The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1879-10-28

the erection OF the tresue by the B. 4 o.
from Its main line 10 the river, 1874 feet
long. The next was Of the same date, al.
yising the company OF my coming on, and
the advice OF Mr.. Barr 10 take possession
OF .Twenty.third street. Another one
from Mr.. Becker, advising Mr.. Belleville
OF his intention TO be In Wheeling that
night with men and material for the pur.
pose Of occupying the disputed ground.
Other correspondence ensuetl between
MeSsFs. BelleVille and Becker, touching
the preliminary arrangements made BY
them for the accomplishment OF their
work on the night Of August, the 2lst,
This concluded the testimony on both
sides, aud, after few minutes recess, at
9:4O, Mr.. Barr began his argument 10
favor Of condemnation on the part
Of the PittsburHh, Wheeling and
Kentucky Railroad Company. He
desired 10 call attention to the
nature Of the issues to be tried. The tirst
question presented Is: The Baltimore and
Ohio Railroad Company has pleaded that
this portion Of ground, bought from ]. NJ.
Bushield in 1854, Is in actual use and was
at the time Of the ilfng OF this plea. This
lie not true. The Baltimore and Ohio Rail.
road Company has also pleaded that the
triangular piece OF ground at the mouth
Of the creek was In actual use at the time
We tiled o petition In condemnation. This
is also not true, as We have shown, and
they have presented no sufficient bar 10
these proceedings. II you find that the
Bnshheld property was not in actual use,
and their action was TO impede our pro.
gress, you will OF course find ioru You
have heard from the mouths OF many wit
nesses the situation OF affairs on the Bush.
field property for years before, aud the
fact that there was nothing but an unoc$
cupied switch on It. They are n0t
confessedly making any use Of this eatt-
ern five feet that we want. Is that uJe?
The motives Of the Baltimore and Ohio
Railroad Company In their action IRE.
gard to these five feet are apparent A
disjointed track was laid down. NJ car
has ever occupied or stood OH tl,V and
hence 1t has no USE ,uor Is notin ustin the
operations Of the Baltimore and Qtto Bail.
road Company.
In regard to the famous trestle. look at
their object in its construction. The pro.
jected line OF tho T., W. 4 Ky. was laid
down in June, 1870. The Council Of
Wheeling subsequently adopted this line
and gave us the privilege Of passing over
city property, on the 29th day Of July.
You also remember the Interview be.
tween Mr.. Hubbard for us and Mr.. Key.
sey on August 10Th, when the right OF way
was discussed, and the unsatisfactory re-.
suit Of that interview. This was an omen
declaration OF war. Mr.. Keyser in effect
said, "you will go II the courts allow It."
The testimony Of Mr.. Bradshaw as to that
interview is not accurate, which fact 1
think is patent to all OF you. The tele.
grams show that the B. & O. had as early
as August the 10th the intention to OBJ
struct our track'buildtng to Benwood.
BY Mr.. Boiling We showed the inten-
ton OF that company was 10 interpose
whatever distractions they could to this
building, and that their plans in this direc.
ton were discussed by the authorities ut
Baltimore, before anything was done at
this city.
By Mr.. Bradshaw the further.intentions
OF that company aud the immediate action
necessary in the matter by that com.
pany in order 10 Illustrate our plans.
BY Captain Devries we have shown
the progress OF the work done by this com.
pany, and the subsequent stoppage by the
city authorities OF that work, and the
necessity of the presence of Boiling and
Boggess on the grounds. The whole ten
dency OF this evidence is to show the In.
tentjop Of the B. & @. to interfere with tho
construction Of the F. W. & K. Railroad
Tor twenty.seyen years this property has
laid in disuse and waste, and their need OF
it was never discovered until the line OF
the ?. w. d X. extension was
ascertained by them. At time OF
financial depression and stagnation in bust.
ness they discovered this important fact.
They have other resources, aCresoi ground
near their shops that arc available, and IN
spite of all these facts, they build frail
structure, liable to destruction at the first
rise in the creek or river. Does this even
look plausible? The gentleman then re.
viewed the evidence and the actions OF
the j. 4 0. in the matter from the time
the company aseertqined the intention of
the p, W. 4 KY. to extend to Benwood,
and In support OF the position taken by
the latter company, read from Goth ILL
nos reports, tho rulings in the cases Of the
Peoria railroads, and authorities on en-
minent domain-all such bearing directly
on the condemnation OF railroad property
in or not in use by another railroad com
pany.
Mr.. Russell, in behalf OF the B. L O.,
then began the following argument:
1.-THE fundamental idea kept in sight in
free countries is that mans property is
sacred to him, and that he can keep it un-
til bis creditors take it from him. 1t can
not, unless be agrees To 1t, 10 taken from
him. There Is nothing In the law that
says It can. This is, ! say, fundamental
principle Of property and obtains every.
where. There is, however, one excep-
ton; that the State Government, the SUI.
pTene power, has tho right to take what
ever property Is necessary for public pro-
gress on making Just compensation. The
State can delegate to corporations the
right that belongs to the State TO take
private property for public purposes, and
does delegate it to such corporations as
the B. & 0. and P, W. &Ky. But it
must conform entirely to all the pro.
visos and requirements In the matter.
The State in this instance gave the right to
both companies. This land Is held to
public use and this being theQuestion, you
must decide whether the land claimed hy
the B. & 0. Is in public use or not, and as
to the two pieces Of land in controversy,
independently. II you think that the r,
W. 4 Ky, should have the Bushfield
property say 80, and the samein regard to
the creek piece. The only question for
you to decide is "is the Bushfield property
In actual use by the B. & O. for railroad
purposes, not ia It in BONA fde use" Land
must not betn actual uso to be in use, that
is the legitimate use OF a railroad company.
a buttress Of bridge surely occupies that
land. The land il occupied by the p, W.
4 Ky. may be said 10 be. not In use, yet It
is; what was the intention In laying It
down. Why most certainly TO use II.
We intended in laying down the switch in
question to connect our main track with
Ii, and this was the object and design in
laying down the track on the Bus6feld
property.
As 70 The land south Of the creek, Let.