The Camden journal. [volume] (Camden, S.C.) 1866-1891, 1869-02-27


stucton Of that statute the referred to the eighth
section
Railway canal turnpike other public highway are dis
tnct terms used in the secon and "any highway the
only term used in the other section Now will any show
authority where law relating to highway has been
construed law relating to "raiway2"
dedication of land use of the public as highway
is not the dedication of it, to the Of railway" q Red
field, p 3O3)
general power road would include the power
turnpike and it has been decided By ways
has been decided by the Supreme Court of New York that
did not include right to turnpike and decided the
Court pf Errors that it did include such right
The Utica ard Schenectady Railroad Company had the
right purchase the Mohawk turnpike and
but authority to for railroad The Court held that
the corporation could embankment to its injury
of the tunpike but liable in damages the ad
joining proprietor Mahon Utica and Railroad Company
Lalor 1861 Here remarkable in which railway
company having boug turnpike proceeded it for the
purposes Of railway but the Courts held that although
dedicated to the highway did transfer become
entitled to the privileges Of railway.
The General Railroad Act New York. 1885, gives railroad
corporation power to construct it's road acro aon or
any stream highway plank road ETC., and adds condition
that it shall the stream highway its former
but challenge the for the other side find in
under that grant of power assert its right to
another railroad What means highwayY refer to Bouut
in title "Highway."
Again. "hghway" is term applicable to great roads lead
from town town. markets and public places and denotes
way to all travellers" Harding Medway 10 Met
4es Kents Conn., 525) Can railway then be considered
Ii
law relating @ralways2 think may please your Honors
there can be no doubt on these points.
No has been found in which railroad has nteered
by relating roads with thu privileges oanoher
railroads have the authority of special statute Your
Honors will bear with while quote from American Rail
way Cases. pp 1915 Bradley N Y and H. R. Co. @The
defendants although acting m and under authority derived
from the State do not act properly speaking in its behalf
it's agent representative with special reference to
the benefit of the public is the when roads or other
public improvements made under the immediate direction
and supentendenee of the State its agents constituted for
that purpose and for the general accommodation and benefit of
the community but under special grant deemed to
be acquired the State for valuable considerations and for
the promotion of their direct and private advantage
And therefore, in the judgment rendered in that the
learned Judge says the question between the two railroad
pane becomes between individual and the State
but merely between individual and another and depending
the and qualifications of the charter OF the defend
ants and the obligations imposed upon them by that nstru-
ment.' (P. 1861
In the case general law of the State
of and declares the that
competent for the Legislature that State to have made
similar law in relation to railways Not that the law regulating
"hghways applicable to railways but thata law might
be made which would regulate railways it necessary to
carry demonstration further by legal argument than to show
that all the States where regulations have been made
touching highways of them has the regulation been
extended to embrace the case of railway?
By reference the 10Th section of the 4th article OF the
constitution that "he qualified electors of each
scouny shall elect three for the term OF two years
who shall constitute Board of County which
"sha jurisdiction roads, highways ferries bridges
"and in all matters relating to taxes disbursements OF money
"for purposes Here CONSTITUTIONAL
similar to that which found the Northern Sae but
will your say that this clause evidently taken from
of their constitutions shall receive construction and involve
power beyond that which it ever has had elsewhere?
The rights claimed by railroads. whether as against nd
vduas against State matters that receive strict
construction therefore it is that right to run across
road" not right "along road and you cannot
along for the purpose of running This point
distinctly made in the of Smith A. Maine R. 35 Red
field A6-note) The of the Richmond Railroad Com
pany o. the Louisa Railroad Company reported in 18th How
ard IL Familiarity referred to- which establishes
than the right the Legislature by enactment to
authorize it and in that instance there was special
grant words carry the road to given point unless the
Richmond Railroad would consent to certain terms.
In the Of the West River Bridge us Dix Howard
the question related highway the Act of Vermont OF
1885, declaring that whenever there shall be occasion tor
highway the Courts shall havo power to take any real
estate easement franchise Of any turnpike other corpora
ton" 1t was question between bridges but the right
given the Legislature that special corporation was like
wise the cases of the Boston and LoWe Faoaa U.s.
Salem and Lowell Railroad e Gray R. and the Lowell and
Lawrence Railroad Boston and Lowell Railroad Gray ~
Judge WiardDo you take the position that this right OF
crossing only exist by grant in express TERMS and can
never arise by necessary implication?
Mr. Magrath-Not at ALL maintain that grant may be by
express words by mpcaon but that IN etner
mode if questioned it must be proved.
Now your Honors will find that neither according TO the
inition the hhwa by any to be found IN
the books has right given by Legislature to been
considered right could be claimed by araroad Authorities
ON subject most pointed character before and
be produced Court desires But this have shown
that in relation highways the constitution has provided
special jurisdiction for their reguatlon and that Jusdlc1o
does embrace cognizance Of questions OF railway may
10 further and say in all Of the States OF this Unon the
preservation of property and m in of railroads. and yet
our Hono are called upon the present instance when there