Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1871-09-04
LOCAL NEWS.


r,unrv Court Of this county, this morning, de-
i;,.,raj the following opinion in the case of
r.o.3lv and others vs. the Washington and
Alexandria Turnpike Company and others, on
motion 10 dissolve the injunction awarded By
,,1c. C.. in chambers, lat Fairfax Court House,
fav DAYS since, TO prevent the further prose
,,,;on Of work on the Turnpike by the Alex
n,}ri., and Fredericksburg Railroad Company
Freddy and others vs.. the Washington and
,)cSandria Turnpike Co., and others:
lhis is bill fled by the complainant, Freddy
.nl others. claiming to be the owners OF land
; ;;nj;ne on the Turnpike. The Washington
."j Alexandria Railroad Company has also
I..u oiued as plaintiffs because of alleged in
'"rr 70 its property. The object Of the suit is
,ncpoin and restrain the defendants from using,
'ycayatng and occupying the track Of the
Washington and Alexandria Turnpike as 4
railroad ltappears from the proceedings that
n. Turnpike Company was chartered by Con-
.rcss in 1905 Alexandria being then part OF
m. District Of Columbia) with authority to
,,ystruct turnpike road between Alexandria
and the Long Bridge. The land acquired BY
the company for this purpose was 100 feet IN
width. part was acquired by condemnation
,nJ larger part by grant from Charles Alex
rnJer In the deed from Alexander it is Stpu-
EIcl that the land should be used for turn
nike, and in the event that it should cease to be
:, used, it should revert to It's owners The
charter also provides that it shallremaln open
,,rryer as !, highway BY an act of the
General Assembly, passed April 1854, the
Turnpike Company was authorized 10 convey
>uch part of it's road asst might deem proper,to
any railroad company running between Alex
:nlria and Washington: and by deed dated in
1874. the Turnpike Company did convey to
the Alexandria and Washington Railroad Com
uany the eastern half of the road, to wit: fifty
feet
The Alexandria and Fredericksburg Railroad
Company was chartered in 1861 and revived
again in 1870.
The plaintiffs charge that the Turnpike Com
pany and the railroad companies have coul-
bined together for the purpose OF tearing up
the road bed Of the Turnpike aud constructing
their answers do not deny that railroad Is
being built over said highway, but that the
TURNPIKE is being regarded and improved.
1t is manifest to my nina that Il railroad is
intended to be constructed, and IL Is equally
20, that the Turnpike Company have no right
"a appropriate the road 10 any other purpose
than as a highway. The land WAS condemned
aud conveyed for turnpike pun poses and 10
other. The fee of the soil remains IN the OWN
ers, and having been appropriated to turn
nike. it cannot. BY the Turnpike Company, be
subjected to railway uses and to the control of
railway corporation. The land was conveyed
for a special purpose, on the ground of public
utility; and it must be confined to that parlcu-
lar use 1t is not convertible TO another and
different use Now there is no identity between
a turnpike and railway, and to construct and
operate railway over land, which has been
condemned or conveyed for turnpike purposes
would be to subject it to 4 burden or additional
servitude not contemplated either 10y, the LeglS-
lature or the owners of the soil; nothing more
vas acquired by the dedication than an ordinary
easement, or right to use the premises as
highway. 1t was conteuded, however, by the
defendants, that a railroad was an improved
highway and imposed no additional servltudc
on the land and that the uses Of i railroad and
highway were substantially identical.
This doctrine cannot be malntaned there
IS manifest distinction between the common
right Of every man to use upon the road con-
reyance of his own at will, and the right Of
corporation to use its conveyances to the ex-
rlussion of all others between the right of
man to travel in his own carriage without pay
and the right to travel in the cars of railroad
company on paying its price. See Attn Cushing
to. 10th New York o.; in the latter case
Judge Sedeu says A railway cannot be built
on highway without compensation to the
owners of the fee, and all the authorities cited
concur in the principle that the land owner Is
entitled to additional compensation Tor the new
burdens on his SOIL
think, moreover, that the Alexandria and
fredericksburg Railroad Company is acting in
coutravention Of its charter. Section provides
that in the extension Of said railway it shall not
interfere with the rights or franchises OF any
railroad between Washington and Alexandria.
Section provides that it shall be constructed
from its iuncturc with the Richmond Fredcr-
icksburg and Potomac road to Alexandria be
fore its construction shall be commenced north
Of Alexandria, Both Of these provisions have
been disrcgarded The road north Of Alexan-
dra has been commenced prior to the compile
ton of the road between Alexandria and Fred
cricksburg, and it further appears that the
property Of the Alexandria and Washington
Railroad Company has been encroachcd upon
nearly its entire length.
These companies are cear y tranSccndng their
powers and intllctlnga wrong and injury on the
complainants, and the injury being of continu-
Gus nature Court of Equity has jurisdiction
TO restrain The motion to dissolve the lnlunc-
ton heretofore awarded is ovcrrulcd.
REED BIRDS. Reed birds are now plentiful,
and are hawked about the city at hon thirty,
to forty cents dozen. The most Of those
brought here are killed in the marshes along
Cameron Run, the upper portion of Hunting
Creek, and in He'll Hole, the extensive swamp
on the West Grove estate between Hunting
and Muddy creeks mainly in the latter. They
,ro usuo]Iv sbot i'm thc morning BY hunters
who 60 into the swamp toward the close of day
in their skiffs, and having marked the rooStin1g
places of the birds as they fly singly or IN tiocks
and settle in immense numbers and closely
packed among the marsh flowers, come. away,
but return an hour or two before sunrise the
following day, and from that time until inc
game can see to fly discharge their shot guns
at random into the marked places: after which,
when the day has fairly broken, they pick up
what they have killed. The birds feed in the
fields and marshes further north, and tor an