The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-07
STREET BY USER.
= Railroads Cannot Cross
Columbia Street.
..us HORN CASE HEARD AGAIN.
Jacobs Now Defends the City's
s.1eresfs-New Suits Filed
Court Notes-Blotter.

- e~5ebrated rams horn right-of-way case,
- ~as brought TO such sudden terrnina-
& eoreemens OF counsel two weeks ago and
a ,.;nsfafed In court, came up for hearing
~. Yesterday in Judge Lichtenberg's court,
- t.ken up right where il was dropped
~ attorneys In the case who appeared in
Yesterday were Corporation Counsel
~. n behalf of the city, and Mr. J. B. Met.
~ M. A. 5. Burleigh and Colonel J. C..
80. ou Part OF the railroads When the case
4. compromised Mr.. Burleigh was making his
~ry.ert. and yesterday he resumed the unfin-
~ argument, and read great number of
-scrifjes TO show the right of the railroads
a. these streets, secured by franchise and
-,rd bs city ordinance, could not be wrest-
ANN them. He held the establishment of
=. new grade was practically to destroy the
zan and franchise OF the road, and that the city
"A "a power to impair the rights of property by
.tire the grade inaccessible; that this fran
- which the city by its injunction seeks to
ssrov a worth fully 81 0oo, 900, and that Eastern
s,itsi had been invested in railroad securities
4 sba strength of the franchises guaranteed
- companies by this city ordinance He
Isnfd that the railroad companies had in
- large sums OF money on the strength of
| 4. lnuehise granting them the right to build a
- oyer this right-of-way, and the city cannot
- IL contract or wipe out these rights; that
~ civ could not interfere with the vested
sShts Of the railroads, and that their right TO
S nee Of this crossing is paramount, and can
. e n taken away He said that with this new
srde the only way 20 get through Columbia
Sses would be to tunnel through.
jrdrs Jacobs suggested that they might cut a
sesual through.
SsioneI HaiIies followed briefly, and charged
AT the city had impaired the obligations OF a
snfsscf, that this franchise is q contract and
A. railroads had done what was required of
Am. but instead of complying with its part of
| e contract the city had passed an ordinance
| Inparing Its obligations to do so. He said that
/ ~ missing of the grade of Columbia street is
n Of q system of grades that were agreed upon
| render II Impossible to construct road over
A risht-of-way, and that the franchise was
ihreicre practically destroyed. He contended
| III there is perpetual inhibition against the
dfys grading or changing the grade of its streets
3 such manner as TO interfere with the rights
dpFuperty.
erpest appeal for the city rights, and claimed
h1tif the grant OF the right-of-way was not
eFes streets or alleys IL was imperative, and If
De ordinance had any effect at all IL gave the
nilrcads authority to build over certain streets
I'D alleys, but over no other property, and the
hghtofway over other property which was not
osned BY the city would have to be acquired by
cher methods. He said 1.-THE railway COM
nnies claim that part Of this Columbia street
mht-or-way Is not street. Ii it is not a street
hghts could not epply TO 1t, but claim 1t is a
e1eef By user. The land below high water
mark belonged by state sovereignty to the state.
md Yesler and other property owners had only
i've such rights as they possessed. II the rail-
roads have no title TO that land derived from the
sbufting owners they have no position on which
b stand.
d contend that this is a street 1t was plated
u street By the AUDITING owners and by the
oYersti0n OF law Ii becomes such. There was no
city ordnance extending Columbus street from
high water mark TO low water mark 1t seems
hhave been overlooked, but IL became a street
BY user. The city exercised claim over that
portion OF the extension of the incline for the
use OF engines of the city for protection against
fire and the city claimed dominion over il, but
heeity claimed no right TO use private property
nom high water to the bay, There was another
Kind Of user by which this right was acquired.
Small boats and crafts used this incline as pub
Gc way. On these two grounds VIC claim that
M 10 portion OF the street.
7 remember when over 2,00o people assembled
- fesler's pavilion to manufacture public SEN
ument In favor of the railway companies. / was
ne only one TO vote against granting this fran
elise and the next evening this ordinance was
passed.
"The city never changed the grade of these
slreets to prevent the railways from crossing,
but the changes were made for the sake of pub
nc convenience and for public necessity. IL
wn for these reasons the grade was raised, and
lao not believe II was intended 10 deprive any
BODY or corporation OF any rights. The city
has the power to change the grade of its streets
whenever necessary, but it cannot divest itself
O That power. 1t was given for public good,
ana Is inalienable. This property is devoted to
pubic use as street, and cannot, without ex-
press legislation on the subject, be diverted
nom that use
"ihe city has extended its streets TO the har-
DoF lines, and am satisfied that there is street
Mere, and If the railways want to cross Column
na street they must conform to the established
trade. And am satisfied that the city could
not grant them the right over any land not
part OF street or alley"
Judge Lichtenberg has taken the case under
nylseinent, and as he has about q hundred
Winorites to examine on the subject, il win be
some time before the case is decided