Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-03-02
A COMMISSION CHOSEN.

Ia WMMISSlON CHOSEN.
ITHEY~WIEL APPfRALSE THE LAND
FOR THE N. r. DEPOT.
Hearing of the Northern Pacific Case In
Chambers Finishsd-Colonel MoCutch-
con Defends the Montana Central
Ground-Mr. kirkpatrick Ststes the
Case for the N. P.-Colonef Sanders
Amusing Historical Retrospect.
The proceedings under the Northern Pa
1 cific complaint for condemnation OF the
right OF way into Butte were resumed BE-
fore JudQe De Wolfe ia chambers, yester'
lday. The array OF counsel OF the proceed
ing day, was reduced to Colonel Sanders,
lColonel McCutcheon, Mr.. Kirkpatrick and
Mr.. Speer.i The counsel who yesterday
answered for the body Of the property
owners apparently accepted Judge Ds
Wcffe's announcement that il they had
any claims to make or arguments to op-
pose to the appointment OF a commission
they should formally secure their footing
by answer as an intimation that they had
missed their opportunity and that OPPOSE
| ton on their part was too late.
l IN the forenoon Colonel McCutcheon pre-
| seuted the case OF the Montana Central.
l His argument was based mainly on the in
| volatility of the roads ownership in the
ground it holds for yari room whether In
actual or putative occupation because it
had once been appropriated to public use.
/ He held that it could not be taken by an
| other corporation for similar uses because
the one is as great q public necessity as the
| other, and the corporation he represented
| now holds it for q public use. 1t did not
| affect the question that the part wanted by
| the Northern Pacific has not yet been used
| by the Montana Central, but the road
| had O right to anticipate it's future
wants, in support OF which he quoted
| numerous authorities. He also enlarged
| upon the incapacity OF q judge in cham
beers passing upon the question OF greater
| public necessity between the two corpora
| tions, which must be decided in open
court, with the assistance OF evidence. He
| reiterated and illustrated his contention
| OF yesterday that to appoint commission.
| ers as now prayed would be to decide vir-
tually that the ground could be taken.
| He made out an apparently strong case
| for the Montana Central. The hearing was
then adjourned to 2 p. m.
In the afternoon City Attorney Speer
| addressed himself to the difficult task
| assigned him by the City Council Of giving
q reason why the city should be opposed
| unopened street across a placer diggings
for yard and depot purposes. Mr.. Speer
entered upon his task with as much + avity
| of c~ountenance as he could assume. The
| weight Of his remarks were, OF
| course, in defence Of the inviola-
| bi1ty of Oregon avenue, an imaginary
line on paper in Hopkins addition, sup
posed to begin somewhere above Gold
/ street and extend s~outhwardly 20 some
where below Platinum. He endeavored to
show that to condemn Oregon venue and
blot it out of the map Of Hopkins add.
ton would necessitaGe the city at some
| time in the indefinite future opening q third
| of q mile of new street to maxi up for it
for the accommodation of the traffic from
the Montana Central depot. In the course
OF his remarks he wandered all over the
placer ground as far west as the gas works.
The Judge called his attention to the fact
that the Montana Central freight had sufi :
Gent outlet through Arizona street.
Mr.. Speer alleged that Arizona street be-
ing numbered with q street railroad the
growing traffic OF the Montana Central
would need another outlet soon. Besides,
to subject a street to depot and yard pur-
poses is something q court seldom does.
Judge De Wolfe: The question is, would
the public uses to which the Northern Pa.
cifc propose to devote Oregon avenue be
more useful than the public uses to which
the city proposes to devote it. He placed
the location OF the several streets in con-
troversy clearly before Mr.: Speer and then
asked him If, in his opinion, it would be
detrimental to the inhabitants of a city to
vacate u street at present unopened and
not q central avenue in any case and to
open the land to a railroad.
Mr.. Speer laughingly replied that he was
sent there by the Council to perform a
specified duty and had no private opinion
to express.
Mr.. Kirkpatrick opened the case for the
Northern Pacific. The question OF the
power OF eminent domain is fully vested in
the Legislature. 1t has D. right to prescribe
the conditions, manne and extent to which
that power shall be exercised. The statute
embraces the whole subject OF eminent do
main which he proceeded to enlarge upon.
The proposition was, should his honor now
appoint three commissioners under the
statute to assess and apportion damages
caused by taking the property described in
the petition and designated IN the map be-
fore him. He read from the statute the
several requirements of the statute pre-.
liminary to the appointment OF a commits
sion which he proceeded to argue in order.
First that the court or judge must find
that public interest requires the prosecu.
ton of such an enterprise. This is q pro-
posed taking Of property for public use. It
is manifest without discussion that public
interest requires the prosecution of this en-
terprise.
Second, that the lands required to be
taken are necessary for the purpose of
this enterprise. 1t is not denied that this
is necessary. II a railroad itself, through
it's agents. designated property and claims
that it lie at cessary. Here is a complaint
showing that twenty-six and a fraction
acres OF lane are necessary.
Judge De Wolfe interposed that if the
complaint in this case is to be construed
as in other cases, the allegations of the
complaint must denied by the defendants.
Colonel McCutcheon read from the an
swer OF the Montana Central to show that
it expressly denied that the portion Of
it's land proposed to be taken WAS
mere necessary to the Northern Pacific
| than to the Montana Central.
Mr.. Kirkpatrick said he was not arguing
the question OF greater necessity, but
simply If it is necessary for the purposes OF
the Northern Pacific and il the Judge de-
sired any testimony on thai point it as
at hand in the person of Chief Engineer
J. w. Kendrick. He concluded that if his
honor was satisfied on the two points be
had indicated, and these only, the appoint
ment OF commissi .ners would follow. 1t
is Il mere administrative act. 1t is the 3D.
pointment simply OF a commission to ap-
praise and value property so that the
money value once fixed may be deposited
in court and the improvements 20 forward.
This is simply a preliminary process. The
exercise OF the Judges power depends only
on those two things.
He then applied himself to the srgu.
ment Of Colonel McCutcheon that a Judge
in chambers could not appoint commie.
sioners. He had put it on the grounds that
it is necessary to decide that the use to
which the Northern Pacific wishes to an.
propriate the property is more necessary
than that to which the Montana Central
desires to devote it. He haa shown
plainly by the statute that "a Judge at
chambers may appoint commissioners"
This by implication gives also the power
. - nn.~- D%