Evening star. [volume] (Washington, D.C.) 1854-1972, 1873-12-03
LOCAL NEWS.
THE II. d p. RAILROAD CASE.
Important Decision OF Judge Smell.

the case of the United States sgt. the Baltimore
and Potomac railroad company, charged with
maintaining a nuisance by distractions on
| Maryland avenue, consisting of depot, cattle
| pens and derrick, and the condition and loca
| ton OF its tracks.
| He cites the act of Congress approved March
I'd, 1868, giving permission TO the Alexandra
| and Washington railway company to extend
| their road from the south side of the Potomsc
| to the depot of the Baltimore and Ohio railroad
through this avenue; also, the ordinances OF
| the Corporation of Washington consenting e.
! the use of steam power in drawing cars, and
cites the section requiring the company 10 erect
| permanent and cOmmodious station house,
| freight and passenger depots on said avenue.
| between 9TH and 10th streets; cites the act o,
the General Assembly of Maryland MAY 9th,
1883, allowing the extension the road into the
| District, and the company having satisfied Con
gross of the Importance of the proposed meas
| ure an act was passed by that body on the 18th
OF February, 1867, allowing the extension of the
| railway into the District, and conferred upon
| the company all the powers vested in them by
virtue OF their original charter.
The preamble TO this act of Congress is quoted
by the judge, and which he states shows clearly
what the understanding of that body was at the
time: The preamble says, "the SAID Baltimore
and Potomac railroad company are hereby au-
| thoTiZed to exercise the same powers, rights
and privileges, and shall be subject to the same
restriction in the extension and construction OF
the said lateral railroad into and within the
District as they may exercise or are subject to
under and by intent OF their said charter, OF
| act of incorporation in the extension and con-
struction of any railroad within the state OF
Maryland, and shall be entitled to the same
rights, compensation, and benefits and immu-
mites in the of the said road and in regard
thereto as are provided in their charter; except
the night to construct any lateral road or roads
within the District, from the said lateral branch
OF road hereby authorized; 1t being expressly
understood that the said b. & p. X. K. company
shall have power only TO construct from the
Baltimore and Potomac railroad one lateral
road within the city and county of Washing.
ton" 1t is not affirmed that the Baltimore and
Potomac company, under the act have the
FHrhf fn Etrn las.
this District, but the legal effect of the excep-
ton in section one of the act OF Congress is TO
confirm all otter powers possessed by the com
pany, and not elsewhere denied In the act OF
Congress, by virtue of the act of incorporation
granted bv the assembly of Maryland. TO hold
otherwise would be to violate all the Well-es-
tablshed rules of Interpretation. So plainly
does the purpose of Congress appear in the pre-
amble, and so well known are the rules of CON
stTuctiOn applicable to the case that il is quite
supertuous to cite authorities upon the question.
we assume, therefore, as incapable of serious
denial, that all other privileges granted this
company by their original charter are possessed
| to the same extent in the District of Columbia
as IN the state of Maryland subject only to this
special exception and such general restriction
as is embraced in other sections of the act, but
| in no way referring to depots, station-h houses
or such works and constructions at such points
as mayoe necessary for the convenience OF the
public and the efficient working of the road
| Section limits the company to two years in
commencing the construction of the road and
four years for the laying of at least one set OF
tracks, otherwise the rights and privileges CON
ferred shall cease and terminate. This was to
stimulate and secure its early completion.
double track at some future day might be
desirable, but in this act was not required TO
| preserve the corporate rights of the company
Il he phrase lat least one track" so far from
being prohibition, admits the possibility OF
more tracks than one. The words track and
line, as applied to railroads cannot be consid-
cred synonymous, The act of February ; was
| subsequently extended by several supplement
tary acts. Prior to the commencement of the
as lessee, to the Washington and Alexandria
Railroad company, and the 18th section is
quoted, which is supposed to be particularly
material in determining the question involved
1t says 1.-the road, when completed, not to be
more than sixty six feet wide, except a. OF near
| its depots or stations, when the width may be
made greater, with as many tracks as the pres-
dent and directors may deem necessary,
and may make and construct all works what
| ever which may be necessary and eXpedent in
OTder TO the proper completion and maintain
ance of the road" Although not authorizing
| the building of more than one line of railroad
| 1t most clearly authorizes the laying of ga
many tracks" as 'may be necessary at its de-
pots for the accommodation OF the road within
the discretion of its officers, and subject to no
| other limitation whatever. Upon the rule of
construction applicable, one authority is cited
| the case OF the Enfield Toll Bridge Co. agt. the
| Hartford and New Haven Railroad Co. Here
| the courts held that when the charter give.
TO the railroad company all privileges which are
| or may be necessary to carry into effect the
| purposes and objects of its charter it is the
duty of the court to give the provisions of the
charter such construction as will give them fun
| eject; and that il WIS the purpose of Congress
| TO give this company the fullest extent of the
| benefits OF the Maryland charter, with the ex-
| ceptlon specified, is evident, and equally SO that
the court should give full effect TO this purpose
| If the structures described in this information
| are within the limits of the public streets, aud
| constitute legal distractions upon a public
| Highway then, iC placed there without authority
| or continued there after notice of removal,
| such construction and continuance would rem
der these defendants responsible and liable to
! this proceeding. (Authorlties are here quoted
So far, the conclusion is that by virtue of the
| several acts of Congress and the ordinances OF
the corporation OF Washington, and the lease of
| the Alexandria and Washington railroad COM
| paDy, the defendants company has at least
| prima tacia legal status on Maryland
avenue as to portion of the alleged Obstruc-
tons, and an undoubted legal status as to the
| main track of its road. As to the number of
| tracks near the depot, this has resulted from
the increasing business of the road, making
| such accommodations necessary. As to the
| complaint that one Of these tracks
has been -, placed within about thirty
making it impossible to travel, the Judge said it
| had been holden that If a railroad company is
authorized to occupy the streets of a city, it
| possesses as necessary incident the power to
| make turnout within the streets to communi-
| cate with the depot on the street. Numerous
authorities are cited in support of this position.)
1t follows necessarily that the number of sidings
| or branches laid to meet the natural and in
| creasing demands of the business will not con-
stitute them nuisance, but is right
| possessed by the company. The depot
| complained of was erected in 1864 by
| the Washington and Alexandria company.
II is not alleged that it is made nuisance from
its condition in any respect, but simply from its
| location on the avenue. The cattle pen is on
the same side of the street, adjacent to the de-
| pot, and on line with it, and is not alleged to
| be a nuisance because OF its being kept in
| filthy condition or dangerous to the public
| health. The derrick is likewise on the same
| side of the street, near the cattle pen, and one
of the sidings of the road, and is employed in
| facilitating the heavy business of the road
| Both cattle pen and derrick were erected by
| the same company, and no sidewalk is shown
to have existed where they are situated. 1t did
| not appear in evidence that the defendant COM
| pany had been notified at any time prior to the
| commencement of this prosecution to remove
| and abate any of the nuisances specified. As to
| those erected by others than the defendants,
| and to which they have succeeded merely as
lessees, IL would seem that notice to remove is
necessary in order to create criminal liability.
(Other authorities are here cited In support OF
this doctrine.) But the character of the act of
defendants in causing or continuing. in viola