Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1895-11-20
The QUESTION
Of Lowering the Street Railway Tracks
On Market Street.
The Full Text of the Communication
to the City Board ofPublic Works,
Showing the Position Of the Com
pany in Full.


by the Wheeling Railway Company re-
garding the lowering Of its tracks on
South Market street, between Twenty
first and Twenty-secOnd streets, the
item being based on a statement made
by the City Engineer, Monday, night,
to the Council Committee on Streets,
Alleys and Grades.
Below will be found the full text Of
the paper laid before the Board by the
Company, explaining IN detail the po-
s.cicn Of the corporation
ITO the Board of Public Works Of the
City of Wheeling:
Responding to your no
tee in regard to the proposed change
IN the grade or surface Of Market street,
from Tweuuecn { 10 Twenty-second
street. and the lowering of the Street
I Railway track, the Wheeling Railway
Company beSs leave TO submit the FOL
lowing:
The track of the Citizens Railway
Company On that part Of Market street
was enLrely reJuill with new materials
in the rail- OF 1892. Ii is built CT
heavy girder rails on good ties, and has
good Ioudatlon. 1t was laid exactly
TO the grade prescribed by the city au-
thC,iies and the space between the
rails and the requisite space OUTSIDE
Of the track was well paved with the
material required by the ordinance,
and al is ROW II good repair and con-
d44On, except so Tar as it has been DIS
Curoed by the city.
"Ine track, 50 laid, exists there in
pursuance oI law ald in accordance
win contracts made WLthin the CITY
and although situated upon a public
street and N a sense devoted 10 public
use, It 5 private properly, and IS be
Leved TO be entitled 10 the protection
afforded to such property by the con-
sltu1On and laws or the State
Before The words or damaged were
Introduced into The Bill CT Rights (Sec-
ton , Of Au,icle CT he Constitution OF
ives, Virginia., municipal corporations
in our State could change the grade OF
% street NICnOu- being legally respons.-
Die lor damages TO private property 0c-
c3s.0n6d by such cAange. Inc law al
lowed compensation only where private
properly was taken for public use. In
the present Constitution the clause on
the subject is made to read, in the Bill
OF Rgats: Private properly shall not
be taken or damaged Tor public use
Wen. just compensation.
The provision as amended has been
jud.cially determined TO apply to dam
ages ocasioued by the changing Of
grades oil streets; 50 that, unless there
is some provision N the ordinance
which constitutes the contract between
the city and the Company that viii
relieve the city from responsibility, We
think we are entitled to protection as
matter OF law as we'll as OF JUS
tice.
cur notice states that you intend TO
reduce the level OF the street and calls
upon the Railway Company TO lower its
track TO correspond with the new level.
Your meaning is TO call upon the Rail-
way Company 10 lower the portion Of
the street ca which its track is laid,
ana take care OF, CT relay, It's track,
and then to pave anew with bricks
There is, in the ordinance which
granted TO the Citizens Railway Com
pauy the right TO have and maintain
the track. reservation of the right TO
the c.,y by its agents and servants TO
20 uDOn CT under the track to repair
It's sewers, and water and gas pipes,
and TO make other lawful improve
ments. Ii is very doubtful If this pro-
I vision would allow change of grade
az the mere viii of the city after once
establishing the grade and requiring
the track TO be laid SO as to conform
TO il. but for the purpose of the case inl
hand. that question is of minor i'm
pOrtance: for whatever is done is re-
Cu.red by the ordinance to be done by
/ the city. II is a mere reservation Of
! the right to the city TO do the work, ac-
companied with conditions as to the
manner of doing it. If the city, in
I making any lawful changes in its
streets. necessarily interrupts the run
ming of the cars Of the company, it IS
/ provided that the company shall not be
entitled to compensation for the loss
/ so occasioned. the said city, however,
/ saws the ordinance, net doing or COM
/ hitting by needless delay any IN
/ necessary injury to said railway COM
p3uy'A business or tracks in doing
/ such work or making such repairs, al
terat.ons or improvements; and the
said city. in such cases shall also make
/ the necessary or proper repairs TO the
! street at its own cost.
I'VE respectfully submit that the or
dinance cannot be construed to mean
! that the city may undermine our track
/ and not be responsible for the dam
/ age. much less can it require us to
/ change both street and track to suit
/ a new level determined upon by the
city.
ALREADY the work by the city has
| progressed 50 far as to make the
! change of grade a fact. Either our
/ track must be lowered an average OF
| more than a foot for a distance Of five
or six hundred feet or the street must
be greatly damaged by the change.
THAT the burden Of making the
change i'm the track without causing
! unnecessary interruption 10 the bust
ness of the company. and without IN
necessary injury to the track is upon
/ the city cannot be doubted.
THE track can, by the exercise Of
/ reasonable skill and care, be lowered
and soHdly rebuilt, but not without
some damage TO the company's bust
ness. To do the work negligently would
/ cause permanent injury.
Eve desire TO act in a spirit Of fair
ness in the matter. II IS desirable, in
| order TO avoid friction and dissatisfac-
tion. and possibly litigation, that the
~eepcnsibihty Of changinei the track
I and the portion of the street under L