Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1894-04-13
ARGUMENTS Heard
IN THg INJUNCTION PROCEEDINGS AGAINST
THE ISLAND FERRY.
The Answer Of ii. Ferry Company Read, and
Speeches Made by Attorneys Upon Both
Sides Decision Reserved.

the Circuit Court. the application-for
Injunction by the Wheeling and Bel
mont Bridge Company, against the
Wheeling Island Ferry and Packet
Company, was argued.
Court convened at $3.50 O'Clock. At
that hour Messrs. w. II. Hearne and j.
B. Sommerville read their answer TO
the declaration of the Bridge Company,
which was fled on Wednesday. This
consumed about an hour. The Judge
limited the speeches to three hours on
each side.
Mr.. A. ]. Clarke opened the argu-
ment for the bridge company. He made
the point that the claim set up by the
ferry company that the plaintiff had
| abandoned it's right TO the ferry prlvi-
leges, was not sufficiently established
in the answer OF the ferry company,
ann he characterized the claim as alb
surd. The w. & B. Bridge Company
acquired the right and interest, not for
its own use, but to prevent infringe
ment by other parties. he stated that
| the rights granted In the deeds by
/ Daniel Zane and others, are perpetual,
and the plaintiff, therefore, is legally in
possession Of the interest which it
claims. BE admitted that the city Sc
cured possession Of Ohio street, but 1t
was established by the Courts that the
foot OF the street could not be used as a
| ferry landing. The Bridge Company
claims only such interest as 1t is entitled
| to under the statute, and the deeds and
other proceedings with the city did not
destroy any rights or claims in the
ground claimed by the plaintiff in its
declaration. The city has no right TO
grant ferry privileges, although its
right to establish and maintain wharVes
is conceded.
Mr.. Clarke, in concluding specified
three reasons which should operate in
favor of the injunction asked for by the
Bridge Company. First, plaintiffs
rights had been iEfringed upon without
its consent, or without compensation.
Second, the plaintiffs bill alleges in
solvency, TO which the answer OF de-
| PENDANTS made no reply. Third, the
continued operation Of the ferry works
a constant and irreparable injury to the
plaintiff.
When Mr.. Clarke concluded, Court
took a recess until 2 p. M, when Mr..
W. H. Hearne made his argument for
| the defendant. he quoted the law
prior to 1s47, in which the right was
granted to operate ferries at places
therein named, and followed this by
quotations from the statutes, combining
the operation OF corporation TO the
purposes mentioned In its charter. de
stated that the Bridge Company claimed
to have purchased the right OF ferry
| company, and that ii also purchased
what the ferry company did not pos
sess. The dead from Daniel Zane
con veyed only the ground upon which
| the western abutment OF the plaintiffs
bridge Is built. II the Legislature OF
the State OF Virginia gave the plaintiff
any rights or privileges, such rights or
privileges were given to be used, and
| not to be laid away indefinitely and then
to be brought forward on such occasions
as the present. The situation was a
peculiar one, In that the bridge compa-
ny claims ferry rights and privileges,
and claims but one landing, and that on
the Island shore The objection might
be raised, in the event that plaintiff
attempted TO operate ferry, that IL had
no right to do so under its charter. II
the plaintiff ever did nave the rights
claimed in its bill OF declarations, they
were forfeited, because plaintiff made
no pretense of using them. Mr..
! Hearne quoted authorities to show
| that the County Commissioners
really possessed the right to grant fer
ry privileges to the defendant. 1t was
| the only official body, in fact, which
possessed such power and authori ~.
Mr. Hearne further stated that the
two bridge companies entered into an
illegal and unjust combination to estab'
lish eztortionate rates OF toll TO citizens
OF the Island. The Island citizens had
formed company and purchased and
placed in operation ferry, upon which
just and equitable toll rates were
charged.
Mr.. Hearne spoke about an hour and
| fifteen minutes, and was followed by
Hon. ]. B. Sommervlle, one OF the at
torneys for the ferry company. Mr.
Sommerville argued that the plaintiff.
under it's charter, had no authority TO
ACQUIRE either the ferry franchise or
easement which II claimed; and II 1t
had such right TO acquire, and
did acquire such interest, the
| franchise, so far at least as its exclusive
! feature goes, was extingulshed by an
act OF the Legislature In 1882, as decld-
ed In the case Of w. e. B. Il. Co. VS.. W.
B. Co. AS TO the easement claimed by
the defendant, il IL ever did acquire II,
it was abandoned-fr by purchasing
part OF the land in fee simple; second,
by giving a landing place on this side to
the city and allowing 1t TO pave and use
1t asa public wharf; third, by allowing
the Wheeling Bridge Company TO con-
denim q portion OF the plalntitrs land
without asserting or claiming an ease
ment; fourth, by permitting the city OF
Wheeling to open Ohio street through
! land in which easement is claimed BY
! the plaintiff.
Even II plaintiff die not abandon
whatever right or interest 1t may have
| possessed, continued Mr.. Sommerville,
| the opening Of Ohio street by the city
nearly eighteen years ago, and the
| holding by it adversely TO the plaintiff
claim ever since, gave the city an abso-
lutte title to occupy the land by Ohio
street; and a right to grant the ferry
company the privilege OF using the foot
| OF said street as q landing.
In conclusion, Mr.. somnervllle made
the point that the two bridge compG-
nies having combined 70 sxtort from
citizens of the Seventh ward unjust
and unreasonable toll rates, and having
failed to accomplish their purpose be-
| o,,sa tho fairy was started: that the