Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-03-25
A LEGAL OPINION
FROM The CITY SOLICITOR, on THE ELECTRIC
POWER HOUSE QUESTION
He Thinks the Council Has No Right to Inter
iere. But That Citizens Aggrieyed Ought
to Apply to the Courts-A Sub
Committee Appointed.

ZonS and examine generally INTO the
matter of the vibration caused by the
machinery at the plant of the Wheeling
Electrical Company. met at the City
Hall last evening, pursuant to the adj
iournment of a week ago. \ consider
able number of residents Of the portion
of the Fifth ward adjacent to the power
house were present. and some addition
al testimony. not differing materially
from the evidence placed before the
committee at its first meeting, was adj
duced
When the testimony was finished,
Chairman Farrell called upon the City
Solicitor for his opinion as to the pow
ers and duties of Council in the prem
Uses. i'm response TO which call Col.
White submitted an opinion,
After laying down very fully and care
fully the distinction between "A public
nuisance. such as the city might be war
rantcd i'm interfering with, and
nuisance which affected but a single in
divdual or a limited number of ihdi-
vidualS, where the powers of Council
might be questionable. Col. White
quoted from Wood ON "NuiSanceS," the
following rule:
Authority conferred by an ordinance of
the city is 40 prohibition against liability
for damages resulting from the destruction
Of property upon the grounds that II IS
nuisance. unless its unlawful character is
clearly established Therefore, except in
cases Of great public emergency, where the
emergency may safely be regarded as so
strong as to justify extraordinary meas
ures upon the ground of paramount neces-
sitv. or where the use of the property com
planned Of is so clearly a nuisance as TO
leave no room for doubt upon the subject,
il is the better course TO secure an adludl-
cation from the Courts, before proceeding
10 abate it,
With these and other premises to
guide him. Col. White proceeded a. fol-
lOwS:-
That the injury complained of is NUS
ance 10 the individuals residing IN that par
ticular locality in the city. it seems To me IS
too clearly demonstrated by the testimony
given before your committee, 10 admit OF
dispute IF this is true. then those individ-
uals or any of them, have right 10 apply
10 the Courts Of the land, to protect their
IlAAAH WA IANlAA ~ tA4AN AAANAA kN+F'N.-t- 80
fort. Now, if Council should proceed TO
abate the nuisance in question, what would
result:
"l Private property would be destroyed.
- The operation of u street railway,
which Council has, because IL was recog-
nizcd as a public use, recognized by an or
dinance. would be materially affected.
- II would be somewhat questionable
whether thenuisance abated, tended to the
common injury. or was common annoy
ance 10 the public al large, or whether 1t
was only private nuisance affecting the
rights Of those who reside in the particular
locality.
II The nuisance would be abated At the
risk of the city. If improperly abated in
the Judgment of the Court, the city would
be liable for the damages which might re-
suit therefr0m. and could be made TO make
restitution TO all who suffered injury by
the act.
-. Those residing in the ncighborhood,
who are materially and particularly In
ured. who can ask the Courts TO redress
the wrongs they suffered, would be those
who would be particularly benefited by
such an abatement
1T seems to me. therefore, that this matter
is not "a case of such great public emergency
as would justify Council. under the gen
eral legislative authority. TO abate or re
move nuisances,' in passing an ordinance
10 abate and remove the nuisance IN ques-
ton.
1t may be that Council would have the
power TO regulate the use OF the
machinery i'm question: but when Council
comes 10 enforce an ordinance inihctlng
penalties, it might meet with somewhat
the same difficulties which surround the
ouestions of the power TO abate and destroy
the nuisance complained Of
81. The operation Of the street railroad,
and its public use might be more or less
affected by such an ordinance.
- 1t would be done at the risk OF the
city. and the city could be sued for all dam
ages consequent upon the act III case the
city was clearly wrong.
% Does this nuisance. which material
IL affects those who reside iIr the lmmedl-
ate neighborhood, belong 10 that class OF
nuisances which the city has the authority
10 regulate under the provisions Of the act
of the Legislature referred to.
An attempt to regulate might be attended
with troublesome questions. and perhaps
suits TO test the validity of the ordinance,
as well as possible suits for damages, ana
the Courts Of the land being open 10 hear
the complaints of those who are materially
wronged. the proper course, ii seems TO me
would be TO leave these matters to the ad-
Indication of the Courts.
When the reading of the opinion
was concluded, there was general dis
cuSSion upon the subject, during which
il was stated the city wOuld do well TO
secure a conference between the Com
mittec and the Board of Directors Of the
Electrical Company, to the end that an
amicable arrangement might be reached.
Mr. Tracy said II was the desire OF the
citizens of the neighborhood to have the
power house removed, and he was au-
thorizcd TO say that responsible gen
tlcman stood ready TO give $4,000 for
the property within twcnty-four hours.
He suggested that a subcommittee have
a conference with the Directors OF the
COMPANY and see what could be- done.
This was agreed to by the Committee.
and McSsrS Tracy. Bailey and Filing
ham were appointed as such Sub-com-
mittcc. the Chairman Mr. Farrell, being
afterwards added
The Board of Directors of the Com
pany will be at once notified, and a
meeting will likely take place next
Saturday afternoon ut the Office Of the
Company.
Before the Committee adjourned citi-
zcnS present extended an invitation To
the members Of Council to visit their
residences and feel the vibration com
planned of for themselves.
Wall Paper. Wall Paper!