The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1872-11-15

$500 per year for the hrst Two lines, ana VI OOfoi
. co III additional line.
upon the ground. He proceeded with
competent assistants, and located,
finally, line on the eastern bank OF
the Susquehanna river. from Wilkes.
Barre to q point on the line then being
constructed in Scotch valley, which
was adopted by the defendants nt a
regular meeting of the board Of direc
tors;" map or profile being also made
by Mr.. McNair, which was attached,
and marked 81. S. McNalr, Al" That
this line twas we'll and permanently
located upon, by driving stakes at sta
tions one hundred feet apart, and max.
ing regular bench marks, which still
remain upon the ground"
The affidavits of George o. Bright,
Thomas B. Taber, Isaac n. Lyons,J. w.
Wheelen, John Shields and George w.
West, some of them axmen, some rod
men, some contractors, and some en-
| gineer5, are incidentally corroborative
of that OF Mr.. Kase as to the character
of the McNair location Of 1870. But %
the inquiry at this point becomes some
what pertinent concerning the truo
| character of that location, and as Mr..
McNair himself Is unquestionably the
most competent to enlighten US in this
| behalf, we therefore pass by the evi.
| dence of the axmen, rodmen, contract
ors, engineers, and even that of Mr..
Kase himself, to the evidence of the
| then "chief engineer" of the defend.
ants, who did the work.
! Mr.. McNair says: ~ was chief en-.
gineer of the Danville, Hazleton and
| Wilkes Barre Railroad Company in
| October, 1870. In that month, by order
of S. p. Kase, Vice President and Su-
| perintaudant, | began an experimental
survey for the extension OF that rail.
| road b. Wilkes. Barre. The survey
commenced at the summit OF Scotch
Run valley, and followed the same TO
the junction of Black and NescoDeck
| creeks, and followed Nescopeck creek
downwards, crossing it near the Old
| Forge dam, and thence swung around
the point of the hill at Everett's mill,
| following the foot of the hill, crossing
the Lehigh and Susquehanna turnpike
near TErack'5 house, and thence along,
but well up on the side Of the hill.
Crossing the Big Wapwallopen creek,
we ran along the foot of Council Cup,
but did not get very near the river,
until we reached the Little WapWall-
open creek. From thence we followed
the river pretty closely to South
Wilkes Barre, where our survey ended.
The entire line iCdS only experimental,
| and in no wise Il location. We set no
centre stakes, or any other stakes for 10.
cation. our object lCGs merely TO get tie
| topography Of the country" &c.
In addition to this affidavit we have
before us that of William N. McCay,
who states that he was an engine
under Mr.. McNair in the months OF
October and November, 1870, and that
he ran "alevel in the experimental sur
vey of the country between Scotch Run
valley and Wilkes Barre. We ran two
branch experimental lines, besides the
main experimental line" lie further
says, he has read the affidavit of Mr..
McNair, and that the same Is correct in
regard to that survey.
Manifestly mere line running OF such
| sort cannot in any sense be recognized
as locating a railroad. 1t seems, indeed
| to have been done with no such pur-
pose in view. And even though the
defendant profled it; though they
spread it over elaborate maps, and
adopted it as the location of their road,
| it lacked at the very threshold every
| legitimate element calculated to give it
force; and especially so, as against
| rival company already upon the same
ground, with centre line actually run,
and stakes set, and other monuments
| erected to fix and to distinguish it.
Considering at this point, then, the
positive testimony of Mr.. .Coryell, Mr..
Turner, Thomas b. Blodgett and George
Pfouts, describing positive acts done by
them in connection with the location
OF 1864, pursuant to the charter OF
the plaintiffs, can we say that priority
of occupation over the route in contro-
versy has not been made out? Has not
clear case of right in this respect been
established on the part of the plaintiffs?
If this be 80; If the equity sought by
them has been shown, and Is free from
be dissolved. Admitting even that
doubts may have arisen out of the mat.
ters set up by the defendants In the
way of answer or defence, yet if the
PLAINTIFF right be clear, and their
equity be free from doubt under the
showing, the rule remains unchanged.
But il is further insisted on the part
of the defendants that the plaintiff
rights under their act of incorporation
of 1868, and the supplements thereto
have lapsed. How lapsed? Suppose it
be conceded that their character orig
inally amounted to no more than an
option, which, uneXecuted, is not pro
perty suppose further, that ii was not
|
tive grant for all time may not the
power which granted the option meas
ure at least the space during which 1t
shall be exclusive?
Here was an option certainly, granted
by the Legislature to the plaintiffs, To
construct Il railroad between the terntui
named in the bill, at any time during
the period of ten years next ensuing the
date of the grant. This time had not
} expired at the time of the alleged Me-
, Nair location in 1870; it had not oXpir
ed when the later location of lS72,now
sought to be enjoined, was continued I;
it has not expired yet.
Still considering the plaintiif' grant
but as an option, did they not by
promptly and diligently entering upon
its enjoyment, and by eXpending large
sums of money in the survey, location
and partial construction Of their road,
I raisethe grant to the dignity of property?
We say, in conclusion, that there Is
t nothing in the case indicating either AN
5 abandonment or IdpSitlg of the plain
!. titfs' rights. And further, though the
: plaintiffs may not have complied with
g existing laws relative to the right ol
n way over the lands of the Susquehanna
: Coal Company, still this would afford
J. no warrant, either for them, or theil
}. agent, Joseph +. Stickney, to erect OBJ
n structions on the line of the plaintiffs
road.
q The rule is discharged.
n GARRICK NJ HARDING,