Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-11-20
The Court of Appeals Suggests Il
legal Occupancy of an Avenue.
JUSTICE MORRIS POINTS OUT REMEDY
How the Baltimore and Potomac
Company Has Trespassed.
PUBLIC RIGHTS IGNORED

| more and Potomac Railroad Company,
really the Pennsylvania Railroad Company,
| has occupied many of the streets Of the
| city in South Washington to the exclusion
| Of the rights Of not only the citizens Of
| the city, but also to the exclusion OF the
rights Of the District government. Origi-
| nally given but the right to enter the city
| and to use but certain portions OF the
| streets and avenues on which the tracks OF
| the company were laid, that right has
yearly been encroached upon and enlarged
until now there seems to be no one bold
| enough to dispute the claims OF the COM
pany to take possession of and use for
| its exclusive benefit any and all portions
| of the streets and avenues OF the city
| which the company desires.
Year by year the people Of Washington,
especially those living or doing business In
South Washington, have protested In Con-
| gress, in the courts and before the District
Commissioners against such usurpation on
| the part of the lailI DAD company, but their
| protests have beer in vain, and the people
| had about concluded that the crushing to
death snd cutting to pieces of citizens, the
confiscation of streets and parks and the
destruction Of business not In the interests
| of the company would go on until the COM
paay itself tired, or there were no more
ruin to complete.
| At last, however, there is born hope
| that the day will soon come when all this
will be changed. a day when this corpora
| ton will be taught that the majesty or the
law is even greater than overriding might,
and that there are rights Of the people and
the government Of the District of Columbia
which 1t must and shall respect and obey.
True it Is that this hope springs from
merely an intimation of q court OF law,
but the intimation seems SO full Of promise
| that the people of the District may well
congratulate themselves and found therein
/ n halt hnf in a
time the company's hitherto unchecked
march of destruction will be at an end.
The intimation above referred to was
given by Mr.. Justice Morris, in an opin-
ion written by him in the case of j. Har-
rison Johnson against the Baltimore and
Potomac Railroad Company, filed in the
Court Of Appeals after the adjournment
of the court yesterday afternoon. Says
| the justice: "The question of the right of
the railroad company to occupy Maryland
| avenue and the public space between 9Th
and 9th streets in the manner in which
1t is here shown to occupy 1t. Is one that
is open to grave doubt 1t Is a question
that should be settled in some appropriate
proceeding instituted for the purpose"
/ Justice Morris explains that in the suit
in question such a case was not presented
as warranted the court in undertaking
to then settle the question. and, conse-
quently, the court desires it understood
that it expresses no opinion upon 1t.
The Basis Of the IntimatiOn.
The case decided by the Court Of Appeals
in the opinion written by Mr.. Justice Nor
ris was a suit in equity instituted by Mr..
johnson to enjoin the railroad company
from the maintenance and use Of certain
railroad tracks and switches on Maryland
avenue, adjacent to Mr.. Johnson's resi-
dence, at the corner Of Sth and c streets
southwest. He had erected other dwellings
Immediately adjoining fronting on open
space caused by the intersection OF Mary
land and Virginia avenues. This space or
reservation had been partly improved by
the United States, and Mr.. Johnson claim
ed that 1t would have been wholly improv-
ed If it had not been for the encroachment
upon 1T and its usurpation by the railroad
company, without warrant OF law, alleged
Mr. Johnson. In expectation Of the space
eventually being wholly improved. Mr..
johnson says he was induced to build, in
1878, at a cost Of $l1,COO
The burden Of Mr.. Johnson's grievance.
explains Mr.. Justice Morris, 'is three-fold.
l. That the railroad company has no war
rant of law to enter the open space desfg-
mated as reservation No lol, or to occupy
1t In any manner or for any purpose. 2
That, even If 1T has the right to occupy
the space it has no right to do so with
more than two tracks. 3. That 1t has no
warrant of law for the use of the track
on Maryland avenue between 9th and 9th
streets, and especially for the use of steam
power thereon. And the special damage
which he assigns as accruing to himself
from this alleged unlawful obstruction of
the public highway and the public prop
erty by the appellate the railroad COM
pany) Is also Of three-fold character.
1. Occasional detention in his attempts to
cross the highway. 2 The annoyance oc-
casoned by the sound and noise emanating
from the passing trains, and which are al
legged to disturb himself and family, and 3.
The dust, smoke cinders, SCOT and disa-
greeable odors that are carried from the
passing engines into his residence, to the
injury Of his residence, furniture and
ahnl1 off, Nfc
The Plaintiff Asked for an Injunction.
Mr. johnson therefore prayed the Equity
Court, by injunction, to restrain the rail-
road company from the unlawful occupa-
ton Of the reservation and Of Maryland
avenue, and for the abatement Of the
tracks and switches thereon as a nuisance.
The company denied there is any such
reservation as No. 1O1, and averred that
it's occupation of the streets, avenues and
the open space in question was in accord
ance with it's rights under its charter and
subsequent legislative enactments. 1t de-
MED that there was sny unnecessary noise,
dust, smoke, etc. end claimed to use the
tracks on Maryland avenue under an ar
rangement with the Alexandria and WASH
ington Railroad Company.
In voicing the opinion of the Court of
Appeals the Equity Court having decided
against Mr.. Johnson, Mr.. Justice Morris
explains that the burden of the complaint
Il
railroad company of the open space and Of
Maryland avenue.
There can be no question, says Mr.. JUS
tice Morris, of the power OF court Of
equity to restrain the commission of nui-
sances even by a railroad company under
a pretense Of service to the public, and he
goes on to say that # the occupancy by
the company was in plain and palpable
violation of law, or If it's conduct Of it's
operations, lawful or unlawful, was such
as to constitute a plain and papabie nui-
sance, demanding urgent action ID save
the appellant CMr. Johrson) from irremedi-
able injury, a writ Of injunction would be
an eminently proper remedy, matter
how great the resulting Inconvenience
might be, either to the appellee Qhe COM
pany) or even to the public e.
The Remedy Suggested.
Quoting a decision of the United States
Supreme Court, and suggesting suit at
law for damages, Mr.. Justice Morris says
when the right title to the place in
controversy, or to do the act complained of,
is, as here, doubtful, and especially denied
in the answer, no permanent or perpetual
injunction will usually be granted until
such trial at law is had, settling the con-
tAstAd rights and interests of the nartiA."