The morning call., 1893-08-22
THE DECISION.

IhE DECISION.
Judge Joseph McKenna. in the United
States Circuit Court. rendered an oral de-
cision yesterday on the motion of the
Southern Pacific for a preliminary injunc-
tiOn against the city Of Oakland, Mayor
Pardee, the City Council and the city Off
cials. Several attorneys for both sides
were present, and The courtroom was pretty
we'll filled.
There i, some difference of opinion as to
the effect of the decision. Apparently it
simply leaves the case as it was upon the
ground that to take action either way upon
the motion would anticipate or forejudge
the case; really, it refuses the demand of
the Southern Pacific, though it continues
the force of the restraining order. AS.
however, it so far modifies the restraining
order as not to allow the railroad company
to go ahead and restore its fences, tracks
and other distractions, the decision may
be said to be partial victory for Oakland.
The court leaves the question OF title,
ownership and possession for ultimate
adjudication. The decision in full is as
follows:
> precise and detailed definition of the
issues as to title is not necessary. Gener-
ally 1t may be said that the plaintiff alleges
title and the confirmation of this title by
judgment for the premises obtained by c.
p. Huntington against the city Of Oakland
In this court, and alleges certain acts of en-
croachment done and others threatened.
The defendants deny the title of the
plaintiff and the judgment, and assert title
in the city Of Oakland. and the dedication
besides OF the premises as a public high
way, and justify the acts of encroachment
by their authority and duty as public
officers.
These titles aud rights OF the parties re-
spectively remain TO be established. But
the plaintiff alleges that it entered into
possession of the whole of said premises
on the 1st day of January, 1890. add ever
since has been and still is in possession
thereof as common carrier by railroad,
and engaged in the transportation of State
and interstate commerce. That in con-
nection with its lines of railroad, and as an
adjunct and necessary appurtenaDce
thereto and for the purpose of maintain
ing communication between portions of it's
road situated in San Francisco and the
county Of Alameda, it operates lines of
steamers, one Of them running into the
bSludI1 VI Odu hubOuIO anu iduulHS Ut d
wharf or slip upon the said premises
that upon the premises there are also rail-
road tracks, warehouses, etc, all of which,
with the personal property containe ed in
them, were and are used in and are neces-
sary in the prosecution of its business.
aud from the date last aforesaid until the
9th day Of July. 1898, it was quietly in the
possession of all of said premises and the
improvements and fixtures appurtenant
thereto, and used and operated the same
for the purpose aforesaid, and that all of
it had been continuously. by plaintiff and
its predecessors in interest. used for like
purposes for period aggregating twenty
three years prior TO January, 1890.
The answer admits that plaintiff went
into possession on the first day of January,
$780, and is a common carrier, as it alleges,
and has on the premises the structures
alleged. but denies that the tracks, Offices
or structures were or are necessary to the
prosecution OF its business. The defend
ants also admit that the plaintiff was
quietly in possession, but deny" q quote
literally "that all the property and prem
ises aforesaid have been continuously by
the complainant or its predecessors in
twenty-three years"
BY well-known rule of the construction
OF pleadings this denial puts in issue the
exact period of possession only. and it Is
consistent with a possession for period
aggregating twenty-five years, long
time. and pending an inquiry as to its
rightfulness or wrongfulness, entities the
plaintiff 10 protection. If the acts of the
defendant may be restrained by court of
equity. Northern Pacific Railroad Com
pany VS.. City OF Spokane. 81 Federal Re-
porter, 42S).
AS to these acts the bill alleges
that the defendants are the Mayor and
City Council of Oakland and its Superin-
tendent of Streets. respectively; that
the defendants. accompanied by large
body of men, with great violence and in a
rlotous manner. entered into and upon
the premises and tore up certain OF the
railroad tracks thereon, and pulled down
certain Of the fences and structures
thereon.
And plaintiff also alleges that the de-
PENDANTS will continue to disturb the pos
session of the plaintiff, and tear up and
remove the remaining tracks and struc-
lures, and interfere with the replacement
OF those renewed. and prevent plaintiff
from exercising its franchises. There is
also an al egation of threat of defend
ants as Mayor ana Council to pass orders
To enable the Davie Ferry and Transpor-
tation Company to take possession of the
property. and of threats Of arrest of plain
tiff's servants.
The answer of defendant is:
That the possession Of plaintiff was that