Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-04-26
A BIG LEGAL FIGHT
Begun Against the Duquesne
Traction Company.
4 TEST OF ITS RIGHTS
Made by Highland Avenue Property
Owners in Court.
AN INJUNCTION is PRAYED FOR

In the Court OF Common Pleas No. 2,
Johns McCleave and George Shiras, attor-
neys for Charles Lockhart, D. P. Relghard,
w. Elkins, Thomas S. Bigelow, executor of
Mary Bigelow, deceased, B. L. H. Dabbs,
S. Hamilton, Alexander King, Thomas B.
Moreland, II. W. Fulton, Reformed Presby-
terian Chnrch, j. 2. Wainwright, Agnes c.
Graf, James Lappan, Gibson & Brother,
A. NJ. Voight, George Lang, A.
O'Leary, B. Wolff Jr., ]. c. Buffum, l..
S. Moore, Ira T. Brainard, S. F. Logerfeltt,
Harriet L. Rook, George Rutter, Thomas
Hobson, Emily Doak, w. A. Doak, Robert
Dickey, Mary Ann Menold, Charles Friel,
Pennock Hart, Robert Sleeth, W. d. King,
]. B. Larkin, Charles w. Bachelor, James
G. Weldon, W. B. Negley, Adolph Coed
del, John Hays, Catharine r. Negley, A. S.
Matthew, S. c. Hoeveler, c. +. Seip,
George Kappel, w. j. Radclif, William
NJ. Dennison, G. c. Moll, j. n. Pew, James
Phelan, Isabella Wallace, ID. II. Wallace,
Bethany Lutheran Church and Thomas S.
Bigelow have filed bill in equity against
the Highland Street Railway Company and
the Duquesne Traction Company, asking
the Court to declare that the defendants
have no lawful power or authority to lay
down or operate street railway on North
Highland avenue, in the Nineteenth ward,
between Kirkwood and Bryant streets.
PLEA OF THE PLAINTIFFS.
The petitioners set forth that they are
owners in fee simple of eight-tenths of all
the lands abutting on the avenue between
the points named, and own to the center Of
the said highway. They ask that the de-
PENDANTS now, by preliminary injunction,
hereafter to be made final, be restrained
from entering upon, laying down, construct
ing, maintaining or operating street rail-
way between the points named; or, that be-
fore defendants may enter, etc., they be re-
quired to pay to plaintiffs just compensa-
ton for the injury likely to result by reason
of such occupation, or to give plaintiffs ade-
quate security therefor; and ask for such
other relief as the exigencies of the case may
require.
Prior to the filing of the petition there
was gathering of the petitioners, at which
Mr.. d. P. Reighard set forth the case for
the plaintiffs thus, and his version is similar
to that contained in the bill. The avenue
has been paved with a smooth asphalt pave
ment, wholly paid for by the plaintiffs.
which diminishes largely the noise and an
noyance caused bv travel, and the improve
ment has largely increased the value of lands
abutting, FOR residence purposes, etc. Mr..
Reighard says the ground on which relief is
sought presents two serious questions for the
defendants consideration and digestion. He
says:
RIGHTS GRANTED BY LAW.
at appears by the street railway law
that defendants have no right to enter on
anv street to construct road without con-
of ho of ho hnf of
consent is easily obtained.
"All the annoyances which would result
from the construction of such electric rail-
wav are set forth In the bill, and it is re-
cited that the Highland Street Railway
Company, by virtue of its Incorporation
under the act of May IA, 1889, is invested
with the power to take private property for
public use, and the Duquesne Traction
Company, incorporated under the act of
March %, 1889, has made or is about to
make some lease or other agreement with
the Highland Street Railway Company, and
City Councils have pretended to give the
Duquesne the right to do so, and thereby
destroy the comfort of the residents who do
not need or want such road, at least so per
cent of the interest does not"
Getting back to his mutton, Mr.. Reighard
says a general ordinance would not accom-
plish the purpose of the defendants, as it
would allow any other company to enter on
the street and compete. The Duquesne
Traction Company proposes to have exclu-
sive authority, and to "rule the roost," and
could only obtain it by securing the passage
of the special ordinance, and now the ques-
tion arises as to whether the Pennsylvania
Legislature or Pittsburg is the superior
body, and whether bv virtue of an ordinance
of Pittsburg Councils the Duquesne Trac-
ilo 6
bly,.
AS TO CoNSTITUTIoNALI1Y.
Having gotten this far, the plaintiffs as
sail the constitutionality of the act itself
under which the Highland Street Railway
Company claims to be incorporated. They
propose to show, they say, that the act of
MAY IA, 1889, is in violation of Article XVI,
Section s, of the Constitution, which pro-
vides that corporations taking private prop
eFty must make restitution to the owners.
Mr.. Reighard states that the street railway
act plainly gives to corporations the privi-
lege to take private property, but provides
no compensation for damages.
By this time Mr.. Reighard got warmed
up, and discoursed substantially, as follows:
1.-The proceedings are in direct violation of
the constitutional requirement, and give no
authority to companies incorporated
roads without compensating for injuries
done private property. If this point be
well taken-and it seems to be-the result
will be that none Of the Duquesne Traction
Compsny's charters railroaded through the
Legislature and Pittsburg Councils are of
any validity, and in this view it seems to
raise question as to the very existence of
these companies. Investors had better put
on their thinking caps. To layman it
would seem plain that when the Con-
stitution requires compensation for
property taken, and the question arise
as to whether the Legislature has power to
incorporate company on such basis as
this, and If the Legislature has no power,
where will it be found? Judge Penny
packer, in the Common Pleas Court of Phil
adelphia, in the case of the Peoples Passen-
ger Railway Company versus the Marshall
Street Railway Company, intimated strongly
that the general street railway act was un-
constitutional, and would be SO decided by
him were the question involved in the issue
before him.
"For these reasons the property-holders
on Highland avenue invoke the aid of the
law for the protection Of their property, and
to test the question as to whether they have
any rights that corporations are bound TO
respect"
Counsel were directed to file the bill forth
with.