The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1872-11-15
COL. DEM. -. VOL. XXXVI.. NO. 49,

| far as the plaintiffs are concerned, bu
rather urged and insisted as constituting
such astate of law aud of fact as viii
justify the interposition of the stronl
arm of Equity to protect them In thu
enjoyment of clear chartered righ
upon which they were diligent TO en-
ter, and careful to distinguish, we arr
asked to continue the injunction here
tofore granted in the case, until fina
hearing upon bill, answer and evidence
In other words, we are asked to dis
charge the present pending rule.
The defendants, however, interpose o
most vigorous and persistent dissent to
the equity of this proposition. They
deny not only the present existence oi
any legal right in the plaintiffs to the
line of the road as embraced in the bill
but they claim to have established 8
complete controvertion of all the mat
ters, both of law and of fact, whereby
the enjoyment of any such right at this
this time, is entitled to the protection
which discharge of the present rule
would effect.
They further set up, as belonging tC
themselves, prior legislative grant
authorizing them to lay out and con.
struct railroad over the very ground
named in the plaintiffs bill. They claim
to have been upon, and to have occu.
pied the ground by an actual location of
their road over it long before the plain.
tiff5 took any steps under their alleged
grant, amounting to what in law is re
cognized as locating railroad.
Priority oflegislative grant, however
was not seriously urged in the argument.
ItNI hot oil rnth har
untenable, and could not have been sus.
tanned under any view of the case for,
though the grant under which the de
PENDANTS claim, may have been earlier
in date as statute, it was nevertheless
of the plaintiffs
On the 18th of April, 1859, an act OF
the General Assembly was passed in
cooperating 1.-THE Wilkes-B Barre and
Pittston Railroad Company" with
authority to construct railroad "along
and near the Susquehanna river, and
to be constructed as near to it as possi-
bic, on the East side Of the Susquehanna
river, from the Lackawanna and Blooms
burg railroad, above the borough of
Pittston, in Luzerne county, along said
Susquehanna river, to the town of Dam
y
and re-crOss the Susquehanna river at
any point or points, between the Nam
ticOke Dam and town of Danville." A
proviso was attached to one of the sec.
tions of the act, requiring" that the por-
ton Of the said railroad, from the
terminus above PittSton oShickshinny,
or to point on the East side of the
Susquehanna river, opposite to Shick-
shinny, shall be first built and COM
pleted, before any portion of the re-
mainder of said railroad shall be con.
structed or located"
This was a valid act of INCORPORATION (;
and under it the company might have
entered upon the location and cOnstruc-
ton of railroad from the terminus
above PittStOn to Il point on the East
side of the Susquehanna opposite Shick.
shiny.
The restriction continaed in the pro.
viso imposed upon them the necessity
of completing the road between these
termini, before they had authority even
to locate any other part oft.
No action, however, of any kind seems
to have been taken by the company
under this charter; even the enrolment
tax was not paid, and, hence, after the
expiration of one year from the date of
the act, it ceased to have any vitality
whatever.
1t became emphatcally dead letter;
it was denied place in the statute book,
Thus it continued until the 9th of Feb
ruary, 1867, when the Legislature, by a
supplement of that date, breathed into
it the power of resuscitation. The time
for the payment of the enrolment tax
was extended for one year then next.
Again, on the 10th of April of the
same year, the Legislature by another
supplement, stripped off the restriction
contained in the proviso before referred
to, and arrayed the corporation in a new
dress almost entirely. By that supple
ment, the effete act of incorporation OF
April 10th, 1859, was galvanized into
actual life again; and for the first time
stood forth living statute under the
name, style and title Of "The Danville,
Hazleton and Wilkes Barre Railroad
Company" Authority was given to the
corporation to commence the cOnStruc
ton Oftheir railroad al diy point on tht
line MereJ
This tat, ,,uase is singularly indefinite
still we must presume that the Legisla
ture intended to authorize the company
to begin the construction of their road
at any point on the Easterly side of the
Susquehanna River between the towr
of Sunbury and "The Lackawanna anC
Bloomsbury railroad above the borough
of PittSton."
BY a further supplement, approved
April IL, 1867, the company acquired
the right, inter ala, of making "latera
or branch railroads, not exceeding fl
teen miles in length )" and again, by
still further supplement, approved
March 10th, 1869, authority was givel
them to connect their said railroad a
Hazleton, or Janesville, with the lie
high Valley Railroad"
1t Will thus be seen, that after tn
supplement of April 10th, 1867, befOr
referred to, both the Wilkes. Barre an,
Philadelphia Railroad company, ant
the Danville, HaZleton and Wilkes
| Barre Railroad company had legislf
tive authority for locating railroa
between the termini mentioned in tn
bill. 1t follows, then, as matter {
course, that in this proceeding, prelim
mary in its character, the only que!
tion actually now involved, is one {
occupation, or priority Of location.
We have already determined wis
constitutes q location of railroad {
between rival companies seeking occl
pancy of the same ground, under sepa
ate legislative grants; and we hay
also reviewed the evidence adduced
support of the plaintiffs claimed prio
ity. We turn, therefore, to the ey
kdence submitted on the part of the d
PENDANTS, with view to ascertain sUh,
and hoio their location was made.
The affidavit of Simon z. Kase, Il
President of the Danville, HazletC
, and Wilkes. Barre Railroad Compan
} is before us. Mr.. Kase, after referriI
to the act incorporating the compan
: and the several supplements theret
l says, that in pursuance thereof, the d
l PENDANTS "surveyed, located, fixe
3 marked and determined route for