Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1879-01-02
OPINION OF THE COURT, BY FREEMAN,
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out the work authorized.
OPINION OF THE COURT, BY FREEMAN,
JUDGE.
This is an Indictment for nuisance.
containing several counts, only one of
which need be noticed, that is, the
first, as the jury acquitted defendants
on the other counts.
This count is for obstructing Cedar
street, by the erection of a %trestle
across the same for the passage of
trains from the Louisville depot, on
College street, to the depot of the
Nashville, Chattanooga, and st. Louis
road, at the end of Church street.
His honor, the criminal Judge.
charged the jury, that by the char
ters Of the roads, they we're not au-
thorized to build this connection.
We need not, at present, examine
this question. He then proceeded to
eonstrue the Code, section 1119. and
charged the jury, that the companies
would have the right to connect their
roads by rail, under this section, so
that they could pass trains from one to
the other, provided they made such
connection on their own ground. and
provided they did not obstruct. cross.
or interfere with the rights of the
public, in connecting or uniting said
roads, by running over or across an
clent public streets, or highways. He
then tells the jury they must convict,
if the trestle was made over such
street or highway, and if thereby rem
dered less safe and convenient to
travellers on the street or highway
than before.
The plain purport of the charge is,
that the parties had no right. under
the code, to cross the highway with
their track, in order to make the con-
nection.
The question on which the case
must turn here is, was this a correct
statement Of the law for under it.
the jury we're bound to find the YER
diet they have gwen.
The section 1l16 referred to is as
All the railroads of the
State have power to construct their
roads so as to cross each other, if nee
cssary, by the main trunk or branches.
or to unite with each other, as with
branches"
Sections 111S and 1120. throw light
on the general policy embodied in the
act of 1852, from which these three
sections are taken. The first section
IS THE gauge of all the roads in
the State, except those connecting
with railroads of other States, of diff
ferent gauge, is required to be five
feet" The other section provides
that-Eyery railroad company, when
required, shall receive on its roads and
branches, the full loaded freight cars
of all other companies, transport them
to their destination, and return them.
without charging for the ~transporta-
ton Of the goods, wares and merchan-
disc and produce therein, a greater
rate of freight han they charge for
similar transportation in their own
cars, The plain, unmistakable pur.
port of this is, that the roads were to
be one gauge, in order that they
might form a homogeneous system.
the cars of every road being ADAPTED
in gauge to the track of every other
road. Then the provision that they
might unite with each other is but "a
carry out this idea; for it would be
useless to require them to be of the
same gauge if they were not to be con
nected. Without connection. the one
with the other, they might all have
been Of different gauge, so far as fur
nishing facilities for passing cars from
one to the other was concerned. They
could only be thus passed BY e Of
a connecting line of track for the pur-
pose. The last provision was intended
to regulate the freights to be charged
on cars thus passed from one road to
the other, and compel the roads Gre
ated by this act or expected to grow
out Of it, to act literally and justly in
this manner, so as to encourage such
connections as were contemplated. and
thus give our people the larger rail
fOad tacllities-at least expense.
In addition to this the State was in
terested in increasing the trade and
travel on these roads, having by this
act provided for a large advance Of the
State credit for the benefit of the roads
contemplated.
1t needed no great foresight To see
that if the freight, say at Nashville,
destined to pass South, had to break
bulk, and be carried in draws and
wagons from one to the other. connect
ing lines in adjoining States. where
such state of things did not exist.
would very soon have all such freight
and reap its profits.
These considerations make it eyi-
dent that the legislature intended and
empowered th5se roads, or any future
roads, to unite bybuilding tracks from
one to the other for the passage of
their loaded cars.
This power being conferred on cor
porations, which had built, or wero
empowered to construct railroads, and
had already the power in so doing, to
exercise the right of eminent domain.
and to purchase land for the purnoses