Telegram-herald., 1889-10-05
co AHEAD SAMUEL
The Injunction Against the Kent
County Railroad Dissolved.
TEXT OF JUDGE BURCHS DECISION
Time Net the Esseaoe 81 the Contract
Tie Read ? Gol4e B0Oa-kestriC-
tious Proscri bsd-Alioss sixty
Days 81 Flnish Ihx keAa

TIC ActSAAai1l com l5>tilf from DA444aAA
a railway from the east boundary line
OF the city 20 Reeds lake passing
through and over certain streets ia the
suburbs OF the city, bat not included u
the city limits, said streets beng high
ways OF the township of Grand Rapids
Upon filing tins bill restraining order
was issued by the court against said
company, and they were required h
show cause why preliminary injunc-
ton should not issue. The defendants
appeared, filed a sworn ans wer. and
took by consent the testimony Of one
witness, the commissioner of highways
Of the township Of Grand Rapids, and
flied certain afidayits. The matter
was fully argued upon the showing
made AT the time, the restraining order
was removed, and the temporary in
junction denied by this court upon the
theories that all the equities IN the bill
had been met and fully answered by
the defendant. The defendants then
proceeded 10 operate upon one of the
streets where they had previously been
grading, and had nearly or quite fin
lshed their grade, when a petition was
filed by the township as a supplement
10 its original bill of complaint, setting
forth that the defendant company were
proceeding but slowly with only a small
force of men, using old and worthless
material, and so constructing the road
a. to practically blockade the street as
| a highway for ordinary purposes; Great
! ing a standing nuisance; were doing
nothing upon the private right OF way
! beyond the point where the line
| dIverged from the street, and were
wholly unable and incompetent for
| financial reasons 70 complete their
! road.
Upon this showing, the court again
issued restraining order against the
defendant company with an order 10
show cause. This came on 20 be
heard on Monday, September 30. Again
voluminous affidavits IN every way
meeting the allegations of the petition
ers and answering them were heard. In
the meanwhile the counsel for the com
|
of the work itself 10 this court, urging
the proprlety of personal inspection by
the court of the work which had thus
far been performed. Believing this 10
| be the most practical way Of ascertain
ing the truth Of the allegations Of the
board, the work was visited by the
court and so far as it had progressed,
| inspected. The iron was found 10 be
reasonably good, the ties new, the
| grade very fine improvement TO the
street, although not wholly completed,
and little real cause found for the
urgent complaints of the board, unless
! it might be in the slow progress Of the
work, and this had not been going on
for q sufficient length of time 10 prac-
| tically determine whether II was under
| the circumstances too slow or too fast.
1t was found, however, that little or no
| work had been done on the private
right of way after the line diverged
| from the street.
Upon hearing OF the order 10 show
cause il was urged by the counsel for
| the complainant board a "A rule OF
| equity practice, that the court should
not attempt 10 determine IN advance of
hearing upon bill, answer and final
proofs, the man question involved IN
the controversy, namely: Whether
time was of the essence OF the contract
made between the township and the
defendant company, by the passage of
the ordinance of the township board
and the acceptance OF the same by the
defendant company. 1t Is perfectly
obvious that if the court waited for a
final hearing of the case upon bill,
answer and proofs, continuing its re-
straining order IN force, or granting a
preliminary Injunction, that the road
could not be completed before the In
clement season of the year, and that its
completion would necessarily, If allowed
at an by the court. be deferred until
the spring of next year. To the ques-
ton. then, whether the court ought now
to determine as to the materialIty of
time in the completion of the con-
tract, the court must now address
itself.
"There IS, undoubtedly, a class of
cases, which, from their nature. would
not permit of such a determination
until final hearing. There IS another
class OF cases where the court might
| reasonably determine from the very
nature OF things as they appear,
whether time was or was not OF the
fessence of the contract.
at seems 90 the court after careful
reflection that the case under consider
alton is one IN which the court could
as easily determine that question upon
the face of the proceed ings thus far had
a. at later period after any amount
of testimony had been taken. The or
dinance and the acceptance Ofthe same
show for themselves, and that the work
had been commenced and valuable I'M
provoments made at tie expiration OF
tho first sixty days, when the board
passed the resolution declaring the or
dnance no longer IN force, Is equally
manifest both from the showing made
bv the affidavit and the answer and Us
clear ocular demonstration. that tht
township would be irreparably OF ever
seriously damaged by the failure q
complete tie road within thirty to srty
davs can hardly be seriously cOutcnded
and 20 far ~ the financial ability or n
tent0u of the defendant company 4
complete t within that trne. d SEEM
- the court rather a matter % b.
demonstrated one way OF the other bT
acts OF the company than o. be th.
proper subject for testimony n court
1t would be unsafe for the court b. az
rive At q conclusion taat anything c0al.
1 not be done whIchltfs within the powe
Of money and lsboT 90 do ln thss age o
/ rapid movements. unless It was SOM,
0f those things winch are piainl
classed among tie inp0ss blt.es
! and ln tne face q tins the de
, ! fendaut company strongly urge tho
; aahty. their Intention and tner any
/ .o3y % 20 on and complete the wegi
within such reasonable time a. tn