The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-03-08

ment Of 1873 was enacted. II is not the RAILWAY
spoken OF In the SUPP ement OF 1858 To ITS con-
Bduchon and use, think, the provision Of the fret
act maklug tho company subject 70 all the ordi-
nauces of the City COunci 8, applies. The act Of
le did not repeal the tenth section Of the act Of
Ie6i. IL only eXeep ed,' partially, from the ope-
ration OF that section the railway as thtn
auhorized ! am Of opinion, therefore that the
defendants have no right TO remove the pavements,
and construct railway ON tho new route described
in the oct Of 1865 without first obtaining the consent
OF the Cny Councils. And Il tins is correct the
city OF Philadelphia BEING the legal custoolan of the
streets witch the defendants PROPOSE TO invade by
their extension, has eXh bted IN its bill a right 70
the restraining power OF this court.
Here 1 might conclude. his in fact 6isposes OF
oil the reasons assigned in support of the demurrer
and conducts me 10 the CONCLUSION that they are
without fouDoati0n, The bill does present a case
ior an inluncuon against the proposed use Of those
parts Of Front Water and Walnut streets and Della
waie avenue. defined IN the supplement- OF 1855 as
the route OF tho new extension.
There IS, however another consideration which is
fatal TO the demurrer, though applicable to Della
ware avenue alone.
TO alnut is not hlehway over and on which the
Commonwealth has any power to grant any ran
chlse Except on making compensation g. the city OF
In Ihladephia, as trustees under the viii OF SteDhen
Giraro, and also making compensation to the other
complainants, who have AIDED the city by agree
ments and otherwise in accomplishing the objects
enumerated in sad win (some OF which reement5
are set outl ana thai Delaware avenue h gh-
way mat SO by due process OF law, or by plenary
oedication OF the owners OF land estate. The de-
murrer admits ali the averments OF fact contained
IN The Dill, though agree, 1t does not admit mere
charged are averrtd as LEGAL inietences from other
facts Specifically stated, j do not think so They
are aveIred directly and positively, aud while it is
iTHe hat reas ms are given Tor the ayerments, and
that those reasons CONSIST OF other facts those facts
are stated as evidence only in support of the main
Rverments. And looking at them, without relying
upon what is urged to be only legal deduction
from them, am OF o. inion that they show rights In
The compAinonIR superior to any constitutional
power of the Legislature to grant private corpo
ration the privilege of making rai way upon Della
ware avenue without providing for compensation to
n
will, and compensation to the other o3mplainants,
who have made conveyances or agreements, ex-
pressly TO subserve the purposes OF the trust Dea
ware avenue is not such highway as is under the
unlimited control OF the Commonweath th the mode
OF use on which be regulated by the Legislature
at Its p easure. The pubic right is very peculiar,
ana there nothing in the till TO diminish the force
ana effect OF the averment that the avenue is not
highway that the Legislature can appropriate, or
grant the use oI to IA lroad corporation, without
providing for compensation TO the cOmplanants as
owners OF private property.
will not no spend time TO consider the question
whether under Mr.. GIrard's will, beQueathIng
S300 COO 10 the Commonwealth, on the conditions
described therein one of whch was that laws
should be enacted to enable the making of the
avenue, the removal of obstructons and the prohl-
btion OF DISTINCTIONS eastward thereof, coupled
with the acceptance of the legacy, contract was
pro1ered and concluded, by which the Common
wealth was disabled from authorizing q railroad on
the avenue even upon making COMPENSATION. This
is grave question, and the present case does not
demand an answer TO 1t 1t Is enough that the
trustees for the purposes defined IN the will have not
SO devoted it to public use, as public highway,
that 1t can be used for a railroad, without their
assent, and without compensation made to them.
The demurrer of the defendants is, therefore,
oVerruled and perpetual injunction to the de-
fendants will be decreed against extending their
railway a org Front or Water street to Walnut
street, and down Walnut to Delaware avenue with
out first procuring the assent of the CITY Councils of
Philadelphia; and perpetual injunction will be
decreed against constructing rail way along Della
ware avenue from Walnut to Dock streets or on auy
part thereof.
CoURT OF QUARTER SEssGoNs--Judge Ludlow.
William Harmer was charged with receiving
a horse, the property OF Charles Miller, kno wing
the same to have been stolen. The evidence for
came honestly by. the horse, having purchased
him from a man TO whom he had been entrusted
for tale by the prosecutor. This fact being
proven, the Commonwealth abandoned the case,
and the Jury rendered a verdict OF not guilty.
Ernest p. Steck was convicted OF assault and
battery on one John Hess, and was fined S5 and
costs.
ceny, as ba!lee Of $40. The prosecutor not ap-
pearing, the jury rendered verdict Of not
guilty.
Alexander Thompson and Morris Kennard,
colored, CHARGED with assault and battery on
Samuel Mead. also colore6, were acquitted.
Jacob Shaltaker was convicted Of charge of
malicious mischief Sentence deferred
No other cases being ready, the Court ad-
ioUrned till tomorrow.
THE WEAVER AND GIVEN CONTESTED ELECTION CASE.
COURT OF COMMON PLEAs-President Judge
Allison and judge Pieroe.-The contested cleo
ton case was to have been resumed this morn
ing, but the Court stated that they had concluded
to refer it to an Examiner to take the testimony.
IC will therefore be proceeded with before an
Examiner appointed by the Court on Monday.