The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-08-13
THE SCRANTON TRIBuNE-TUEsDAY MORNING.

avenue. they lost the same by standing
by and without objection permitting the
Scranton Suburban Railway company
to construct its tracks there, and that
the authority has been forfeited by non-
use. 1t Is well settled that authority
Of the kind in question. when conferred
on corporation II not lost or forfeited
by mere non-use. Philadelphia. defend
ant. w. Wilmington and Baltimore and
Williams, 81 Pa. 103. Black VS.. Phila-
delphia and Reading railway. s. Pa,
~ But 1t may be abandoned. In the
present case the Peoples Street Rail-
way company did nothing on Franklin
avenue until about the time the bill was
hled. When the work now proposed to
be done was begun. 1t was undertaken,
not under the charter Of the PEOPLES
company, but under the supposed au-
thortty OF another corporation. When
the Suburban company constructed its
track In 1856 they stood silently by.
They permitted the construction and
operation Of the Suburban road without
objection. When the Suburban COM
pany was Incorporated. this very ave-
nue. was designated In Its charter as
part OF Its route. by indenture, dated
Dec. 10. 1890, the Scranton Suburban
Railway company granted. leased and
demised all Its street railway then built.
or In process Of construction or there.
| after to be constructed In the city Of
lScranton and borough Of Dunmore, to-
gether with its franchises. equipments
and property for long term Of years to
| the Peoples Street Railway company.
In this indenture the Scranton Subur-
ban Railway company Is described rs
"a corporation duly organized under the
laws of the state of Pennsylvania and
the instrument is executed by the off,
GERS and under the corporate seal Of
both corporations. In its agreement
with the Traction company. dated Oct.
a6. 1892. the Peoples company leases,
demises and to farm let all it's railway
now constructed, or to be hereafter con-
structed, including its leased lines 1t
seems to me that the indenture of Dec.
10, 1890, is an unequivocal admission and
declaration on the part Of the Peoples
Street Railway company of the right
and authority Of the Scranton Suburban
Railway company to construct and
operate Its road on the part Of Franklin
avenue In question, and strong evil
dence that 1t had abandoned its author
ity to construct its road there. and l
find as a fact that said Peoples COM
pany abandoned said authority before
the construction OF Its road by the
Suburban company.
About the Ordinance.
ut appears that by an ordinance, ap-
proved April l, 1895, (after the filing Of
this bilD the city authorities gave the
consent of the city to the Suburban
company to change their tracks on
Franklin avenue and at the corner Of
Spruce street to one side so as not to
interfere with the track Of the Peoples
company, which they are about to build.
The city may give its consent, but 1t Is
entirely powerless to grant authority
to the Peoples company to lay track
there. That authority, as said before,
must come from the commonwealth,
and / apprehend the city is equally
powerless to grant authority to the
Suburban company to change the loca-
ton Of their tracks for the purpose
mentioned.
AFTER careful consideration Of the
case, l am of opinion that the injunc.
ton should be made perpetual. Let
formal decree be prepared by counsel
and submitted for approval"
Fred w. Gunster, A. L. ].