Telegram-herald., 1891-06-28

the interruption Of their business dur
ing the laying OF the tEalk or ~ TIE
operation OF the defendants iDe over
their road bed. aud see 10 ressen vny
such compensation may BOT Be awarded
IN thissuit- This VAS the course adopted
~ Mr.. Justice Brewer IN the case Of tue
Omaha Horse Railway Company We.
Cattle Tramway 80 Fed. Rep. S24), and
| see no objection 10 H. j tDlns that
the order n this case should be grant
ing preliminary injunction unless the
defendant within thirty DAYS execute
bond with sufficient sufetles IN the SUN
Of $40 coo, OF suen other sum as the
district judge may nx, 70 answer any
damages that may be oceasioned by the
construction and operation OF the de-
PENDANTS road"
| Following - the dissenting
O9inioa of Jsdse sessrens.
with great Difference, | am unable
TO reach the conclusion arrived IL ny
the presiding justice On this motion,
and Will state briefly the grounds OF
my dissent. In my opinion when the
compliments accepted the franchise
conferred by the city through the oFigs-
nal ordinances. took possession OF the
street, laid It's tracks therein and
continued 10 occupy the space which 1t
had taken by the permission Of the city
and Was rendering the service for which
the franchise was given, had acquired
an exclusive right of acceptatlon Of It's
road bed and supeTstructure anu the
space occupied thereby as against any
other street car line. Its right OF oc-
ms mr. hsar m hf.
airy and primary Uses as II highway, but
II was exclusive as against another COM
pany who would attempt TO come IN
and permanently occupy the room
already taken by compliments for the
same uses. The only limitations to tins
exclusive right was that created by the
reservation in the ordinance OF the
privilege OF permitting crossings over
the complainants lines. II is clear that
subject to that right, 1t was intended
thatthe compIainants possession should
be exclusive. Ii can not, IN my opinion,
be said in any just sense, that what
the Common Council have now at
tempted 10 authorize and the defend
| ants propose TO accomplish is cross
ing. Running lcngthwise i'll street is
no: crossing IL. In the present case no
street is crossed. In permitting cross
ings, the Common Council exercise q
! discretion. but they have no discretion
winch is q warrant for taking away
another's right under a pretence OF
calling thing q crossing which Is not
such. 1t matters not that the proposed
invasion is for q short distance.
The right is as complete in respect of a
part as of the whole, and q party may
not be stripped of its right by pieoemeal.
The jurisdiction OF the court to prevent
trespass which it is threatened to
make continuous, and where the dam
ages will be difficulty Of ascertainment,
it is we'll settled and of frequent and
undoubted application to such cases as
this. Nor do l think there is any req
son why the court should withhold its
Injunction until the final hearing.
The fact essential to the elimination of
the right Is in controversy. The whole
matter is manifest on the face Of the
ordinance, and the expressed purpose
| of the defendant to proceed under 1t.
In my opinion, therefore, the COM
plainant - entitled to the protection of
the court, and an injunction should
issue. If there is any public necessity
for appropriating = right already ac-
| quired by complainant, it stands upon
the came ground as any other public
necessity. 1t can be satisfied only by
making compensation for the property
| taken."