Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-27

y
lines of street railway in the city, appears TO
-denend upon the question whether Judge
s,oror viii hermit them to be built. So far,
that gentleman has. seemed to consider 1t his
business to give force to the wishes of such
as are opposed to their construction. One
body of our fellow-citizens are disinclined to
have a line Of railway traverse the street
where they reside. Judge Storer decides
that IL shall not so traverse. Another body
favors a single, but objects to double track,
past their residences. Let the track be sim
gle, DEGREES Judge Storer. 1t is true that he |
discovers reasons for his several conclusions; |
but unhappily, perhaps, those which he
urges in one case, are incompatible with
these which are declared to govern in an
other. The better way for his reputation
would be to pronounce his DEGREES at once,
without attempting to place them in the light
of logical conclusions-in which case he
would escape that criticism whose slightest
effort is sufficient to show, not only the un-
tenability of his positions, but the incon-
sistency of the arguments which he employs
for their support.
OF court so respectable as the Superior
Court of Cincinnati, is holden to be; so
learned in the law, and so able in all ques-
tions where limits and precedents are fully
established, or of any of its members, 1T
would be wrong to speak hastily. Judge
Storer is a well-disposed gentleman; deeply
read industrious in his official calling, and
other things being equal-preferring right to
wrong, justice to injustice; yet, in spite of
aN these desirable qualities, under GER
tain circumstances, the judicial reason
ing of Judge Storer is as uncertain as
his department upon tho bench is undig-
nifed. Confined to nisi priuS and unknown
parties he would, doubtless, serve the public
with faithfulness and to general acceptance;
intrusted with questions novel in form, and
brought under the disturbing action of social
influences il is difficult to tell which the
most to admire, his incapacity to apply known
principles, or the alterations of his judgment,
exhibited in the enlistment of his reason in
the service of his prejudices. Power, in the
hands of such men, is dangerous implement;
the more so, perhaps, if they think themselves
conscientious in its exercise.
In the decision of the case on application
for an injunction to restrain the Pendleton
and Fifth-street Market-space Railway Com
pany from laying double track on Broad
way, as reported in the papers of the city, we
are able to gain farther information as to
rules under which Judge Storers discretion
is to be exercised in respect to future lines of
railway. In the case of Robert Hosea and
others Us. The Ohio and Mississippi Railroad
and others, he discovered an ultimate right Of
was in all future time to be used, remaining TO
the original dedicator, and passing TO all who
are in PriUity Nth him.
This ultimate, or in other words, this para
mount and perpetual right, was so construed
as to place in the hands of the holders Of the
property, bounded by the street on which it
was proposed to lay railway track, the
power to prevent its progress, merely by
raising an objection, to which it was thu
business of the Court to give legal effect. Ii
the decision of Tuesday, we learn how mar
rowly the city has escaped being deprived o
railways altogether. The Court remarked
that there were several interesting question
which arose in the consideration of the case
and which were reserved for the final hear
ing. One had reference to the power Of tn
City Council to pass the ordinance. H
continued:
"If this were an open question, if thes
passenger railroad companies had not bee
permitted to occupy the streets, and had no
expended large sums of money in equippin
their lines, he would have very little hesita
ton in saying that Court of Equity woul
enjoin the City Council from granting an.
permit TO use these roads"
That is to say, nothing but the fact that tn
roads are built, prevents Judge Storer fror
issuing his mandate and keeping them OF
entirely. If the question was, shall they
% built2-he, as Court of Equity, would deei
it his duty to decree in the negative.
The people of Cincinnati have, therefor
in the first place, to thank Heaven that Judg
Storer did not awake TO a sense of his o
fetal powers and obligations until-so far
two orthree important lines are concerned
was too late; and in the second place to wo
der why he does not interpose his authori
and prohibit the further progress Of tho
lines whose expenditures are as yet comps
atively trifing.
In attempting to get out ofthe difficultyin
which he fell when he invented the ''ul
mate right Of supervision" for the benefit
Robert Hosea and others, Judge Storer
been driven to further inventions. He n
finds that this ultimate, paramount and p
petual right-this right which remains to
original dedicator, and passes to all WhO
in PriUity Nth him-is defeasible by the
of a third party gaining an adverse posI
sion. In the case of Hosea it was holden I
railway was perversion of the street
purposes foreign to the original intent, q
therefore, its construction was prohibited
the case of the Broadway parties, it is
down that perpersior, through an expel
ture of money by the party perverting,
comes vested right, with which to inter
isnot an "open question" How much loI
this Judicial harlequinade is to continue
how much further it is to be carried, is,
haps, also an open question; but if thel
any reason, any learning, or any sens
duty in the aggregate Court, it is not ou
place to express the hope that ON the -
hearing" it will be made to appear.
II was thought by some, and that not "