Telegram-herald., 1888-06-12
ALL KNOCKED OUT
Judge uenssemsry Readers . Dss1sass -
NE k>st-s< szress Railway ons&
Dsk IL Dess ke< Doen1o
Jssk ths 1aa&


YssssrdAy uorDiAs Judss Ncstsonsry
rendsrsd dseislss IN shs E~s< strseE Re-
formed Church esse. besides fining the CON-
pany 81 for running . steam sagiae on Ne
morial Day Judge hontgousry's opinion
reads - follows
This bill Is 6lsd 10 restrain the de6snd-
eat from maiBtaininx . railway In Eass-sL
and from ranning cars propelled by steam
powsr over the road
The same qusstions are presented -
uero in volvsd in the cAsD Of Fisher " The
same dsiendnnt, In which an injunction
vas recently refused. and also a. sddltionL
question not presented In that cas-. va:
Whether the defendant can lawfully oc-
cupy this street for the purpose contain
plated without the consent Of The author
tiles Of the city.
The bill Of complaint sets out that East
81 runs north and south and that the west
half Of said street lies within the city Of
Grand Rapids and that ssld city has Al
equal interest in said street with said town
ship; that said city has al no time granted
said defendant permission 10 lay . Trail
and cross- tie railroad in said East-st-. or 10
run trains Of cars or cars propelled by
steam powsr, and that the defendant has no
right 70 make use of said street ia any OF
said ways without permission from said
city.
"Ihe answer admits that the west half of
the street lies within the city OF Grand
Rapids and ihs. said city has an equal in
iertst in said street with said township. but
denies the allegation that II has no right 70
make use of the street in the manner con-
iemplated without the permission OF the
city.
The answer also alleges that the city has
given permission. but as il is evident that
the authority given by the caty. if indeed it
has not been lawfully revoked. was not fol-
lowed it becomes immaterisl to the ques-
ton, and is Is clear that the question in
volved Is whether the easterly portion Of
the street can, upon the authority granted
| by the township board be used ss c0nten-
plated without the consent of the city.
1t occurs TO me that il must be at least
questionable whether the ordinance under
which the portion Of the defendants line
| between Weslthy-ave. and Sherwsn-st. is
being constructed is authority for an sddi-
rional road wholly on the easterly side Of
| the street.
The ordinance Of December 13. 1880. re-
| cites that leave han been granted in 1875 TO
| construct street railway which had been
constructed, and reciting also that the Reed s
Lake company had acquiaed all the rights
| incurred TO the line OF road. Therefore the
| township board advise that consent be
| given to the Reeds Lake company and its
| assigns, exclusively to construct, maintain.
| use and operate a street railway in and
along Easiest. from Wealthy-ave. south to
| Sherrnan-st, . with all necessary
and convenient main track, tracks for turn
| outs, side tracks, turn tables and switches,
| and to operate thereon railway cars,
| coaches, carriages, sleighs, or other vehicle,
Il hu srtfu al ar N m
| 1t appears that under the authority oil
| this ordinance and of an ordinance of the
city, as we'll, the company and its predeces-
| sors occupied the center of the street with
/ its track, using horse cars exclusively until
| the present season. and made no attempt to
| construct additional track or to regrade the
| street.
| BY so doing the company has apparently
| placed q practical construction upon this
| ordinance which seems consonant with Its
| terms, and has construed ii as an ordinance
| defining its rights in the railroad already
| constructed and confirming its franchises as
| well as giving the right $50 far as lay in the
power OF the township without the concur
renee of the city to do SOL to use steam OF
| other than animal motive power.
Taking into view the fact that this line
was then constructed and the recitation o.
that fact, and of the fact that the company
had succeeded to the rights in the road,
do not think il can be intended that an.
| other track in East tst. was contemplated
| The right granted was to construct snd
| maintain a railway with all convenient
| main track, and / do not think double
track or any other track than then existed
was intended. and this appears to have been
the practical construction OF the company
| for seven years.
Furthermore, 1t ia not fair construction,
| in view of their location of the road in the
center of East-st. under authority. presum.
ably. of the city as well as the township
that assumes that the purpose was to con-
firm the grant to the eastsrly portion o.
East ST.. il is more reasonably to infer thai
the township board contemplated the con.
tinuance Of the line in the center of The
| street under tLis concurrent authority, anc
that the grant was not intended as one ex
| cluding the city from a voice In the matter
Upon . careful consideration of this ordi
| nance do not consider that an additional
grant was intended. Bot assuming the or
dinancs to have been passed with the pur.
pose of enabling and in sufficiently broad
| terms to give the right to construct q new
track the question il still presented o.
whether the township had the authority te
do this without the concurrence OF the city
III the ordinance has the construction above
suggested rs simply dictatory of the right;
OF the company in the road already con
| structed il is Of course clear that the author
ity to use steam motor must have oeeu de
sired from both municipalities, and thi
not being claimed the use OF such mote
| would be unlawful.
But has the city such an interest in thi
street as that railway cannot be estsb
lished in any portion OF il without its as
sent.
No authority has been found by eithe
counsel or the court which throws any con
siderable light upon bis question. In fac
the situation IL anomalous. The pleading
both bill and ans ser) show that both mu
inequalities are equally interested in th
street And the act Of 1875, ss smedndes
by the act Of May 2lr 1877, giving suthorit,
TO the oty and adjoining townships to joii
in the improvement Of highways lying be
tween the city and township, seems TO b
the only law applicable here.
IL il true that there is general ststut
relating to line rssds. Sec. 1907. bat this
not shown to have been improved und e
that section. ard IL is to be presumed ia .
the authorities have proceeded under th
law Of 1877, indeed, ss il Vas conceded OF
the argument that the street hsd been i'm
proved and graded. IL is beyond question
that such is the fact.
The act Of 1877 authorized the Beard G
/ EHoiiC Wtfss 20 afrA1ke end QeIeFmlu
vita the Commissioners Of Highways -
the Improvement of streets running bs
tween the city and adjoining townships
snd the expendinr on said high wsy Of IN
raoosy o. labor % Ne expended thereon b
the city and townships respectively. and {
! desermine vith the commissioners
| deemed sdvissble What por tioB may
worked bT tae city sod what portion sha
Be improved oy the township.
Il does rot appear whsfhef the author