The Elk County advocate. [volume] (Ridgway, Pa.) 1868-1883, 1881-10-06
Judge Browns Decision.
The New York, Lake Erie anC
Western Coal and Railroad Com
pany

pdly
The pittsburgh and New York Rail
road Company, e. f.. Willard, j.
II. Hagerty.
In Elk County Common Pleas. No.
1, September Term 1881, In Equity,
Opinion and Order of the Court on
the Application for Preliminary
Injunction.
BY assent of counsel, the affidavits
entitled in the case of defendants
versus plaintiffs in No. 2, September
term, 1881, are to be considered as if
entitled IN this case. .
The plaintiff as reason for pre-
liminary injunction, alleges the sur
vey, location and adoption of the
route of II railroad from or near Alton,
| in M'Kean county, to or near Kersey,
in Elk county, and from thence to or
near Falls creek, on the Allegheny
Valley railroad; that such route be-
| tween Johusonburg and Ridgway Is
along the north and west side of the
Clarion river on the side Of hills so
precipitous that it is possible to con-
struct thereon but one railroad; that
defendant intends by force, &C., to
prevent the construction of plaintiffs
( road, and are taking steps to carry
such intention into effect, and that
collisions are likely to occur between
| the laborcrs and servants of the re-
| spective parties, provoking breaches Of
| the peace, &C.; that the defendants
! interference with and obstruction of
| plaintiffs rights will make the build
| ing of plaintiffs road impossible, and
do it irreparable injury.
On the argument, the only question
| presented was thc alleged right Of the
plaintiff as against the defendant, to
that portion of the route between
Johnsonburg aud Ridgway, on the
north and west sides of the Clarion
| river; and, as bearing upon this ques.
| tion, variety of propositions were
| discussed, embracing, among others, u
! denial of the corporate existence of the
| plaintiff, and, if existing, a denial of
the right to locate and build the roads,
as set forth in the plaintiffs bill, to-
gether with u denial of the asserted
right of the plaintiff to the route, as
claimed by il, between Johnsonburg
and Ridgway.
BY act of Assembly, approved April
8, 1870, Thomas l.. Kane and others,
and their associates, were constituted
a body corporate by the name of 1.-The
Wilcox and Howard Hill Improve
nent Company" with power to hold
land in fee simple, or by lease, in the
counties of M'Kean and Elk. and to
construct, equip and manage a rail
road or railroads leading from any of
their lands to the Philadelphia and
Erie railroad, or to the Allegheny
Valley railroad, or connecting any
two or more railroads which may he
constructed by them in either or both
lS,fs "a
the corporation all the powers and
privileges Of any and all general rail-
road laws of the Commonwealth; also,
the right to receive, in payment of
subscriptions to the stock, any lands
situate in the counties of M'Kean,
Cameron and Elk, along or in the
vicinity of the works they are author.
| lied to construct, and to purchase, re-
| ceive, hold, lease, and mortgage and
sell, all such lands as may be sold,
subscribed, donated or otherwise
| granted to them.
June 2S, 1881, the name of "The
| Wilcox and Howard Hill Improve
ment Company was changed to
1.-The New York. Lake Erie and
Western Coal and Railroad Company
by decree of the court of common
pleas of NJ Kean county.
Upon the evidence presented by the
parties, we come to the conclusion
that the plaintiff is an existing corpo-
ration, as claimed in the first para
graph of the bill. with the rights and
powers rs claimed in the second para
graph, and that it had and has the
right to locate ana construct the rail
road or railroads upon the route and
between the points as claimed in the
| I hi ~ rp,. tn "A tri,,
tiOn that it may not interfere with the
location or route previously surveyed.
| marked and adopted by any other cor
pOration authorized to locate and con
Struct railroad between the same
points, or inlermediate points, on the
same route. This brings us to the
question-had the plaintiff located the
line Of its road between JohnsOnhurg
| and Ridgway before the defendant To-
| Gated its road between the same points?
June ~, 1881, the defendant COM
pany was organized under the general
| railroad laws of the State. 1t appears
by the affidavit of e. r., Willard, the
engineer in charge, that, commence
ing on the I'd of July and ending the
9Th July, 1881, the route of defend
ants road was located, and between
JOhnsonburg and Ridgway was evi-
deuccd by continuous line of stakes,
and that all changes and revisions inn
pOrtant had then been made; that the
work OF clearing and grading on the
line was commenced on the I'd July,
and continued down TO the time of the
argument, excepting q few days, when
restrained by order of court.
\ prima facia case of right, clear of
! reasonable doubt, ought always to be
shown to justify an injunction before
a full and deliberate investigation H.
had. Does it appear beyond reason
| able doubt that the plaintiff located its
| railroad on the route now in dispute
before the defendant located its road?
The claim that it did is denied in
the at1idavits presented by defendant.
The atiidavits of plaintiff alice such
location as early as 1872, made by
The Wilcox and Howard Hill I'M
provenent Company" The affida-
| Wit of dUfUnJittuto dcuy such location.
and f. Z. Willard, under whose su-
pervision the surveys for the last
named company (or Thos. l.. Kane,
its president,) seem to have been made
in 1871 and 1872, by his affidavit
denies any survey or location then
| made on the north and west side of
the Clarion river between Johnson
burg and Ridgway.
With these contradictory affldavits
before us, we are not able TO say that
there is no reasonable doubt that
plaintiffs road was located upon the
route in dispute in 1872. On the CON
tr?ry, we must say we are left in