Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1879-10-24
A CELEBRATED CASE.
THE RAIL ROAD WAR IN THE COURTS.
",Nhen Greek Meets Greek Then Comes the
Tug of Wap-And When Tom Scott
Meets John Garrett You Can
Smell the Battle from Afar.

SION oil Sunury pieces VI SIOunu MlthiN
the limits OF this city, came up in the
County Court yesterday, Judge Boyd
on a motion made by the
counsel for the p, w. & Ky. Co. that
be appointed to condemn
for the use OF the p, w. & Ky. Co. the
property in question, now in the pos
session OF the b. & o. r. K. Co.
Some difficulty was experienced in
obtaining jury, the B. x o. company,
by its counsel, calling upon the Judge
to inquire OF the jury as to their fitness
to sit in the case. Several stockholders
of one company or the other were ex-
cused, and three OF the jurors drawn
were conscious OF some prejudice in the
matter, which would prevent their rem
dering an impartial decision. A test
was made of one juror, who was object
ed to by Mr.. Russell, of the counsel for
the Baltimore and Ohio Company, on
account of the fact that he was a citizen
and taxpayer of Ohio county, which
county is stakeholder in the p, W. q
XIV. road. The objection was overruled
by His Honor, and Mr.. Russell took ex-
ception to the ruling.
Finally the following jury was impan-
eled and sworn: r. NJ. Delaplain, X.
A. McCabe, +. Reister, Arthur Little,
Chris. Hess, ]. X. Bottsford. W. Il.
Simpson, Jacob Hull, j. 5. Rhodes, NJ
l.. OFT. Alex. Bone, John Mofatt.
Mr.. Lamb, of the counsel for the Bal
tlmore road, claimed the right for the
defendant OF opening and closing, al
leging that the defendant really had the
affirmative of the issue. Mr.. Hubbard,
of the opposition, rejoined that the
plaintiffhad the affirmative in several oil
the issues involved, and that therefore
the opening and closing plea belonged
by right TO them, which claim the Judge
sustained. Mr.. Lamb again excepted.
THE OPENING STATEMENT ,
was made by Mr.. Hubbard. He related
the history of the case. The p. w. &
XIV. desire to extend the line OF their
road southwark along the Ohio river
within the city limits, and have secured
permission of the city so to do. In order
to do this it is necessary to
cross two parcels of land belong
ing to the B. & o. K. X. Go:
The one of these Immediately south oil
the creek, he proposed TO show, was pur-
chased only for the purpose OF building
the abutment of the bridge over Wheel
ing creek. The other piece was bought
by the defendant from one Bushfield,
and it was desired by the plaintiff to use
but the eastern five feet OF this lot. lie
would show that one railroad had right
to take the property of another railroad
by condemnation, provided II was not
in actual and legitimate use by the other
road, and necessary for the transaction
of it's business. The b. q .. company
assert that the land in question is IN use,
and that it is not necessary for the busl-
ness of the p, w. & Ky. Company.
We assert and expect to show that not
until the p, w. & Ky. railroad com
menced operations for the extension OF
its track did the b. & o. road use, or in
any way occupy the land in dispute. lie
then referred in brief to the transac-
tons already past in the case.
Mr.. Lamb made the reply. The first
question for the jury, he said, is: Does
the necessity for the possession OF this
land by the p, w. & Ky. Company ex-
list? Is there any other practicable
route for them to take in making TINS
extensiOn2 We expect to show by tes-
timony that there is. We assert that
this land is in lawful and needful use by
the b. 4 o. Company, and has been
from 1853 to the present time. lie
would not assert, but he suspected that
the condemnation was desired Tor no
other purpose than to embarrass the OPP
erations OF the Baltimore Company,
THE LAW
the p, G. & st. l.. K. r.,
and the amendments changing the name
of the organization to the Pittsburgh,
Wheeling and Kentucky Railroad Com
PAW, were read by Mr.. Hearn, of the
counsel for that road, who also placed in
evidence the record of deed made on
December 8, 1852, by the City OF Wheel
ing TO the Baltimore and Ohio Company
for that piece of land Immediately south
of the creek, and also the deed made by
J. NJ. Bushfeld for the other land in
DISPUTE. said deed bearing date October
%, 1854. These were read to the jury
and filed with the other papers in the
case.
J. NJ. BECKER,
Chief Civil Engineer of the p, Z. K st.
L. and the p, w. & Ky. r. r. COmpa-
MES, was sworn on behalf of the plaintiff
His examination, direct, cross and re-
direct occupied the time of the court
until late in the afternoon, but was com
posed mainly OF comparatively unim-
portant details, descriptions OF plats, etc.
He laid out the extension to Benwood
last April. He testified that the
line as located passed over the
two tracts of land described
in the petition. This land was not in
use when the line was run. Witness
in company with Mr.. Chester Hubbard;
President of the p, w. x KY. road, had
had an interview with Mr.. keyser, Sec
ond Vice President of the B. x o. Co. in
regard to the right Of way over the land
referred to, but Mr.. Keyser had de-
clared that about all the favors the p,
w. x XIV. Co. would be able to get from
his company would be what the Courts
would give them. Witness described
the famous trestle south OF the mouth
of the creek, and said he could not con-
ceive of any use it could be put to. Did
not see how his company could do with
out this land in constructing the pro-
posed extension.
A recess for dinner was taken during
Mr.. Becker's cross examination, and he
resumed the stand at the opening OF the
AFTERNOON SESSION.
His cross-examination turned princi-
pally upon the proper location of the
north line OF Twentieth street. There is
a dispute as to whether this street is a
continuance between Main and Water
streets of that portion between Market
and Main, or whether it bear
to the southwest of Main street.
There is no connection between the
track OF the b. x .. road and the trestle
at the mouth of the creek. The B. x
o. men will attempt to show that the
reason of this is that city Surveyor
Peterson, in producing the north line OF
Twentieth street, made a mistake Of
some fifteen feet at the river bank. Had
the line been correctly produced 1t is
claimed that it would enable the trestle
10 be connected with the second B. x
o. track by curve with radius of $50
feet, the smallest curve, according to
Mr.. Becker's testimony, upon which
cars and engines can be conveniently