The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-07-02
BATTLE OF GIANTS.

the case Of the Texas Pacific Railroad
Company as. the Southern Pacific Com
pany, Of New Mexico, wac commenced
before Judge Bristol on the oath ult On
the 26th day of May the judge had, on
an &c pGrte application, granted tenn
porary Injunction against the defendant,
restraining it from operating the road,
and appointed receiver to take posses
sion thereof. The road had been leased
to the Central Pacific, was being operated
by it. and as the Central Pacific Com
pany was not made party to the suit,
the injunction was imperative as to it.
When the receiver proceeded to take pos
session he could not fud anyone represent
ing the Southern Pacific of New Mexico,
OF whom to make his demands. The
receiver decided to treat the matter with
a sound conservative judgment, and did
not appear to be anxious to bring about
collision, more especially as the hearing
Of the case had been fixed for the oath.
he reported Informally to Judge Bris-
toll, who was satisfied to allow the matter
to rest until the hearing. On the oath
the case was opened. The reading of the
pleadings, exhibits and sffidavits occa-
pied from the Oath to the 18th, inclusive.
The Texas Pacific has made two amend
ments to the bill as originally filed. The
hrst charges the insolvency Of the South
ern Pacific, and the second amendment
charged conspiracy between the several
Pacific roads and the Central to defraud
the complainant, which proposed tot come
in and pay for the road in New Mexico
such sum as it should be found to be
worth. This amendment contained also
an offer to deposit 81 900, 900 in money or
bonds as security for such payment.
Each party introduced q certified COPY
of the map filed in the Office of the
secretary Of the interior, showing the
location of the road and the land grant
of the complainant. These maps differed
IN essential particulars, and Judge San
derson, for defendant, called attention to
the discrepancy, and also telegrsphed
to the secretary, asking an explanation.
The secretary answered that certain
red lines, and the explanatory words
along the same found on the copy pro-
duced by the Texas Pacific Railway, did
not exist on the original on file in his
office. 1t is claimed by defendants
counsel that the map filed with the secre-
tary does not comply with the act OF
Congress, under which complainant
claims that hitherto there has been
no valid location by the Texas Pacific
for any legal reservation in its favor.
The line Of road through Texas is not
laid down IN any OF the copies nor on the
original. After the reading Of the papers,
ex-senator Stewart opened for the deien-
dant in an able argument lasting four
hours. during which he made, among
others, the following points: First, that
title had never vested in the COM
.plainsnt, because it had failed to file q
map in the Office of the secretary of the
interior, as required by its charter, it ap-
pesring that the map, instead of being
a map from Marshall, Tex, to San
D lego, Cal, was only map Of theroute
from FL Psso to San Diego, being less
than half the distance; second. that the
action Of the secretary Of the interior in
Withdrawing the lands was nullity for
the reason that no sufficient map Of the
line of the road had been filed, as re-
quired by the complainsnts' charter;
third, that the building of the road was
condition precedent to the acquisition
Of any title BY the complainant, to build
roads through the granted land, and was
not sustained by the terms of its charter;
fifth, that the Southern Pacific Company
bad a right to build its road under and
by virtue of right of way granted under
the act OF Congress of March Srd, 1875,
it having complied with the conditions Of
that act; sixth, that the rights of the
Southern Pacific were secured because at
the time Of the passage OF the act OF
1875, the land claimed by complainant
was public land for the reason that 1t had
not secured the withdrawal by complying
with the conditions precedent contained
in compltinants' charter; seventh, that
independently of the act of 1875. the
Southern Pacific had right to acquire
right of way through the lands, under
and by virtue Of the tWenty-frst section
of complainants charter which provides
for other companies crossing the road OF
the complainant and gives them a right
of way, 200 feet wide; eighth, that the
Southern Pacific has right to condemn
the lands of the complainant, if has
any under and by virtue of Its charter
obtained from the Territory OF New
Mexico; ninth, and lastly, the COM
plainant has no remedy IN equity, con,
cedlng that its franchises and land
grants are still valid, for the reason that
it has stood by with full knowledge OF
tue constructor OF ueloIUdIt IOoui dAC
allowed it to be built and completed
without objection on its part. and by its
silence and acquiesence has virtually con-
sented to the construction Of the road, as
shown by the correspondence between
the officers of the two companies, agree
ing upon plan for a change OF business
whenever their roads should connect at
or near FL Paso. The learned counsel
cited numerous authorities 10 support Of
the foregoing propositions.
At the conclusion Of Senator Stewart's
argument, Judge Herman, solicitor for
complainant. commenced his opening.
and is still occupying the floor, most Of
his time being consumed in reading
authorities in support Of the proposition
that the complainant has exclusive
privileges, and aloha has the right to
build railroads along the thirty-second
parallel of north latitude and within
the eighty mile limit of the compliments
grant. Upon the conclusion of his srgu-