The Portland daily press., 1889-06-13
THE FERRY LANDING.
Hearing In the Supreme Court BE-
fore Judge Foster Yesterday.
Judge Foster Refuses to Grant Gen.
Dow's Petition.

The petition by Neal Dow for an injunc-
tion to restrain he City of Portland from
building the highwaf aud ferry landing over
Portland Pier. came before Judge Foster in
the Supreme Court room yesterday morning.
The petitioner was represented by Seth
Larrabee, Esq, and William ii L0oney.
City Solicitor CoOmbs was present in behalf
of the city. n & II. B. Cleaves were pres
ent on behalf of the original petitioners and
the town of Cape Elizabeth. Hon. Charles
f. Libby represented the owners of the
wharf, and Hon. J. ii. Drummond some of
the original petitioners.
Judge Cleaves said that before, the matter
proceeded he had motion to make, which
he read, setting out that the original petit
TONERS petitioned for tine way, and that the
City Of Portland were adverse parties, and
that Neal Dow, this complainant, was wit
ness in behalf Of the city and in opposition
to the petitioners. Both parties to this bill
are therefore on the sa@e side His motion
was that these original petitioners be ad-
mitted parties defendant to tbe bill, and also
that they be admitted to defend their inter-
ests at this hearing.
Mr.. Larrabec objected. He said that be
proposed to introduce no evidence other
than that shown by the records Of the Com
ty Commissioners and of the City OF Port
land, and asked the decision of the court
upon that record evidence alone.
The court sale he would hear Judge
Cleayes upon the motion. Judge Cleaves
then reviewed the history of the case TO the
present time The petitioners, said he, have
from first to last seen the moving parties III
this matterfl Some of them petisioned for
the act of the legislature of 1873 and also Tor
the act that was passed in 1885. They are
the parties to the record from the beginning
to the end of the whole matter. Where
were the parties to this bill of complaint?
Mr.. Dew was a remonstrant, appeared in
court as witness, and gave as strong testi-
mony as it was possible for a man to give,
and the City of Portland was an adverse
party from the beginning until week ago
as the records before the court will show.
Mr.. Larrabee resisted the motion upon
two grounds. First. that If any parties de-
sire to be joined as defendants, a motion at
this time is not the proper way for them to
get into court, and he cited several authori-
ties in support Of that position. Second,
because these petitioners have no interest in
the matter about to be heard. They had an
interest in the original petition for high
way and ferry landing The Supreme Court
of this State ordered the commissioners to
lay out the way which they asked
and thei- requests were granted.
that proceeding is closed. The way has
been located and it has become public way
but no more the petitioners way than it is
they of any other citizen. This motion does
not go to the merits of the bill. The bill is
returnable at the July rules when these pc
titioners can come in in the proper way if
they can come in at all, and be heard at that
time.
Mr.. Drummond did not think this was a
highway at present. 1t has yet to be con-
structed and opened to the public. He did
not agree with the counsel as to the power
of the court in admitting parties to defend.
1t is true that man cannot be made gem
eral party t. bill In equity upon motion
but that is not the scope of this petition.
This motion Is that we be made parties to
this hearing. We are interested and ought
to have chance to be heard. 1t would be
an anomaly If a man could frame bill in
equity leaving out the real parties in inter
est, get his injunction and them make the In
terested party wait until final order Of
court before he could take advantage OF
nything of this kind, Mr. DrummOnd cited
several instances in which parties had been
admitted under similar circumstances.
Hon. Charle3 +. Libby read the petition of
the wharf owners asking to be admitted as
parties. He said that the power of the
court In equity TO direct amendments to the
bill en- pain of dismissal in the way of adj
ding new parties, whose rights may be af-
fected by the decision of the court, is undis-
puted. The power of a court of equity to ad-
NIT parties on their own petition is sus-
preme Court of this State. Our property Is
imperilled by this petition for an injunction
and unless the bill is to be dismissed for the
want of necessary parties we should be ad-
mltted on every ground of equity and justice
to present our evidence bearing upon the
question whether 1t is meet and proper that
the prayer OF this petition should be granted.
Judge Foster said he did not think it nee
essary to decide these motions at this time.
| The burden Is upon the complainant to show
| cause why this Injunction should be granted.
| II he fails then it will not be necessary to
| admit the parties to this hearing. l will
| first hear what the case is. 1t may or may
not be necessary to admit them at the hear
| ing on the merits of the case.
| At the request of Mr.. Larrabee. the city
| solicitor admitted that the county commits
| sloners closed the proceedings finally on the
| 9th of January, 1885, and laid out the way
over Portland Pier substantially as described
| In the BILL that the sum of $4,000 has been
| appropriated for the construction of the
| way and that the city is about to construct it.
| 1t also appeared from admissions that the
city has contracted for piles to the amount Of
$1,000 and that the bills for the same. were
| approved on the day before this bill was
served upon the city.
Mr. Larrabee said he did not propose to
discuss at this hearing the question whether
the proposed discontinuance of the way. is
wise or not. 1t is sufficient for this hearing
that it may be discontinued. The substance
| of this complaint is that the city of Portland
| is about to expend and has expended in part
a large sum Of money, to be raised by taxa
ton, In building the highway and ferry land
ing, for the discontinuance of which a petit
tion is now pending before the county COM
missi0ners, to the irreparable injury OF the
| complainant as tax payer and a citizen; If
the city expends the proposed amount in
constructing this expensive landing and slip,
and the commissioners at their
hearing discontinue the highway, and
| on appeal that decision is sustained. the
money which the city has put into that high
way and landing will be lost. There is no
way in which the city can recover an expen-
| diture Of that character. 1t Is also evident
that the complainant being a contributor to
this large sum of money threatened to be ex-
| pended will suffer irreparable damage for he
cannot successfully resist the collection of
the tax which is assessed upon him, and he
which he sustains. Mr.. Larrabee read from
authorities as to the right of one taxpayer
| to apply for an injunction on a municipal
| corporation 1t is not claimed that the pro-
posed action of the city is illegal or ultra
| wires, but that 1t is contrary to equity. This
bill is not brought for the mere purpose of
| obstruction, but is brought by a gentleman
who pays large tax and who has right TO
adjust his affairs as citizen and taxpayer
with his city. He simply asks that the city
| be enj0ined from expanding this money un-
til the merits of the bill shall have been ex-
amined and granted or denied. This motion
| II granted can occasion at most but slight
| delay. The granting of a temporary in
junction will preserve the rights of all par
ties until the full question can be heard. 1t
can be but short period at most, and the
complainant much desires that the motion
| may prevail and the injunction granted.
| City Solicitor Coombs said he did not deem
| it important or necessary to offer any evil
| dence, but would rest the case upon
| the compliments bill and the
admissions at this hearing. He did
| not think the court would construe Section
| ii. of the Statute, giving the court of equity
| jurisdiction, to include a case of this sort.