Evening journal., 1897-05-17
FULL TEXT OF CHANCELLOR
NICHoLsoN's DECISION DENY
ING THE INJUNCTION APPLICA-
TION OF THE P, w. & 3. r. r.

Company were sent for. Chief Justice |
Lore occupied a position on the bench |
beside Chancellor Nicholson. Andrew |
c. Gray and II. II. Ward represented |
the steam road and Willard Salisbury |
the trolley
The chancellor handed down a deci- |
sion in the injunction suit entered by
the railroad company to prevent the |
trolley company from extending its
tracks across the railroad at Third
street crossing to connect with the
New Castle and South Wilmington
lines.
The following is the full text of the
chancellor's decision:
The Philadelphia, Wilmington and
Baltimore Railroad Company, a cor
poration created and existing under
the laws of the State of Delaware
VS..
The Wilmington City Railway Com
pany, a corporation created and ex-
listing under the laws of the State OF
Delaware.
Court of Chancery of the State Of
Delaware, New Castle County, May Is,
1897.
The complainant operates a line of
railroad from the city of Philadelphia
" bhI NlAg VI DdilAluOIt anu tlStWntIG|
which crosses the State of Delaware.
1t passes through the city of Will
mington and crosses Third and Fourth
streets at grade, both of said streets
having been common highways estab-
lished and maintained at the expense
Of the city of Wilmington, long before
the company complainant was incor-
porated, or in fact any other railroad
company was incorporated in this
country.
At a short distance below the rail-
road crossing there is a bridge over
the Christiana river, known as the
Third street bridge, serving as a means
of communication with an outlying
portion of the city known as South
Wilmington as well as with the ada
cent country and the neighboTing city
of New Castle.
The respondent operates a street
railway in the city of Wilmington and
upon some country highways adjacent
thereto by electricity under what is
known as the trolley system, and has
laid street railway tracks along Third
street to the complainants railroad,
both on the northerly and southerly
side It's purpose is to cross COM
plainant's road with the street railway
where complainant's road crosses Third
street, thus connecting with its tracks
already laid across the Third street
bridge and and in South Wilmington
Respondents charter, granted In
1864, provides that it may cross any
track of any railroad company now in
cOrpOrated, or hereafter to be incor-
pOrated, provided that it conform tC
the grade Of the track to be crossed"
The complainant filed bill in equity
to restrain the proposed crossing. Upon
the presentation of complainant's bill
granted a rule to show cause why the
preliminary injunction prayed for III
said bill should not be awarded, with d
restraining order until the determina-
tion of the rule.
The bill was subsequently amended
and the restraining order modified II
accordance Herewith.
The amended bill prays as follows.
/. That the said defendant may fully
and truly answer this bill of complaint
and not under oath, the same beinf
hereby expressly waived.
2. That the said defendant, and its
successors, it's officers, employees
workmen, agents, deputies and attor
neys may be restrained by the injunc
tion Of the honorable court, from agail
stretching or extending its trOllel
wires across the tracks of the salt
complainant on said Third or FOurtl
street in said city of Wilmington, ant
from operating, or attempting to oper
ate. its said present or any proJecte'
line of street railway across the track
of said complainant at Third or Fouru
street. in said city of Wilmington, wit
the use of electricity as a motiv
power
8. And also, that a preliminary in
junction may be issued from this hon
orable court, to restrain the said de
fendant, and it's successors, employees
workmen, agents, deputies and attoI
neys from again stretching or extend
ing its trolley wires across the track
of said complainant, on said Third Q
Fourth street, in said city of Whining
ton, with the use of electricity as
motive power, or otherwise howsoeve
in like manner until the further ol
der of the chancellor.
A. That the complainant may hay
such further or other relief, as the M
ture of the case may require.
5. That a subpoena may be issue
for the said The Wilmington City Raj
way Company as defendant in tn
cause.
The respondent has filed it's answe
fully meeting and denying all Il
equities of the BILL affidavits hay
been presented and read on both side
and the question involved argued upc
the motion for a preliminary injun
tiOn.
The complainant does not claim al
property rights as abutter or owner
fee which will be affected by the pr
posed crossing, and only shows in
self she right to cross Third and Four
streets, previously existing highway
in. such manner as shall preserve
the public the use of the streets und
the well-known common law rule, tn
where a steam railroad crosses a sire
or public highway, as in this case,
takes its right subject to the right
the public to use the street in re
sonable and lawful manner
AS was said by Judge Houston,
the case of Mccoy VS.. p. w. & b. r.
Co., 5 Houston, page 609. decided
1879, as Fourth street was then, al
ro,rr tod boor hofof.a fbp cOmnanV W