The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-04-06
THE INJUNCTION REFUSED.
JUDGE FALLIGANT RESCINDs THE
ORDER AGAINST OPENING
STREETS.

Z The savannah, Florida and Western
VIII Vow Have 10 Take Its Case
Before the Supreme COurt-The
Case Would Probably BE Decided
at the October Term, and Then n
Jury Would Have to Decide
whether a Proper Amount Has
Been Allowed as Damages.
Judge Falligant handed down a decision
in the superior court yesterday. refus-
ing to grant the injunction prayed for by
the Savannah. Florida and Western rail-
way to prevent the city from opening
certain streets across its tracks and right
Of way. The order is a very brief one
and simply states in effect without going
into any detail that after a careful con-
sideration Of the pleadings. evidence and
arguments Of counsel, it is considered
and ordered that the prayer for injunc-
tion be refused and the restraining order
heretofore granted is set aside.
The streets, the crossings for which
had been appraised by the committee of
freeholders representing the city were
Habersham, Abercorn, Duffy. Henry. st.
John. Ninth and East Broad, and the
amount allowed by the appraisers for
damages was 5000. The resolution pro-
viding for the appraisement Of the cross
ings for the other streets has been tenn
porarily held in allegiance pending the
litigation.
The Savannah, Florida and Western
thought the amount allowed entirely too
small and as soon as notified of the pro-
eeedings Of the oty's appraisers, SCI
cured a temporary restraining order to
prevent the city from going ahead with
the opening OF the streets. This was fol-
lowed by a petition for permanent in
junction, which was argaed in Febru-
airy before Judge Falligant and this petit
ton has now been denied.
Ihe next step is to the supreme court
where the case will undoubtedly go. The
Savannah, Florida and Western seems de-
termlned to fight the matter to the end.
Should Judge Falligant's decision be sus-
tained, as II is likely to be- the next step
Is a trial before a jury which will de-
termine whether the amount allowed by
Uhe arbltra tors is fair and equita Bile for the
damage that will be incurred by reason of
the streets crossing the railroad right Of
way. 1t is not probable that the case can
be heard by the supreme court before the
October term, and this may make Il about
year before final determination Of the
matter Is arrived at
The counsel for the Savannah Florida
and Western held that the act under which
the proceedings to appraise and condemn
TO property for the purpose Of opening the
streets was Unconstitutional, in that it did
not provide for any notice to be given the
nTOnPTtW ND D. 4
be heard in his own behalf with regard TO
the value Of his property before the an
praisers. 1t was shown that the property
owner was given notice after the property
had been appraised. and that he then had
the right under the code, of an appeal for
an injunction or a trial by jury. In this il
was held that the property owner had suf-
hcient recourse in case of any dissatisfac-
ton with the conclusions reached by the
appraisers
Another principal point made was that
even though the law was constitutional
the city had no right under IL to con-
denim property already devoted to public
H5es, for Other public uses Railroad
property of this kind, 1t was claimed. was
quasi public in its character, and the city,
1t was claimed, could not take such
property for other public uses Against
this argument 1t was held that the in
terference contemplated by the opening
of streets was only a partial one, and one
which could easily be compensated for in
damages. In other words, il is not con-
templated to take the property away, but
only to cross it, which hardly has the
effect OF condemning for public use prop
erty already devoted to such uses.
Mr.. X. q. Erwin. vice president, of the
Savannah, Florida and Western and Mr.
w. l.. Clay appeared for that road, while
Mr. 5. b. Adams represented the city.