Wheeling daily intelligencer. [volume] (Wheeling, Va. [W. Va.]) 1852-1859, 1855-11-29
zFaURsDA FORMING. NOVEMBER %. 1855.
T5We mi lie i6iiswiins il he IBsitia1o.ssun,

q oeEOoEse forthe pr. iudiess of the writer of'hs
synopsis. - q s1s
Ths Augment in the wheeling Iniunc-
ton Case.
The p6fIts Of the argument OF counsel made IN
sthe successful application of the Baltimore and
Ohio Railroad Company. before the Supreme Court
goEAppsals oil FiEs ala, for the removal OF thetH-
junction Which the city OF WheeIing had obtained
9 inlIe lower ICourt restraining the Company from
making connection at RenWool, on the Ohio
nveI, With TIE Genital Ohio road, it may be Of
sddie.Ihtglesyt6 lay befo:e theipublc. AS stated
YeseIday, the positions assumed by the counsel
pt tbs Guy Of Is hFsIiqg s7snsd to rest on four
skIound9yis. lst. The provisions fOE Wheeling ia
AZ ahsess Of March g. 1871; a. her rights rnder tue
e6asr5et of July 6, 1917; sdS her rights stock
- holder. land 9Th, alleged distinction to the
navigation Of the Ohio river
On the 6rst point it was shown that the follow
ing section Of the act of March6 6, 1871, passed by
tie Issisatase Of Virgins, had been fully com
Piled with by the Railroad Company.
SO, Bs,itfFtLer enacted, That to secure 10 the
aid.cJ.yof Mheshng the beue6t'of the western
terminus, all parts Of the said railroad between
the MunongAheia nVeT and said terminus shall be
opened for The transportation Of freight aud pas
seuseFs mulraneOuS.ES and the Aggregate charge
for toll and Transportation, upon freight aud pas
respective ely, shalt be the same between
Baltim Ie and any point on said road within dl-
rect dIsiance OF Eve miles from the Ohio river, as
between, Baltimore aud Wheeling.
Itva9 shown also that the decision made under
,asu5segdentact of Mdrch q. 1850, providing for
a survey of srbilEatous 50 as TO settle the differ
eace oEopfn1oh between the company and the city
ofWheeling, as toths propsrrouie to construct the
rnaL on tt3rn the Monomghhela to Wheeling, hsd
been conformed to-an winch was not denied by
Wheeling herself. AZ regaids the second point,
The contractrefelred to OF July 6. ls47, one be-
tween committee of the city Of Wheeling aud a
committee Of the Baltlmort and Ohio Railroad,
PIeserlbiHgathe terms Of subscription by Wheeling
otS5oO, 100 To- the capital stock Of This company,
&C., aud which we append the following:
alt being the intention Of the parties TO this
a9Eeelent, among otLeF things, to secure To tue
city OF Wheeling the prac;IenI benetits Of the
Western ateuninus Of the Baltimore and Ohio
IlEoad, according 10 the provisions OF the SAID
law
Itappears that the circuit Judge had previously
pronouncedthts ugreeinent a "singular produce
ton" aud twas suggested ny the counsel tortLe
company that there room for the doubt il this
''ptesmble al the end,' the same Judge styled it
was COZ enant having any legal obligation ON the
. Company. but even if it were, it had been CON-
Piled with. Their reply TO the appeIlees' printed
mole OF this point says:
c''To constitute covenant tie court must be
" satisfied that the language does not merely show
that the parties contemplated that the thing might
be d0nes II must amount to budlng agreement
that The thing shall Le done. JdmssvS. CoehrGne
NV. Fl. 4 c., III. 1t is not enough 10 show that
= the pnElgS Contemplated that there would be Sc
cured 10 ~ hseIing the practical Dement'S of the
western terminus, according 10 the PROVISIONS OF
the said law; the court must be satisfied that there
was n binding agreement that the same should be
secuTerl. - .itt 7-..lf. g .ssr-.z..t-z.
.'Bui suppose there was such agreement; the
court Is not 10 add 40 the obligaons by which the
company has bound hi Tself. 1T is thing says
Lord Denman, 'fur The court 10 effectuote the in.
leHtNnl Of the parties TO the extent to which they
NAV have. even impeIfectty, EXPRESSED themselves,
aud another 10 aid TO the instrument all such cove
uamts upon a full consideration the court may
deem htlili- [1r completing the intentions of the
partirS, butwhlch they either purposely or lnten-
ilonalivhaVe omitted. The former is but the ap
pieation ofnTule of construction TO that which is
wIiref; the latter adds to the obligations by which
the paIlies have bound themselves and is OF course
quite tnaataorixed, rell iabte to great Practi
cal i4justice 10 the application,' Aspdin VS.. ius
tin, s IIoI q FL. N. s.. 64s, as Eng. Com. Law
Rep 64S; Dunn vs. Suyles,, ID. 645.
''What then IS the extentto which the parties
have bytliS clause exposed tlemselves9 II cer-
staiply goes no farther Than TO secure to Wheeling
the practical benefits of tie western terminus
v eprdingt5 ia prouisions Of sid l1lr. And the
very lerinsoF the clause of necessity import that
1.-The companYOn its part do what's according 10
tile pl6vf.Ions of the said law If this be the
lent and scope OF the l.use, then whether 1t be
mere recital or preamble at the end, OF whether
ut he a. substantive covenant, 1t furnish
sufficient foundation for the bill. For W heellng
- admits thatthe Baltimore and Ohio Company have
complied with the frSt section of the act OF March
6. 1871; and it is not denied that 10, secure 10
Mherhng the bsheft Of the western terminus,
according To the second section Of that act, all
parts OF the RAILROAD between the Nl0nOngahea
riveFdta said terminus wcre opened for the tEans-
p9Itgu9nof fIslght and pasSe ngerS simultaneously,
and the aggregate Charge ioT toll aud trnMSporta-
tioR upon freq at and passengers respectively are
the same between baltimore and any point on
sad lGg 9 within a direct. distance OF i've miles
sfrum thGsQ Ohio TlysF, as between Baltimore, and
Wheeling! Nor Isitdeniej, that the Baltimore
and Ono Company, haVesin respect to Their char
geS, complied W th the provision IN the sixth sec
) lI.SiE6E The same act. Thus all has been done
a. EBat was aSfsei OF can,enlpated BY The parties,
stO hseling The practical heneftS o. the
WesteIn terminus according y The prO5isioa0 OF the
said tas0." .V5{0 A-sa8gtt
ontheithird pcint--the rights of w heeling as a
stOckk6ldsI-tle circumstance which brought
about The Rsnwood connection are REFEREED to aud
!; iIshowa thaiilIesuited from no disposition of
the Baltimore aud Ohio -Railtosa Company 10 do
otherwise than make Wheeling the terminus; but
g"the 6thodIes of The Central Ohio Railroad
could notS or would not, make their road as fer as
siWheelingsS" Hence the arrangement for crossing
90 I3enWoud.
u this connection, Wheeling has also objected
!tothe loan oEboGilsahy the Baltimore compauYito
tia osuuak Ohio road. the to which was
the latter To@l was onlY constructed so far toward
Wahesliue asit was with the aid of these bonds.
She had objected TO The making Of the lateral
roal. tue purchase Of ten acres of ground at
Beuwood. but seSeral acts Of Virginia wee adlu-
ICED giving this powetto railroad eOmpa-
mics. and to the Ritinore and Ohio road especial.