Evening star. [volume] (Washington, D.C.) 1854-1972, 1891-05-26

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timber, or the removal Of coal, though the tit .
:. trein.sss To an ..taganon.' The author
lily OF the court 10 exercised in such cases
through its preventive writ to preserve the
property from destruction pending legal pro-
eeedings for the determination Of the title
Supposing the government occupying no higher
ground here .thania private party would hold
In the case cited, its right 70 the pre-
yentive remedy Of injunction to restrain
the serious injury threatened to the prop
erty while the litigation is pending in
the condemnation proceedings would seem
to be clearly within the principle announced
by the Supreme Court as that now governing
courts OF equity. According to the decision
OF the Supreme Court in los U. s.. Goa. Ken
nedy agt indianapolis, if the statute before us,
instead OF allowing the United States To take
possession of the property until the compensa-
non had been paid or proffered, had declared
that the government might enter upon and
use 1t as soon Is the property had been appro-
pristed by law for the public use, such entry
and use would not have been against the
provisions q the Constitution. In speak
ing OF thas decision in Cherokee
nation agt. Kansas r. r. Co.. 1875 L. s.. p. $50
that court, citing the provision OF the constitu-
aon OF Indiana that mo mans property shall
DC taken or applied to public use
without a just Compensation being made there
ior, which 1t declares is substantially the pro-
vision found in the national Constitution, saws:
This court there said that in principle and au-
thorlty the rule Is that under such constitution
as that OF Indiana the right TO enter upon and use
the properly Is complete soon as the prop
erty is actually appropriated under the author
lty OF law Tor public use. but that the title
does not pass from the owner without his con-
sent until just compensation has been made to
him.
OTHER QUESTIONS DISPOSED OF.
Judge Hagner then referred to other ques-
tions raised against the bill. 1t was denied. he
xbox
land for q park, as the power of condemnation
could be exerted only for clearly necessary
purposes, and park was not a neces-
sity. Judge Hagner quoted decisions to
show that condemnation could be resorted
to for objects Of public convenience,
utility or welfare, and of this the legislature
was to be the judge. The right of the United
In the courts opinion clear. He discussed tho
various objections to the form of a bill made
In motion to quash and overruled the motion.
AS to the objection to the bill made on the
part OF the LOG defendants who the bill did not
allege even threatened to injure their prop
erty, the judge said that the complainant had
no right to implead them and directed that as
to them the bill should be dismissed with costs.
As to the case of Messrs. Shoemaker and
Beall, however, he said the case was different.
With claim of right each had committed a
wrong. MIR. Shoemakers excuses, the court
said, creditable as they may be to him person
ally, IN many respects are practically admis-
sions that he has been. according to his own
taste and discretion, cutting such trees as he
saw MT to cut with view to rendering the rest
OF his lands more valuable, and this, the court
thinks. he has no right to do under the circum-
stances.
CAN STILL CUT GRASS AND GATHER VEGETABLES.
"Of course" said the judge. mo such con-
sequences could follow the allowance of the in
junction as were pictured by the defendants
counsel. The writ would not go in the
sweeping form asked for in the second
prayer Of the bill Parties could still cut
their grass and gather their vegetables, and
visit their land and live on it if they see 1t,
but to deface or injure or destroy the trees or
shrubs or underground in such manner rs any
intelligent person would understand would tend
to the injury of the inheritance as il is some
times expressed or as the Supreme Court said in
Ehradt agt- Boards, would go to the destruc-
ton of the substance of the estate is what is to
be forbidden. 1t is not to be doubted that this
expression Of the opinion of the court will be
taken by all the property holders as a sufficient
admonition, rendering unnecessary any similar
action in the future, which would await any
one who should commit similar acts before the
close OF the condemnation proceedings"
The court overruled the various objections on
constitutional grounds as to the methods pro-
vided for securing the property.
AN APPEAL NOTED.
Mr.. T. A. Lambert, as counsel for Mr. Shoe
maker. noted an appeal.
Mr.. Perry called attention to the injunction
case brought by Watson to restrain the COM
mission and said that he would consent to post
pone the hearing if Mr.. Lambert, as counsel
for Mr.. Watson, would assure him that nothing
would be done pending the hearing tending to
injure or despoil the property. This Mr.. Lam
bert consented to and the hearing was post
poned.
MRS. TRUEsDELL's GOLD MINE.
Mr.. Coleman. representing Mrs. Truesdell,
on whose land the owner represents are veins
of gold, presented ar order. which was granted,
Mr.. Perry asserting. This permits Mrs. Trues-
dell to take steps to develop her gold mine.