New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1888-12-28
DIsCUSSING THE PARADOX.
>. rrcrprp1Y KYorrY LEGAL QUESTION.
noru SIDES OF THE POSITION TAKEN BY THE
~x.rrn yoAps IN TIE COURTS


ROTH SIDES OF THE POSITION TAKEN BY The
ELEVATED ROADS IN THE COURTS.
The article which appeared In The inouhs y"
w.sncsdsy in regard 10 the latest aspect oil 'he oie
v.,ed railroad litigation, and the eject which inc
.o.. NJ Pond against the Metropolitan Elevated nan
w.v company. submitted last week TO the Couf, Oh
Appeals. would have upon IT, has excited much COM
m.nt among the large number of those interested Oh
bo,h Sides Edward S. Rapao. Of Dawes q hapsiio'
attorneys for the elevated railroad company, VINO
roued the Pond case before the Court of Appeals ast
week, said ,noo.,s
xv,u depend upon propositions of law already elaoo
raey discussed before the Court in other elevated ran
rad cases The right 10 bring equity eases IN 'hcse
matters has already been disposed OF ok Inc Oou' Va
Appeals. Upon THIS appeal no elaborate sfsuhoh'
was made upon those questions discussed so iuiN il"
ne cases 10 which have referred The court on
this last occasion asked simply TO Apply 70 Inc
pond case what II had already decided I'm the cases
NJ Henderson. Lair Ulinc and the National Exchange
, Bank ANY statement that no elaborate argument
was made for other reasons implies non-familaniy
with the discussions In those cases. upon that very
pont The counsel 10 the company have always taken
precisely the same position upon these questions be-
fore all The courts. The article which read in this
mornings paper seemed 10 contain. as read IL, an
accusation of hind Of intellectual double dealing with
the courts and a general lack Of sincerity which
should regard as highly unprofessional II true. bu'
no such shifting OF ground has ever in fact taken place.
I observed that the counsel for the railway company
are represented as endcavorng 10 MAINTAIN one sue
of the question as TO the propnety of the properly
owners bringing actions law suits In equity
before the Court Of Appeals, and the other side OF
the question before the lower courts. There Is no
truth whatever IN suca criticism, as Tire position
upon the lave points assumed by the counsel to the
company has been consistent throughout and was
the result Of careful study in tic beginning
John L. Parsons, who has represented largo ana
small property owners in this kind Of litigation, said
Il understand It TO be perfectly well settled that
a property owner cannot permanent damages
from the elevated railroad COMPANY He can sue
for an injunction and the railroad TO prevent being
enioned can have the court fix the value of the ease
ment which IS be taken, so that upon payment OF
the assessed value the company can escape being EN-
1oined The only absolute right TO money judS
ment in favor Of the propcrtyOwner is limited to the
injury to his property done by the railroad company
during the six years preceding the beginning of the
action. Originally the company took this position
and 1t upon its contention that the courts laid
down the rule which | have stated. have no doubt
that has proved be against the interest OF tho
railroad company, but do not believe that even in
suit arranged for the purpose the Court of Appeals
Will come n determination different to that which 1t
has previously made. have always insisted that
permanent damages c9uld not be recovered, and in
suits which | have originally brought l sued only
for current injury. 1t has always been my opinion
that the law permits such damages only TO be re-
covered. think % still'
william G.. PccIham, of Peckham Tyler, said that
The Tribune's article had been the csuse of much
talk among The counsel for the property owners, and
that probably Immediate action would be taken TO re-
strain any such movement indicated on the part
OF the railroad company.
Charles q. Bennett, Of sackctt & Bennett, also
Vow
=: Is perfectly we'll settled that in such actions as
tan in formal action ar law I'm equity recover
permanent damages : such. Al law they can re
cover current damages up the time of bringing the
action and NAV continue 10 bring new actions as
frequently as they choose. In equity the action is
brought for what * called extraordinary relief" an
injunction. \ OF equity. incidentally 10 its
jurisdiction to grant an Injunction. may also award
past damages. But the determination as matter Of
fact does not actually grant injunction absolutely
IN The first instance but allows the defendant an
option either 10 pay permanent damages or 10 sub
nit The injunction. Thus in effect does court Of
equity have power 10 award permanent damages. The
above course adopted in the Henderson and
II has been followed In all equity cases against
elevated railroads. The attempt In the Pond case Is
20 persuade the Court Of~ Appeals 10 hold that a
property I'm action at law recover pcrma
damages The effect of such a holding. at leah I
ibc defendant would argue would be 10 do away
with the Court of Equiiys jurisdiction in such cases,
covered in actions at law, The remedy at law is
nd