The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-08-13
JUDGE CUNSTEQ'S OPINION
Scraatoa Tractioa Company Caaaot
Double Track Fraaklia Ayenae.
WILL GO TO SUPREME COURT
Opiai0a Il Ono Of the Most Exhaustive
from These Courts-WNn Attract
Atteutiou Throughout the state.
Company WIN Appeal.

soePSoy vUs NRR
In the equity court Of common pleas
Judge Gunster handed down his opin-
Ion yesterday In favor of the Franklin
avenue property owners, and refused to
allow the Scranton Traction company
to lay double tracks In the block be-
tween Lackawanna avenue ana Spruce
street. The preliminary Injunction was
made perpetual. The opinion in full Is
as follows:
''rhe Scranton Traction company was
Incorporated on Oct. 20. 1892. under and
by virtue of an act of assembly. ap-
proved March 90. 1857. entitled An act
To provide for the Incorporation ana
regulation Of motor power companies
for operating passenger railways by
cable, electricity or other means. 1t Is
lessee of the Scranton Suburban Rail-
way company and also of the Peoples
Street Railway company Of LuZerne
county. and Is operating both roads by
means of electricity as motive power.
1t proposes and has already commences
to take up and relocate ON one side of
Franklin avenue. between Lackawanna
avenue and Spruce street. in the city OF
Scranton, the track of the scranton
Suburban Railway company, which is
now located in the middle Of the ave
nue.. and to construct on said portion or
Franklin avenue, on the other side
thereof, another street car track under
authority alleged to have been granted
to the Scranton and Providence Passen-
ger Railway company. which was in
corporated by act of assembly approved
March 70, 1866. Up l.. 1861, page 1880 and
which became merged In the Peoples
Street Railway company OF Luzerne
county in 1868. 1t Is the purpose Of the
Scranton Traction company to operate
both roads as part of one system, and
by means Of electrical power.
Plaintiffs Are owners.
1.-THE plaintiffs are respectively own
ers of improved and valuable property
fronting on Franklin avenue in the
block mentioned. Those on the west
side, except those who own on the cor
ner. have no access to their properties
from any public highway except from
Franklin. Before the avenue was
opened and the land in that locality laid
out in lots. the land belonged TO the
Lackawanna Iron and Coal company.
After the land was laid out in lots the
Iron company sold and conveyed them
as being situate on Franklin avenue.
and with the privilege of using ten
feet in front of the front-line of said lot
on Franklin avenue for yard, porch,
piazza, cellar-way and bay-window,
and for no other purpose The plain
tiffs allege that they will be injured
and their properties deprecated II the
defendants be permitted to do which
they propose to do and ask to have them
enjoined. On the other hand the de-
PENDANTS challenge the standing of the
plaintiffs in a court Of equity. They
contend that the plaintiffs have no such
rights as entitle them to be heard; that
the defendants have vested right to
do which they propose doing, and that
the construction and operation of the
two tracks will not injure the property
or rights Of the plaintiff.
las to the right Of the plaintiffs to be
heard, see no reason for changing the
Views expressed in the opinion filed
when the preliminary injunction was
1t seems to me that the act
Of June 10, 1871, p. L.. 1850, Is too clear
for argument. The first section pro-
vides That in case proceedings in court
of law or equity of this commonwealth,
in which 1t is alleged that the private
rights of individuals or the rights or
franchises Of other corporations are in
jured or invaded by any corporation
to have a right or franchise to
do the act from which such injury re-
suits, 1t shall be the duty Of the court
in which such proceedings are had, to
examine, inquire and ascertain whether
such corporation does IN fact possess
the right or franchise to do the act
from which such alleged injury to pri-
vate rights, or to the rights and fran
chises of other corporations, results;
and II such rights or franchises has not
been conferred upon such corporation.
n 20 ntur fntkn nle.
er, shall, by injunction. at suit of the
private parties or other. corporations
restrain such injurious acts and If the
proceedings be at law, for damages, it
shall be lawful therein to recover dam.
ages for such injury as in other cases.
About the Ten.FoOt Privilege.
1.-The contention that the properties
Of the plaintiffs are not bounded by
Franklin avenue, because of the ten
foot privilege, overlOoks the fact that
the privilege itself is property. 1t may
be limited as to its use. but 1t Is valu-
a BILE, nevertheless. and in my judgment
IL Is an exclusive privilege, and any in
vasion Of 1t Is as much an invasion Of
right as an invasion of the $50 or 160
feet behind 1t would be. 1t adjoins the
which is as much part Of the
public highway as the driveway Is. The
plaintiffs are assessed for grading, paw
ing and guttering the avenue, for set
ting curbstones and laying sidewalks,
and IL they permit the snow and ice to
accumulate on the sidewalk in the win
ter time they do so at their peril. The
evidence before me fairly shows that
each Of these properties will be more
or less injuriously affected by the pro-
posed construction and operation Of the
: xua I fra cka men fiOned which will inter.
fere with the free access to the premises
and the convenient use OF the highway
on which they front. 1t is my duty,
therefore, under the act Of 1871 quoted.
to inquire and ascertain whether the
do in fact possess the right
or franchise to do what they propose
doing.
''As said before, the Traction COM
pany, as lessees Of the Peoples COM
pany, claim the right to lay down a
track under the charter of the Scranton
and Providence Passenger Railway
company, which has become duly
merged In the Peoples Street Railway
company. The third section of the act
that company Is as fol-
lows:
THAT said company Is hereby au-
thorized to construct railway to be
used exclusively with horse power,
on Lackawanna avenue in
the borough OF Scraneton, In the coun-
ty of Luzerne, at or near the depot Of
the Delaware, Lackawanna and West
ern Railway company, and from thence
up Franklin avenue to Spruce street,
thence up Spruce street to Wyoming
avenue. thence up Wyoming avenue to
the upper boundary line Of said bor-
OuRh thence by such route to n nd si,ch