The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1879-10-10

last, by which that road obtained certain
privileges, the public has been on The qIi
rite for further Developments In the mat.
ter.
To prevent further alleged encroach.
ments on their property, or any interior.
ence from The other road with their prop:
erty Or employees the B. 4 20, Company
applied to Judge Melvin for injunCtious
restraining the r., W. & K. from further
proceeding In the matter, but subsequent.
ly removed the cases TO the Circuit Court
Of the United States, and asked leave to
withdraw their applications from Judge
Melvin's court, which, after a stubborn
resistance on,the part Of tho p, W. ( X,
was granted by the Judge for reasons al.
ready set forth Ia this paper, In the opin.
ion 81 His Honor
At the same time these proceedings
were instituted by the Baltimore aud
Ohio Railroad, the Pittsburgh, Wheeling
aud Kentucky Railroad Company, BY
their attorney, asked In the County Court
Of this county for the condemnation OF
certain lands 0wned by the Baltimore and
Ohio Railroad Company, Caroline Wilson
and John Handlan's estate, through
which they proposed passing TO Benwood
with their extension. OF course the Bal
timore and Ohio Railroad Company re.
sisted this application, and moved hrst to
dismiss the application from this court
and send 1t 10 the United States Circuit
Court. This motion was argued at great
length for, by O. BoggeSs and H. N. Rus.
sell, and against, by W. 7. Hubbard and
W, H. r. Hearne, and was finally over
ruled by Judge Boyd. Although the
Baltimore and Ohio Railroad Com.
pany's attorneys claim that the
case was virtually in the United
States Court, when the petition aud
bond were filed, as the rulings heretofore
on this question in this Court warrant this
assertion. Next, the constitudonality Of
certain statutes Of West Virginia in re.
gard to similar cases, was raised by the
b. 4 o. attorneys, and the Judge decided
them constitutional, and finally the ques.
ton was raised as a defense, that the land
which the p, W. & Ky. asked to be con.
demned was purchased for railroad pur.
poses, and had never been in use ior any.
thing else. They admitted the right Of
condemnation Of the lands OF o CORPORA
ton where they were not used for the
sole purposes OF that corporation, but de.
MED the right to condemn lands that had
always been used, and had been p1rchas.
ed for that specific purpose.
This latter claim the Judge has had un-
der advisement for several days, and will
deliver his opinion on 1t In the morning.
The land that the "Pewiky" claims to
be subject to condemnation lies on the
south bank OF the mouth OF Wheeling
creek, and Is bounded as followsi On the
the south by the north line OF Twentieth
street extended west OF Water street; on
the east by the west line OF Water street;
on the north by Wheeling creek, and on
the west by the Ohio river, and Is piece
Of land purchased by the B & o. Compa.
ny in 1852 for the purpose Of building the
5outh abutment Of their passenger depot,
by which the greater part Of it was util-
lied. The western part OF tits not in use,
and this portion Is what the opposing com.
pany wants to condemn for their pur-
poses. The other property Is described
below.
No further obstacles or distractions are
presented to the extension until the lot
upon which the Nail City Boat House Is
situated, except where the F., W. k Ky,
laid their track across the spur switch near
rwenty.second street in August this year.
This switch lies upon city property, and
having been unused by the B. & 0. for
several years, and good portion OF 1t
covered by dirt dumped upon 1t by citi-
zens and the city. On the south side OF
Alley 10 west Of Water street, the B. & o.
Company owns two parcels OF land, ag-
| UFnuaktn0 nhork 100 faok Sx.t ,nsdkI UlSn
east five feet Of these lots the P, W. ( KY.
Co., is seeking to condemn for the propos-
ed extension OF their road 10 Benwood,
and In turtherance Of their claim for con-
domination plead that those lots are not at
present occupied by any track or are not
IN use by the opposing company, the
Nail City Boat House only occupying the
eastern end OF one OF them, and the B. 4
y. Company refusing to grant the right Of
way when the effort was made, the r, w.
4 Ky. Co. applied to the County Court
Tor condemnation OF lands over which
they desired to pass belonging to the B. &
o. Company.
The question then arose in this court,
under which act OF the Legislature pro.
ceedings should be taken: Under the act
OF 1875, which Is q general law in relation
to condemnation proceedings, or whether
1t should DO under Chapter IS, Of acts Of
1928, which is a general railroad law.
The Court decided that the act Of 1928
should govern the proceedings. The B. &
.. K. K. Go. rendered pleas denying the
right to condemn their lands, because the
lands were owned by a public corporation,
and under the present legislation on the
subject could not be condemned. The
counsel Tor the P. W. 4 K. objected 10 the
filing OF these pleas, and the questions
arising were argued and the matter Is now
In the hands Of the Court, and the Court
has promised decision In the matter on
Saturday morning.
Immediately south OF the Belmont Mill
property on the river bank is a frontage OF
about Jour hundred feet, owned by Mrs.
Caroline NJ. Wilson, and south OF this is
another river frontage OF about seven hun
dred feet, owned by A. B. Caldwell, South
OF Caldwell's land John Handlau owns
the river frontage OF two lots, and below
LAGRANGE, HandIan also owns the frontage
Of several lots. Through these lots the p.
W. 4 Ky: company first sought the right
Of way by purchase, and not succeed.
Ing applied for the condemnation of sui.
ticient amount for It's purposes, under
the laws regulating such proceedings. The
right OF condemnation was resisted by A.
B. Caldwell and Gov. Jacobs for Caldwell
and Mrs. Wilson, and by A. J. Clarke for
the Handlan estate, and argued at great
length by counsel on either side, last week
and part OF this. In these cases commits
sioners have been appointed To assess the
damages inurlng to the lands by said right
Of way, through them, and also what dam
ages will result TO the remaining portion
G y required Tor thepurposes Of the P. W.
q NY. company. This latter does not ap-
ply to the B. & o. companies lands, as no
commissioners have been appointed for
The commissioners in the HandIan cases
will meet on Monday next 10 ascertain
and assess the damages in those cases.
WEDDNa.-The marriage Of Mr.. Thomas
Clarkson and Miss Sallie Day was cele-