The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-17

corporation andor right of way shall be required
"upon any director or local agent of the corporation
Are the matters referred the first section by just
ucon Of that the referred to in the eighth
section?
nct used in the section and "any hghways the
only term used in the other section Now will any one show
authority where law relating to highway has been con-
construed law relating to "raiway?
GA dedication of land the the public highway
not the dedication of it, to the of railway Red
field, p. $685. ,.4.
The question has exercised the Courts New York. whether
general road would include the power to-
turnpike been decided by them in both ways
1t has been decided Supreme Court of New York that
did include right to turnpike and decided in the
Court of Errors that it did include such right. i
The Utica and Schenectady Railroad Company had the
right to purchase the Mohawk turnpike highway
but authority for railroad The Court held that
of the nrnpike but liable damages the ad
joining proprietor Mahon Utica and Railroad Company
Laor 1861 Here remarkable in which railway
company having turnpike proceeded to for the
purposes of railway but the Courts held that although it
dedicated to the oa highway did by its transfer become
entitled to the privileges of railway.
The General Railroad Act New York. 1850 gives railroad
corporation power construct it's road acros aong upon
any stream highway plank road etc. and adds acondon
that shall restore the stream highway to it's former state
but challenge the counsel for the other side to find in
the books New York. which railroad corporation has
yentured under that grant of to qssert its right cross
another railroad What "highway? refer to Bouu
in title Highway"
Again. highway applicable all great roads lead
from town to town markets and public places and denotes
way common to all travellers" Hardng Medway 10 Met
469 Kent's Com, $3.50 Can railway then be considered
public road Or is general law relating to public roads,
law relating "raways2" think may please your Honor
there can be no doubt on these points:
has been found which railroad has nterfered
any genealaw relating roads with
railroad it must have the authority of special statute Your
Honors will bear with while quote from American hail
way Cases pp 15 Bradley N Y and N H. R. R. Co. @Fhe
defendants although acting in and under an authority
from the State do not act properly speaking its behalf or
it's agent representative, with special reference to
the benefit of the public the when roads other
public improvements made under the immediate direction
and penendence of the State its agents constituted TOR
that and for the general accommodation and benefit OF
the community but under special grant of deemed to
be acquired from the State for valuable consideration and for
the promotion Of their direct and private advantage
And therefore, in the judgment rendered in that case the
learned Judge says the question between the two railroad com
becomes not between individual and the State
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. 1869
In case the Court speaks of general law of the State
of regulating highways and declares the opinion that
was competen for Legislature of that State have made
similar law in relation railways Not that the law regulating
"hghways applicable to railways but that law might
be made which would regulate Is 1t h @ TO
that in all the States where regulations have been made
touching highways in not of them has the regulation been
extended to embrace the of railway?
By reference the 10Th section Of the 4h article of the
constitution it will be that he qualified electors of each
couny shall elect three for the term of two years
who shall constitute Board Of County Commissioners which
asha have Jurisdiction roads, highways ferries bridges
and in all matters relating to taxes disbursements OF money
or county purposes etc Here constitutional regulation
similar which be found the Northern States but
will your Honors soy that this clause evidently taken from one
Of their constitutions shall receive construction and involve
power beyond that which it has had elsewhere?
The rights claimed by railroads. whether against indi
viuals against State matters that receive strict
construction therefore it is that right to run "across
road is not right to "along road and you cannot
"aong for the purpose Of running across This point
is dstnc made in the of Smith H. Maine r. a5 Red
field 246-note) The of the Richmond Railroad Com
pany the Louisa Railroad Company reported in 18th How
ard H. famiary referred to case which establishes
right of road to another establishes nothing
more than the right of the Legislature by enactment to
auhoze do and in that instance there was special
grant carry the road to point unless the
Richmond Railroad would consent to certain terms
In of the West River Bridge Dix, e Howard
500 tho question related to highway the Act OF Vermont OF
1885, declaring that whenever thero shall be occasion Tor
new highway the Courts shall have power to take any real
estate franchise of any turnpike OF other corpora
ton" 1t was a question between bridges but the right
eiven by the Legislature that special corporation, was like
wise given the Of the Boston and Lowell Railroad u.s.
Lawrence Railroad Boston and Lowell Railroad G Gray IL
Judge Wald-Do you take tho position that this right OF
crossing only exist by grant in express TERMS and can
never arise by necessary implication?
Mr. Magrath-Notat ALL [ maintain that grant may be by
express words by necessary mpcaon but that in either
mode if questioned it must be proved.
Now your Honors will find that neither according to the de-
fnon of Tie "hghway by any to be found in
books has right given by Legislature to highway been
subject pointed character before and
he produced the Courtdesires But this not all have shown
that relation to highways the constitution has PROVIDED
special jurisdiction for their cgulaon and that urdlctoh