Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1895-05-31
The ChnnceIIor's Decision.

The ChRncelIOr's Decision.
Levi X. Fuller and others VS.. the Brattle-
boro Street Railroad company, and the
Estey Organ company VS.. the same: In
chancery, Windham county.
These causes came on to be heard before
me at chambers at Montpelier on May "a,
1898 on motions of the orators for iniunc-
tions to restrain the defendant company
from building and operating an electric
street railroad in the village of Brattleboro
and thence to West Brattleboro, as pro-
posed by said company, and was heard on
bills and answers, and argued by counsel.
Therefore and thereupon, on consideration
thereof it is considered that the defend
ants charter authorizes it to use electricity
as a motive power, and to build and OPP
crate its road in the village of Bratteboro
on the route proposed; but if not, it is con-
sidered that want of authority in this be-
half is not available to the orators as
ground for iniunctions, but that they must
stand for such relief on threatened inva-
sion of their property rights, if any they
have.
1t is also considered that the pleadings
disclose a substantial compliance on the
part of the defendant with the act of 1894
in the filing of statements and the obtain
ing of permission of the requisite local
authorities for building and operating its
road in the streets and highways mentioned
in the statements and the agreement of
May :, set out in the answer; but if not
it is considered that the orators cannot
take advantage of such noncompliance as
ground for injunctions any more than they
can take advantage of want of charter au-
thority to use electricity as a motive power
and TO construct its roads in the village of
Brattleboro on the route proposed, and for
the same reason.
1t is considered, as the answer discloses.
that more than $4,000 of the capital stock
of the defendant company has been sub
scribed, and that more than 80 per cent of
that amount has been paid in, and is now
available for the construction of the road /:
but if this were not so, it is considered
that the orators cannot take advantage
thereof as ground for relief, for the reason
aforesaid.
1t is also considered that the construc-
tion and operation of the road. in the man
ner proposed, will not impose an additional
servitude so as to entitle abutters owning
the fee of the streets and the highways to
compensation for land taken. But as it is
considered that easements may be taken as
well as land, it is not intended to say that
the road, if constructed and operated in
the manner proposed, cannot and will not
take easements so as to entitle to compen-
sation the abutter thus injured. The bills
as drawn do not present the cases in that
aspect.
The allegation in the first bill, that GER
tain streets mentioned are so narrow that
if the road is built and operated thereon it
will practically monOpolize the use thereof,
largely to the exclusion of travel thereon
by carriages and teams, is denied by the
answer, which alleges that the road will be
so constructed as to leave the streets in the
best possible condition to accommodate all
other travel, and that for all practical pur-
poses they will be disable their whole width,
the same as now. Under this denial and
allegation l cannot treat the allegation of
the bill as true, and therefore it is not nee
essary to consider how the case would stand
if this allegation of the bill were to be
taken as true.
Ross, c. j., who sat sat with me in the
hearing, cOncurs in all the views here ex-
pressed.
The result is, that the motions for in
functions are overruled, and the orders to
show cause discharged, with costs to the
defendant TO be taxed and adjusted in the
final decree as to costs.
Given under my hand at Montpelier,
this 27th day of May, A. D. 1895.
JOHN W. RowELL,
Chancellor