Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1879-10-28

petition Is IN ACTUAL use lOt talllOau Pui-
poses by the B. & D. road. We say, as
a matter of fact, this is not true. This
is the first issue.
Again they plead also in reference to
the triangular piece of land south OF the
mouth Of the creek, that II is IN actual
and legitimate use by them. We deny
the truth of this statement also. More
over, we file a replication setting up the
circumstances of their attempt 10 occu-
py this land, and showing the nature oil
their occupancy, alleging that 1t is not
in good faith, and therefore presents no
bar to these proceedings. Ii, now. you
find that these assertions OF ours are
true. and that the two lots purchased
from Bushfeld are not in use, and that
the occupation of the other land is not
in good faith, but is for the purpose of
preventing and obstructing the exten-
sion of the p, W. 4 Ky. railroad, you
must find for the plaintiff.
The evidence is regard to the Bush
field property is that at the date OF the
filing of this plea, the land was only Oc-
cupied by a little piece OF track, halt
covered over with dirt and debris, and
without ballast or connection with any
other track. So far as the evidence goes,
there was never a car passed over or Oc-
cupied a position upon this dlsJointed
track.
Concerning the motive OF the Occu-
pancy OF the other lands, some infOrma-
ton NAV be obtained by tracing the his
tory of the construction OF the treStle
now upon it. IL must be borne in mind
that in June, 1879, the proposed line OF
extension of the F., W. & ny. road was
surveyed and laid down. In July plat
of the route was adopted by the Council
of the city of Wheeling, and permission
given TO pass over the city property
where necessary. On Friday, August
Il, President Hubbard and Dlr. Becker
met Vice-Presidsnt Keyser, and dis
cussed the question of right OF way over
the lands of the b * o. Company. On
that occasion Mr.. Keyser did not seem
10 be willing TO allow the p, W. Il Ky.
Company the privilege they sought, and
Mr.. Hubbard remarked that he
supposed that what right OF
way could be gotten in the
courts was about all they might expect
of Mr.. Keyser's company, 10 which Mr..
Keyser assented. The idea plainly was
that if we could get across this land by
resort TO legal tribunals, we might do so,
but that the b & o. proposed to hinder
and prevent US from doing so If possible.
Mr.. John Bradshaw, a b. 4 o. road
master, testified on Saturday that he
was present at an interview between
Messrs. Keyser, Becker and Hubbard.
Mr.. Becker was explaining plat con-
tanning the proposed extension, when
he entered the room. Mr.. keyser
favored the opening 10 BenwoOd If an
equal privilege was extended TO the Is.
& o. Co. to the Top Mill. MIR. Becker
said IT was a fair proposition, and Mr..
Hubbard said that he would lay 1t be-
fore their Board OF Directors. But he
and others have also testified that Hub
bard said that no privileges except those
obtained at court could be expected
from the B. & o., and Mr.. keyser said
that was about the way matters stood.
Now. moments consideration will
show that Mr.. Bradshaw is mistaken in
his impression concerning Mr. Hub
bard's proposition to lay the matter be-
fore the board. Mr.. Hubbard's last re-
mark was an intimatiOn that the matter
would be contested in the courts, and
Mr. Keyser's reply accepted the situa-
ton; was it probable that they would
then contemplate such an exchange?
On the 10th of August, the day after
this interview, we find the Il. & .. en-
ploves in Centre Wheeling building
tracks and switches, it being their evil
dent intention 10 set up some kind of
occupation that would hold in law.
We learn this same pur-
pose from the fact that
thew had consulted lawyers as
TO what sort OF occupancy would be legal,
and prevent the p, W. Il Ky. company
from carrying out their purposes.
These facts taken with other ones OF
the same tenor testified TO, 90 lar to
show the theory on which the b. & o.
company acted. Their whole animus
is thoroughly and completely exposed.
Is il probable that a company with
acres OF land a few squares further
down, "aching to be occupied with
tracks" would construct So costly a
structure as the treStle they did con-
struct, merely TO secure standing room
for three cars, which it took them an
hour to get on the track, and would re-
quire about three hours to get of?
Mr. Barr in closing cited several au-
thorities in support OF the plaintiffs
claims, decisions in similar cases, or
cases involving similar points OF law, etc.
MIR. RUSSELL,
Of the counsel for the defense, said there
is one fundamental idea which is always
kept in sight in all free countries
namely, that a mans property is sacred
10 him. He can keep land rightiully IN
his posse CsSiOn as long as he wants to;
he can hold it at any price he wants'it;
he can refuse to sell it at all, and you
cannot compel him 10. But to this rule
there is one exception, which has been
brought prominently before you. But
it must be treated as an exception, and
clearly shown 10 be So, or else II cannot
govern in the place of the general rule.
Property may be taken by the govern
ment for public uses, upon Just cOmpen-
sation. The State can delegate this
power to corporations, but the corpora
tions must strictly observe all provisions
OF the statutes which delegate the power
10 them. The B. & o. railroad company
is a public corporation, and holds its
lands as a public corporation. Land
which il uses for its legitimate business
cannot be taken for the use of another
public corporation. IL is for the jury TO
decide whether these parcels OF land in
dispute are in use within the meaning
of the law. In regard to the lower parcel
OF land il is simply to be decided, is it
i'm use? for here the petitioners have not
raised the question OF good faith. In
the case OF the other piece OF ground,
the issue is, is il in use? and if so, Is
that use in good faith and for legitimate
railroad purposes? Ii the smallest part
of this tract is in actual use, bona .fde,
YOU must decide the issue in favor of
the b. 4 O. Co. There is no such thing
in law as dividing up an issue of this
kind.
This land has been coniessedly in use
upwards Of % years, for the tract de-
scribed bv them includes part of the
buttress OF the B. & o. bridge over the
creek. The p, W. 4 by. Co. set up
the claim in some of their testimony
that the construction of such a struc-
ture a. they propose erecting would
rather benefit than injure our bridge.
D.. 49,, .a,,'t Soa ~ in that lpbt III the