The national Republican. [volume] (Washington City [D.C.]) 1866-1870, 1869-12-31


in NJ oG SGs 'esysS .hs soa to instruct the
'uRr rs. that upon the whole evidence pro;
dueed and The admission. made on the part q
the United States, the Baltimore ana ohio
srsdua,ioo ~ from the boundary Of the city Of
Washington into the depot on square es2, y.
authorired By the several acts Of Assembly OF
ius,Sp: sSd sgreements Of the corporation OF
WILMINGTON, read In evidence, and 10 not In
and q, the aty ar. sSoa ,ss
second, third, ffth, and sixth counts, and so
much Of the seventh 80 relates to the depot
and the tracks entering the same and crossing
North Capitol street aud Its intersection win
Second. That upon the whole evidence, the
jury should render verdict OF acqutttsi, upon
40 much of the seventh count As relates TO the
tracks, aitlngs and rsils lesdlng on and over
d street, and the placing and keeping on and
over said tracks and siding. OF sundry cars,
steam engines, carriages, trucks, and wagons
Third, That there 10 no competent evidence
before the jury to sustain the fourth count, or
so much OF the seventh count as relates to ID
street.
Fourth. That the jury should render q yer.
diet Of Aequittal upon so much OF the seventh
count as relates to the placing and keeping Of
the tracks OF said road on North Capitol street
and its intersection with ID street, so as to OBJ
struct and stop up the sane, unless the Jury
street, and said obstruction was not the TEN.
porsry snd unavoidable obstruction caused By
arriving and departing trains.
Nj, Cook would drop the charge a. to Q street
and New Jersey avenue.
Nm. cox's ARauNrsr.
Mr.. COX opened In support OF these prayers
He quoted the set OF Congress OF 1881, which
gave the company power to pass with Its rosa
through the streets alleys Of sss s'y oI9.
the corporation shall agree TO . dlhefentlevel.
The building OF railro.ds y. speeisNy, ana
to be ieh TO the eosineers Of the railroad, and
when the corporation had agreed, II was the
business or tho engineers to do the work.
He then alluded to the act OF Congress Of
March, 1855, In which the right Of way Il given
through squsres 900, SIS, SIS, $50, oos, ssT, $780,
so7, $751; sol, IT6, ISL, us In the same manner A.
gress Is given to the passing over such public
ground as might be necessary, and giving the
road the right to choose It's own way as far a.
the Intersection Of Delaware avenue and II
street, from thence the route was to be chosen
under such restrictions and condition. a. the
Mayor and Oity Council of Washington might
power OF location outside of II street direct
RON Congress, Independent Of the city. This
was prind faeie case for the road outside OF
agree to the route. Tho act By which this
was then quoted BY Mr.. Coz. The route thu.
eontinued on to the reservation near the
Ttoer on PennsylyaniA avenue, and It was
eonsuueteu under the suthorfty OF the city.
The Court. You contend, then, that north
OF street the road Is located In accordance
with an set OF Congress, and the south Of tn at
seated. -
Mr.. Cook said that the prosecution adj.
mitted that the facts we're as stated W Mr.
been made In pursuance OF the autho rity Eiyes
BY Congress TO the city authorities.
Mr.. COX thea referred to city ordinance Of
May, 1850, In which the city agreed to the
location Of the depot At lite present location.
Mr.. Cox further contended that the right to
use certain squares which laid In a position 90
through all OF them then showed the Intention
Of Congress to permit the company to make
choice OF rs route within any Of the squares
named. The contention that the word 'mayn
In these acts should be construed as must
Xa. not supported by the acts relied upon 10
rs H. ssssngppeE, u wa, only when some persons
tss, The word mays Pony snssu,s PS-ss
Congress arst rave the power TO pess any.
where along the streets then said the roufe
"msy" be made within certain squares. Now
IL was evident that Congress did not intend to
eonhne the railroad within the named squares,
road and any part of the squares for curves or
the like. The company admitted that the au.
thorities could give the right TO obstruct
from the eityi 1t claimed from OonEress, and
matter.
Mr.. Cox then referred to the question Of
grade. Congress, IN the act of 1881, authorized
the road to come In on the present grade OF
the streets, unless the city should agree TO :
Of psoae % S.y assssg 81 .s az,
road, and thus agreed to a different Ieyeiv
and could not be an indictable nuisaace' TbsT,
might have been wsnt of foresight in grant
log those rights to the road, but the road wa,
IN ,aI Legal possession OF them. II was aow con
and repair streets, coul abrogate these No wer,
conferred by Congress.
the right OF the highways was yested G,di
narily the public have an easement over IN,
highway, but the property In the land belong,
to the adjacent owners. But the rule was an
ferent In this city. Ia Peters, zoe, Van Mes,
vs.. City Of Washington, the Supreme Couri
had decided that the fec simple OF all the
streets of the city was In the General Govern.
ment, for as matter of fact the whole OF ths
city land was first conveyed to trustees. and
the trustees Afterwards granted out such por
lion, Of the city as Is no" the property Of In
diylduAl pTopFIetors.
Mr.. Cox proceeded to consider what RICH,
Congress. had conferred upon the company as
TO the rtgh' OF way Ia the District.
He quoted the act Of Congress Of 1881 as
giying the railroad company the same rights,
Sans 10 ,b and afeS OF sss.sd 70
company hsd with regard to the said road in
Nssyiadd, He then quoted the act Of Feb.
Maryland To show what those rlghts, i'm mum.
ties, 40, were. This act gave the company
the same right, on the washlnEto brsneh 4.
they possessed on the Baltimore and Ohio
railroad main stem. This referred 10 tho aol
q February ls1, Of the General Assembly Of
Maryland. This latter act authorized the
location OF the road. the condemnation Of
lands, the repair Of the road, and giving III,
company an estate 10 the lands condem m ned n
fully as II the land had been conveyed to It.
II then proceeds to vest the whole property
ofthe road and machinery, rolling stock. kc
in the company forever.
This law vested the fee simple Of the n. I'D
and the road bed In the COMPANY, and Don.
gress had made this law the messure OF III
grant Of powers within the District OF Colum.
bta The road whether constructed on lots,
streets or highways, became the fee simple
property otthe company. The road.bed ceases
to be the street ard becomes the private prom.
srty Of ne company as completely as their
was sacred from the touch OF munici nal nu.
thorities az the house in which his honor
lives. These were not mere speculative
views they were sustained by the case OF
the Brooklyn Central Railroad Company W.
Brooklyn CITY Railroad Company-22 Bar.
bour ). q. Reports, SIS.
10 this case the former company asserted its
right TO use the railway on the streets OF
brooklyn on the ground that the railway was
part OF the street, but the court held tn st the
was monopoly Of the company free alike
public.
The power Of the city to repair and improve
the streets was continuing power, and the
city could change the grade Of a street at its
WI 10 ne case OF smith vs.. the Oorpors.
the regarding OF X street, at Franklin "a unrs
the supreme court had decided that the eItv
had power to change the grade OF a street, and
was not liable for consequential damages en-.
suing theTelFOm. The principle of this de-
cision steers entirely clear Of the doctrine
that the right to repair the street Involved ths
right TO modify the grants Of Congress to the
railroad. Was 1t not more logical to conclude
that the power to repair the streets was pro
idHi0 repealed by the act Vestlng the estate on
the toad.bed Ia the company The act Of
Congress took the Toad.bed out of highway
and gave 1t special right. 1t was eonIended
BY the other side that Congress could not have
intended to give the railroad company suoh
rights IL The public highway. But these gen
tlemen weft wise above what 10 written.
Congress had fuFeseen the present dl iiculties,
and provided for them. The di ficuity was
that the city authorities now sought 10 en-.
sfNt new conditions upon the grant of Con.
Congress to secure the public convenience
had nTst provided for the country part of the
county, and then arranged Tor the public con.
yenience Ia the city, by authorizing the city
to exact from the road at its hrst entrance
into the city such grades as should not here.
after intefie' with the public convenience,
The cIty dId exact such grade by the act OF
1885, aud II was liked for all time and the
streets Of the city must now be cOnformed to
thst grade The words lat all times herenf.
Ter" 10 mat act In relation to eulyert.
and bridges, showed that IN uhnIa