Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1883-10-04

District of Memphis, under It's charter,
has the right to permit and regulate the
laying Of railroad tracks of iron, and the
passage of railroad cars through the dis
trict.
THE ARGUMENTS OF THE DEFENSE.
In pursuance of this delegated power it
| has granted, SO far as it could do so, the
right of way of Tennessee street to the de-
fendant, and has given it permission to
construct a railroad track OF iron alongt the
center OF said street. The charter of the
defendant gives it the right to build a rail-
road from the line between Tennessee and
Mississippi from some point west of the
Mississippi n Tennessee railroad to
Memphis, Tenn, rom thence through the
county of Shelby to the north line OF
Obion county, while the code, 11l9, gives
it the authority and right to connect with
the Chesapeake and Ohio railroad % Bax-
ter, sec 241). 1t is claimed by the defend
ant that these statutory provisions give it
the power TO lay down and operate a rail-
road over Tennessee street without COM
pensation 10 abutting lot-owners, either for
the appropriation of the track or for dam
ages to abutting lots.
THE PLAINTIFFS ARGUMENT
On the other hand, the complainants IN
| sist-
Frt.-That neither the ',,r,,. e tho
defendant nor T.x,ng.D District, nor the
2'uV =. inc State, authorize the Taxing
E-.suict to grant a railway company the
right to construct a road over a public
street, nor give the defendant the power
to do so either with or without compensa-
ton.
iSecond.-That if such power exists that
it only exists Upon condition that the de-
PENDANT shall pay the abutting lot-owners
such damages as they may sustain for in
jury TO their abutting lots equal to their
full value, and that the injunction should
stand until the same is paid, and also pay
them additional damages for the Use of the
street.
Third.-That compensation must pre-
/. cede the taking or appropriating the street
for railroad purposes.
DECISIONS IN oTHER CASES.
It's clear to my mind that the first
proposition is untcnable. In the case OF
the Tennessee and Alabama Railroad Com
pany IS. Adams, the Court said in an able
opinion, delivered by Judge Wright, that
the words from a own or city used in a
charter for work or improvements like
this, it has been held must be taken ex-
clusively," and hat in such cases the rail-
road company had a right to pass through
the city. 1t further says that "the power
to come within the city of Nashville car
ries with it by implication the power, if
need be, to locate upon a street and alley
OF the city, 50 the power to enter the city
of necessity gives it the right to locate the
road somewhere, and if need be upon a
street or alley. . . Where the city
is delegated the power to permit and reg
ulate the laying OF railroad tracks, and has
decided that Tennessee street is a proper
and suitable place to locate, and granted
the defendant the power to locate on said
street, and as the bill fails to show any
thing to the contrary, the presumption is
that the location is q good and necessary
one.
NOT \ TRESPASSER.
The defendant is not a trespasser, but
entered upon the street both upon the
, permit OF the city and its power under its
charter. Adiudlcations Of sister
States must he pushed aside when at vari-
ance with the settled adjudications of our
" State. > Plaintiffs NAV recover
by proper action, damages fora certiin class
of injuries which they may anetain as
;abutting lnt-owners, but according to my
Wow oi the law on This case it is needless
Tor me to determine what injuries are
a~ctionable.
NOT ENTITI ED t AN INJUNCTION
I hold that compliments are in no event
entitled to q restraining writ to prevent
NV ~ - AlAN lIIO IllNlll Lltl dI
paid for damages. 1t is not damages grow
ing out OF the taking of the property itself.
1t is not about to commit a tres.
pass, for it has the power to occupy the
street, and it is a lawful occupation, while
The damages may be consequential.
I Neither is it about to commit q
} nuisance. The abutting
lot-ownefs are left to their conclusions.
As to the claims that defendants own tc
the middle nf tho Strnat ON aitLnr ei1a
t that on this account they are entitled to
], additional damages, Judge Mcdowell
, says: 81 nave reached the conclusion
that in all cases where an individual has
an ultimate interest in the fee of the street
that he is
ENTITLED TO RECovER DAMAGES
under the charter of the defendant and
the laws OF the State. . p = 3 If the
parties injured can be secured in their
rights such improvements should not be
stopped unless there is some strong and
controlling reason for so doing, or SOME
law which commands it to be done. = s
9 The compliments have neither the
possession nor the right of possession, OF
control OF the street and derive no present
benefit therefrom except as q street, and
that right is not taken away by the oc-
cupation of the railroad, but may and
doubtless will become
SOMEWHAT IMPAIRED
by such occupation. : 8 8 do not see
any necessity for the interference of this
Court at this time, as no serious injury
can result to Compliments by leaving
them to their remedy at law. | made a
like ruling at the last term of this court,
and Judge E. s. Hammond recently de
MED an injunction upon the same facts.
n injunction will be dissolved. but the
case retained in court until the damages
nrn nScnSSnl nnH nail