The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-05-10
THE RAMS HORN CASE
lrgument for the City Before
the Supreme Court.
,ue RIGHT TO CHANGE GRADES.
r,,,.e Power Over Streets Asserted end
Claim Made That Railroad Fran.
chise IL Defective.

olympia, May Especial. Tine cele-
b,s,ed rams horn right-of-way case from
s.a,,le was argued before the supreme
h eOur. today. and decision upon it may be
,,yec.ed within a few weeks. The
hjet for the city OF Seattle was filed
" Burke, Shepard & Woods. the special
.t,orneys retained for the purpose, ana
corporation Counsel Donworth, and the
use vas argued by A. F. Burieigh on be-
bal. Of the Columbia & Puget Sound ana
lie Northern Pacific railroads.
The brief for the city is mainly recapi-
;.lation Of the history OF the case ana OF
he testimony taken in the superior court.
twill be remembered that the Columbia
spaget Sound road had a right-of-way
-snninr close inside the meander line
,-.nted by tie city on March IA, 1882, to
re Seattle & Walla Waila railroad. Tho
racks on this right-of-way were burned
n the great fire of June s, 1889, and when
me company prepared to rebuild them,
the CITY proposed that, If it would
abandon the old right-of-way. . new right
of.way would be granted on the newly es-
tab.ished Railroad avenue, the city desir-
ins 10 establish West street without any
,ailro.d crossings and to concentrate all
the railroads on one street created tor the
purpose. The city claimed that the rail-
roai company had agreed to this proposal,
bu, this was denied. The city, in order to
make it imprac;icable to rebuild the tracks
on the old right-of-way, raised the grades
Of Columbia and the other cross streets.
Italso extended Columbia street to the
YES, side of the new Railroad avenue &C
cording 10 grant OF the necessary land
previously made by the Seattle, Lake
shore Il Eastern road. On August II,
$50 The city obtained from the United
States court an order restraining the rail-
road company from rebuilding its tracks
across Coiunba street AS the Puget Sound
Shore Railroad Company, which has since
been absorbed by the Northern Pacific un-
der the name of the Northern Pacific Il
Puget Sound Shore Railroad Com
rany, had the joint use of
the right-of-way and was also
attempting 10 rebuild its tracks. it was
made party defendant to the case. The
Federal court refused on October S, 1889,
to dissolve the restraining order. The
case was transferred to the superior court
berg on December =. 1890, and was being
argued on December %. when an amicable
agreement was made by the attorneys and
the case dismissed, and the same night the
railroad companies began to lay track
across Columbia street. They were
stopped by the city and the track laid Was
torn up. The stipulation was set aside.
Judgment of dismissal@ vacated and the
case reinstated on December 26. Judge
Liehtenberg rendered his decision on
December "a, 1891, vacating the restrain
Ing order, but requiring that the railroad
companies should not disturb the existing
condition of things pending final adjudi-
cation of the dispute In the supreme
court.
The argument of the case in the city's
irief begins with definition of the points
Il controversy. IL alleges that the claim
Of the city that Columbia street has been
Il ALLY extended westward from West
sreet is admitted by the railroads failure
10 answer il, SO that the existence of a
street at the point of the disputed crossing
sands as an admitted fact The material
r.stions in dispute are therefore these:
u sether the grade of Columbia street at
the point in dispute has been raised by
ely ord nance; whether the railroad COM
panies mad earned and retained the fran
Chse to cross the street on its right-of-
ysy; whether the railroad companies had
nor so far assented to the rectification of
,he lines of the railroads along the water
font through the establis hment of Rail-
road avenue and the change in the grades
Of the cross streets as to be estopped from
oblecting to the raising of the grade of Co
llmba street. On this last point the ar
g1ment says:
This new ISSUE II such IL may he called. was
,sei by averments In the sundry affidsvits
lied IN support of and in opposition to the In
junction motions; but on the final hearing no
= evidence bearing upon IL was introduced stili,
a. those hisytts became part OF the record
psoIer, by the settlement OF a bill of exception
upon the granting OF the plaintiffs motion for
al injunction. we have thought IL proper to
pint some of the affiavik, aud TO state the
substance of the others. ia this brief. SO that
tie court eau readily gather the showing facts
bearing on this claim of estoppeL We submit.
inst as those facts were thus set forth in papers
laa' tie defendants chos, to bring into the rec
Oh, and Is The court below passed upon them,
sats court. even though il cannot treat them
As II controlling weight in reaching its de-
eisioa, may At east consider them affecting
he equitable standing OF the respective parties.
Foai making this sugge, tion, IL Is not our
R-pase 10 discuss the question of estoppcl.
It's then contended that after tacitIy
admitting that the land in dispute is a
street The railroads contested its character
s. such. They h al also tried to establish
'Aal the new grade was not required by
considerations of practicability or desira-
bisiy and that the grades OF other streets
h4f been changed 10 heights differing
I'm the wharf level and the former rail-
foat grade and from one another with an
evident design 10 destroy their right-oi-
wy The questions of fact and law in
vowed IN the case are then stated As prop
6 lions IS follows:
Ei''i Inc existence Of a public street. par, of
'e.-'Aha street. comprising the place across
No.e4 az Was soUgt.t 10 enlofn the defendants
ton building their railroad track, should lie
1.sa a. admitted on the record.
Seee-l y tho existence OF street at that
see does uot stand rs an admitted fact. at ali
sF-tIs tie evidence Slows its existence, % by
'9'ee OF 'l's plat II rerrys tniri addition, aud
a." O. ty force of user
laltl-Tle CIV of Seattle had the right 10
Smaislu AID control public street on the
'ag'e land ar.or t. the erection of the territory
N"ssaiuEton into state.
f'urth-iae defendants are not IN position
- contest such right OF the city.
Faia-Ihe passage sn6 publication OF ordi-
@a1ee NJ LII OF the city, establishing h igher
s'a-e ~ NouGbi street after the destruction
'Ae Defendants railroad by hrc. were duly
rsovel
>xth-ortinance No. - tas amended ty or
s~@Ace No. 49,, purporitng 10 grant franchise
" Vl'ld and operate railroad. Is void. by rCa-
- o. the nou-eI stence If the oregon & Trans