The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1881-04-04
AT LAST

y, Y. company II Lthbl0 70 COndemna.
lion for lhe Purposes Of the r, ". 4
ny. y-AbslFaeIS Of the OPlnlOn
or Iudg0 johnson DeliVeFed,LAat sat
uFdAy.
For the last two years the p, W. & KY
Railroad Company has been actively en-.
gagged in an effort to extend Its line Of road
from the foot OF Fourteenth street, In this
city, to q point at or near Benwood, In
Marshall county, butths legal distractions
have thus far successfully "resisted this
iterpoaed by the B. 4 o, company
march OF progress" During the summer
oils79 the "progressive" company initiated
proceedings by making thorough survey
OF the ground intervening between this
city and Benwood, and having Rscertained
the most practicable route began 10 pre-
pare for the extension. These Offensive
demonstrations on the part Of rival COM
pany put the B. & o. authorities on the
alert, and they ct once began to bestiE
themselves with the greatest activity,
Ground belonging to the B. 4 o, COM
pany, but not in use, was occupied,
tracks were run out on vacant lots and
whenever anything could be done to OBJ
struCt the building Of the road, 1t wSs
done, The P, W. & Kyu on the
other hand went vigorously to
work and one night in August,
70, a whole brigade DEMONSTRATION hands
arrived here, and guarded by the police
and city oiiCialP, laid down their tracks
on certain lots granted to the Company
BY the city, whose property they were,
the b. 4 o, Company in the meantime
offering such resistance as was compatible
with legal safety. For aday or two both
Companies eyed" each other closely and
guarded their respective premises with
The greatest vigilance, but the necessity
for this sort Of thing was obviAted by the
attorneys OF the B, Il o. Company who
asked for and obtained an injunction re.
straining the other corporation from tres
passing upon or interfering with the
property or grounds Of the first named
company. On the other hand the P, W,
4 KY, began condemnation proceeding In
the County Court Of Ohio county before
Judge George E, Boyd, the object Of
which was TO condemn certain parcels Of
ground belonging 10 the B. & 0. Company
but alleged by the "Pwiky" representa-
tives not to be essential to the proper
exercise OF the franchises OF that
company. For several days the
case was argued before Judge Boyd, wit.
nessea were examined for and against the
project, among whom were Col. Key
ser and Mr.. W. N. Boiling, for the B. 4
o., and the chief engineer Of the p, @, 4
st. l., Company. The condemnation, after
careful consideration on the part Of Judge
Boyd was allowed, upon which the case
was carried up to the Circuit Court upon
8 writ Of error by the B, i o. Company,
Judge Melvin, after an examination, aus.
tanned the decision Of the court below,
whereupon the Supreme Court Of Appeals
was rssorted to to settle the matter. The
case was argued before this court OF
Chsrlestown last August, and Saturday
last the decision was given.
The points upon which the B. 4 o. 90.
took the case to the Court Of Appeals
were numerous, but the principal ones
were; Frat, that the case should have
been removed 10 the U. s. Circuit Court
Tor the District Of West Virginia on the
petition OF the company; and secondly,
that the ground sought to be appropriated
by the +. W. 4 Ky. 90. was 10 use by the
B. 4 o. Co., and therefore not liable TO
condemnation, except by special act Of the
Legislature.
Judge johnson In delivering the opin-
ion OF the Court held that the case was
not removable 10 the Federal Court be.
cause, first: That the proceeding was the
exercise OF the States right OF eminent
domain, with which the United States
Government, o separate sovereignty,
through It's courts, except for condemnA.
ton for its own purposes, has nothing 10 do,
and has no Jurisdiction In such case; and
secondly, because the B. 4 o. r. r. Co. Ia a
domestic corporation Of the State Of West
Virginia and Is an inhabitant therein, and
therefore liable to be sued here and only
liable because II Ia an inhRbitant OF the
State, and therefore the Federal Court has
no Jurisdiction In the case, and the cause
could not therefore be removed into the
Federal Court.
This view Of the case Judge johnson
claims Ia fully sustained by the decision OF
the Supreme Courts Of the United States,
Of the State Of Virginia and Of West Yir
giniS. va g,.
On the other point he holds that the
property Of one railroad company not In
|
exercise the franchises Of the company,
may under the general railroad law OF the
State be condemned for the purposes OF
another railroad company. The opinion
further holdS that the county court erred
In permitting land to be takon that was
not necessary for the purposes Of the pc.
titioner, as private property cannot be
taken fol. any but public use and only as
much as is necessary to such use.
1t will be seen that the law In regard
TO the condemnation OF the land OF one
railroad company 10 most explicit, and In
the judgment OF the Court OF Appeals the
violation ofthis.statute by the P, w. & Ky.
Is the only weak point In the claim. for
condemnation, and this violation is likely
TO cause that company some trouble. II
appears that ct the time the description
Of the land requisite for tho PROV,
ress OF the extension was made
that o Triangular piece Of ground near
the mout h Of the creek was included, but
the B. 4 0. company demonstrated con.
Clutively, 90 did the witnesses for the
"Pwiky" that this triangle was not essen.
tiAl, lying as IL did beyond the pale OF tho
requirements Of the oPWiky." This fact
has caused a little hesitation on the part
Of the judges, as they cannot agree as to
the form Of the judgment TO bs entered,
and upon this Judgment hangs the ques.
ton OF costs. On all the other points
claimed by the "Pwlky" the Court IL clear
and Unanimous.
The Legislature enacted a law at its re.
cent session In regard 10 condemnation
proceedings Int handing Tia efTect the r
4 o. company was granted temporary
injunction by the United States Court al
parRersbprg a few days ago, by The terms
Of which tho T. W. 4 Ky road Is epjoined
from trespaseing Upon the lotl Ii question.
The question Of q perpetual Injunction
will be argued ID June. next.
Our reporter asked O Judge Of the SD.
prene Court last night how the injunc.
lion oil the United States Court could
affect the decision Of this court.