The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1872-11-15
Miscellaneous.
IMPORTANT RAILROAD SUIT.
DECISION OF JUDGE HARDING.

dclphta Railroad Company Common Pleas
The penyiJls,s sIEazlelon !, ena # # II hSSSS%n$s
Simon She p ase and Go3 gos e. E. NY October
Stlckney. 1872.
Rule to show cause why special in
junction shall not be dissolved.
Judge Harding after reviewing the
history of the case at some length, pro-
cceded as follows:
In disposing of the matter now, it is
not necessary, nor would it be either
proper or possible for me to go into the
general merits of the controversy exist
ing between these rival corporations.
That can only be done after final hear
ing upon bill, answer and evidence.
Ali that is Immediately requisite may
be summed up in the inquiry, Have
the plaintiffs exhibited to us such a
clear statutory right to the line of the
railroad as set out in the bill, accompa-
MED by such showing of facts indicat-
ing on the part of the defendants, not
only present, but contemplated fu-
ture and permanent invasion thereof,
as should induce chancellor, under
the established rules governing Chan
Gerry Practice, to discharge this rule!
We put the inquiry in this form, and
shall discuss it in this order; because,
practically, and in effect, the case stands
now in the same position as though no
special injunction had been issued. In
other words, it may be considered as an
application de moro on the part of the
plaintiffs for special injunction.
The plaintiffs, in the first place, proffer
an act of the General Assembly of this
Commonwealth, entitled can Act to
Incorporate the Wilkes Barre and Phil
adelphia Railroad Company" approved
April 4th, 1868.
BY the terms of this act, there was
granted to the corporation "the right to
build and construct railroad from a
point on the line of the road of the
Little Schuylkill Navigation Railroad
and Coal Company, and connecting
herewith, at or near the junction of
the East Branch Of the Little Schuyl-
kill river thence up the said stream,
and down the Black, or Nescopec creek
| to the coal basin, known as the Wyom-
| ing coal field, and terminating at or
| near the town of Wilkes-Barre, in the
county of Luzerne, or by such other
| route as may be deemed practicable :"
and also the right "to lay out and con-
struct branch railroads, not exceeding
ten miles in length, and to connect with
other railroads." prohibiting, however
| the corporation from constructing"t their
railroad, or any portion thereof, upon
any route" before that time granted to
any other company whose location had
been made, and the construction com
menced, in good faith, within nine
months from the passage of the act.
The act Of incorporation further pro-
vided, that the road should be COM
menced within ten years from the date
of the grant.
BY a supplement, approved April
| 18th, 1866, the corporation was author
lied "to connect their railroad with
| the Philadelphia and Erie railroad, al
or near Northumberland, or Sunbury
or at such point as their engineers may
select, so as to form a continuous line
of railroad, of uniform gauge, from tho
| Wyoming coal field to the harbor o.
Erie, by the best practicable route, ant
may also make connections with any
other railroad, or railroads, now auth
orized, or constructed, leading to o.
forming part of line of railroad leaG
ing to the city of Philadelphia anC
for the said purposes may cross any
other railroad or railroads, at grade ,
and so much of the original act as re
quired the company "to cOmmenc
their road at any point on that of tn
Little Schuylkill Navigation Railroa
and Coal Company and further desig
mated the route of the road, was rt
pealed.
1t will hardly be questioned that thi
act of assembly together with the SUI
plement, gave to the plaintiffs, prinl
fdcic, the right to locate railroad 0
the line now in controversy. True, tn
I legislation is exceeding general in il
! terms, being totally destitute of an.
thing like speciality, or defniteness {
9 to location, except as between give
termini. This, however, is by no NEAR
an anomaly in modern legislatiN
: grants, particularly to railroad comp
y , nies; ON the contrary, it is the commc
exercise of the right of eminent domai
e inherent in the legislative body. b
sides it must be remembered that v
have not in our State the English sy
tenn, which requires the datum line
e be surveyed and defined before Il
. franchise is granted (; nor have we Il
E. New Jersey system which requires Il
l. final location, as soon as it has been d
7 termined, TO be filed in the office of Il
ii Secretary Of State.
a, Having thus seen that the plainti
s. possessed legislative grant to loca
- their railroad between the termiai me
d. toned in the bill, the inquiry then |
j, comes important concerning the tin
and manner in which this grant W
a sought to be enjoyed. In other wore
II did they within reasonable time ent
# upon the exercise of their franchise
the extent and in the manner necessa
to secure its enjoyment to the exclusi
Of all cOmers?
ar Did they actually locate their 70
lH over the territory in controversy a
lis if so, When did they do it, and hoi0 {
10 they do it?
80, In this connection / may say, Il
ok tho location of a railroad consists
ne | n,orlyinu ont tho oantro limo there