complained Of - not mere respass.
bur attempt 10 exercise continued right of passing
and through the plaintiff fixtures 10 the perms-
rent and continued injury OF the plaintiff property"
THIS is the precise statement Of the before
Her. might stop on this point OF the case but HAYES
few cases 10 the same point
Sd Railway cases 355-N6rth Union Railroad G., vs. tho
Iouon aud T. Railway Co. IL is said, bnt il is nov
"cssry settled that in cases OF respass under color u
"te when the mischief apprehended irreparabe the
jurisdiction Of the Court exists !" aud incline stronglyto
the opinion that whether the mischief be rrepsrsbls or
not this Court ought by decree At least II not upon moon
extend and apply the Jurisdiction Of preventive Justice
to al OF tfespass IN which 10y analogy 10 Of
specific performsnce) damages would bs inadequate
and uncertain remedy and the protection Of a right in
specie the only mode Of doing complete Justice between
the parties This is the here The defendants by
gument say they entered under color Of title bys deed
from the grantOrs who first conveyed % Mr. Judd
the night of way Does any doubt that time is OF the
utmost importance 20 Railroad COmpanies-hat the com
psinsr have 10 slacken their speed in approaching the
crossing in question twenty times day and sOms-
tines come TO full stop get by safely That this state
facts b. grow by of additional rains that
the 20 put that dollars and cents pay
for the loss Of time the dread and fear Of collision in APP
preaching the crossing the anxiety Of the Qsnes ,bs
properly the trouble the YeaoB The danger Of he limb
ana OF property all stake upon the caprice
wbis or malice OF the Engineers Conductors OF the
trains running with feelings Of hostile opposition 20 each
other irving which shall get BY rst-what damages
can be given in such 10 be called adq uae or com
mensurate with the injury complained o. Eighteen souls
have been hurried from this world before their God by
Of his trespass and unlawful appropriation Of proper
~ and IL is said damages DO given commensurate
with the injury under the plausible excuse that il WAS the
result Of negligence.
There Is 70 action At law that reach the damages or
prt vent the msches OF the defendants passing twenty
tunes each day through and the com plain
anti fixtures to the permanent and continued injury Of tho
complainant who Is in every Of the term without
az equae relief except by the application ~ the remedial
power Of the writ Of Injunction See Vesey, 1888 I'd
Dow 5l9 ] Baldwin, 226, 230 and 23l
These show clearly that il Is the duty Of the Court 10
Corporations and keep them within their powers
The General Railroad Act Of this State, and the 18th
ton q deendents charter directs what they shall do
ID order another railroad track This the defend
ants refuse 10 entered byOrce, and EantOny
Wfuly and deliberately taken possession Of the
planants property in direct violation Of their charter
But again the dfendsnts object % this proceeding be-
csuse they say that the compsinanhas complete remedy
Al law ls by maDdamus 3D. by action Of ejectnent Sd.
BY action the and fth by action OF trespass-q
Now !. well settled that the proceedings by nandamus
Only lay when the party without any other remedy
For is said that will not that extraordinary
remedy in any where there u any other spscf
edy adequate to enforce the right SO IL be true
ur9ed by The defendants that the complainant hath three
hath