Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1890-11-30
AGAIN PUT OFF.
TEE B. & 0. SWITCH CASE COMES UP In
POLICE COURT.
An Opinion Prom the Solicitor and Survey BY
the Enginesr-Ths Evidence Heard and
Decision Reserved.

of the three men, arrested week or so
ago. charged with violating the ordinances
of the city in that they had aided In the
construction of the new B. Il o. switch on
the west side of McCulloch street, below
Forty-iftb. The defendants, who are
Fnos little. George A. Clark and Henry
c. Dean, were not present IN person, Dut
were represented by Mr.. Stephenson, the
local agent of the Railroad Company al
this point City Solicitor White appeared
10 behalf of the city, and submitted WRIT
ten opinion, which is given in full below,
and this was backed up by survey Oh the
locality. made by Engineer Hoge. Ofncer
M enkemeyer. who made the arrest, Chez
Deibrugge. and others were in attendance,
and quite a lst of evinence was adduced.
The opinion of the City Solicitor was
read by the Court, and was as follows:-
WHEELING, W. VA, Nov. 90, 1890.
40 tie Mayor:
~ have spent much time and labor in en-
deayoring 10 get at the true state OF facts con
nected with the charges against employees oil the
b. n .. r. X. Company for digging into McCui-
! loch street. ,..,
There are many difficulties connected with
proper understanding Of the whole subject mat
II find that about the year 1915, the farm, then
known as the 'Bogg's run farm was iaid on
INTO lots for partition, and afterwards sofa IN
chancery cause then pending. Among THOSE
| lots laid of were two numbered respectively III
and H. as appears from the plat. The horth
side Of said lot No 10 is wnat is now known as
/ the south line OF Forty -hfth street. II Is shown
! by said original plat as running east from what
| i; now called Jacob street formerly Plank
road street) to the eastern side OF said lot No.
| TO- - distance OF $50 feet; and the line between
| lots No. 10 and IL. from said Plank road street
| TO the east line OF said lots IS shown upon sara
/ Mat TO be GIL. feet and the southern line OF
Said lot No. IL, running from said Plank roao
street to the said eastern line, Is shown by said
| plat TO be 6l2 zig feet.
they were sold in the chancery cause referred
| TO- the Baltimore and Ohio Railroad Company
condemned of OF said lot No III strip through
II OF SO feet each side OF its centre line when
centre line commenced at point in the south
line OF said lot No. TO- 80 feet from the east line OF
said lot No TO- running north degrees and -
minutes, for 40 feet. This condemnation was
confirmed in February, 1901.
lit Is evident from the records that the SAID
railroad company purchased portion OF SAID
lot No. II: for deed, from the then owners rec
ognize such purchase; but l cannot ma re-
corded the deed or deeds to said company Tor
what they bought and therefore it is impoSsi-
bic TO state correctly what they show or what
| the company bought.
After this. in March, 1857, the then owners
OF said two lots Nos. 10 and IL, laid out. upon
said lots town lots with streets and alleys. In
LAYING out said lot No. IL into town lots, the
rpcorls say that il was laid out OF that portion
Of said lot No IL which had not been previously
sold to the Baltimore and Ohio Railroad Com
pany. 80.
Am exaninatSon of the plat of said additions
OF town lots laid out upon said lots Nos. III ana
| II (Which additions are known as Jacob adj
ditions Nos and 81. will show that the then
| owners were endeayoring to lay out such lots
and streets on said lot No. IL, lrea of what had
been before that time purchased by the b. ~ U.
T. K. Co.. and that in laying out said lots upon
ii l.. NJ a hay do iyna IN
leave on lot No. 10 street-way of 30 feet wide
west OF the land OF the Baltimore and ONO
Railroad Company. and also upon said lot No.
II street-way, which. they say in substance,
NAV be little less or may be little more than
% feet, which Street-way is called upon the plat
Railroad street
The street left or laid out on the south side of
the lots laid out upon said lot No IL, was called
Depot street.
ii have no means OF finding the description in
any conveyance to or agreements with the H. y
O. r. K. Co.. for what II may have purchased
before these lots were SO laid off. But an exam
ination OF the Richards map OF the city shows
upon II the lots in said Jacobs addition No. .,
to wit lots No. q, -, - and 30, as the property
of the Baltimore and ohio Railroad Company,
aud an examination of IN records shows that
the per,on who laid OIL said jacobs second adj
diti0n. left street way upon their plat, OF 30
feet more or less. between the main track OF the
Il. n o. Z. r. Co. and the said lots No. p, ~, ~
and 30
NV information is that the persons charged
were digging at point about 100 feet to 10 feet
north Of what is now Forty-seventh street.
"Forty-eghth street opposite or south OF said
lots No %. % ~ and 30. appears by said map TO
be- almost entirely in Marshall county tn line
between the counties crossing said lots so rs to
leave "a small portion OF them in Marshall coun-
IS. Mr.. Hoce, the city Engineer, informs me
that he ran the line from Jacob formerly
Plank road street to the railroad, and by run
mag the attire number Of feet given upon the
pidf OF the lots and streets OF said Jacobs addl-
ton No . On part of said original lot No. IL. |
the Railroad Company have placed track SO
A. bv Suci running, To be upon Railroad street
NOW McCuloch), at Forty-Seyenth street,
about IL feet at the south line OF Forty-seventh
street But that measuring from the centre OF
the railroad To outer edge OF said tract he finds
said track. AT that point to be within ~ ieet oil
lie also ran line by the course and distance
given upon said old original plat OF SAID lots No
10 md ii. rs laid oil as aforesaid and by such
running the said track of the railroad company |
: OF OF and east Of. the said Railroad street
(now McCuloch street., at Forty seventh street
about ~ feet.
THE point aforesaid at which said parties |
who were arrested, were digging. is not accord |
ing 90 Mr. HogeS running, upon any street, but |
is upon the property OF the railroad company.
II the railroad company is entitled 10 have
the survey made according To the course and
distances laid down upon said original map OF
the Bogg's run farm. part of which IL pur- |
chased rs aforesaid. before said Jacobs addi- !
street, the company is not upon any street; but,
Immediately south of Forty-Seventh street. the
company has laid track. curving 10 the west.
and running across what Is known A. Railroad
street upon said plat OF Jacobs second addi-
tion. obliquely, into and across what appears
upon the said Richards map a it, property.
and which is said lots Nos n, ". - and 20. in
said plat OF Jacobs addition No. >. and then
extended on through said lots 90 Forty-eighth
street which is in Marshall county, rs before
stated.
The said Railroad street or 3l-foot street
more or less. according to said laSt-named plat
OF Jacobs addition. appears not to have been
thrown up or otherwise improved rs a street so
far rs could observe.
What may be the exact rights OF the Balti-
more and Ohio Railroad Company along and
below Forty-seventh street. cannot be accu-
rately determined without access to the deeds or
agreements under which 1t claims the property il
purchased there, which deeds or agreements
cannot find OF record. But II there Is Il street
there, whether ~ feet, more or less then, in
such case, the Railroad Company has crossed II
obliquely. rs before stated.
The foregoing are the facts connected with
the matter 80 far rs | have been able, after
careful research, to find them.
Respectfully submitted,
ROBERT WHITE.
City Solicitor"
The plat. submitted by Engineer Hoge,
in connection with this report, showed
that the track laid down by the Company
crossed Alley oo anu Oruy-SeNenlu street.,
before it swung around on what the Rail
road Company claims is its ground, and
what the city claims is a part of McCul-
loch, so that however this latter question
may be decided, there is no doubt of the
line having been laid across Alley 80 and
Forty-seventh street without permission
from Council. The Mayor took that view
of the matter, and was about to pronounce
| judgment, when his attention was called by
Agent Stephenson to the fact that when
the three defendants were arrested, they
were working on the line between Forty
sixth and Forty-seventh streets, where the
dispute as to the ownership of the ground
is in full force, and not on the crossing of
either Forty-seventh street or Alley SO.
In this view of the case, His Honor an
nounced that he would reserve his decis-
cicinr until nnYf "Wednesday morning