Evening journal., 1897-12-15
IMPORTANT DECISION
Refusal to Reopen Argument
In Railway Case.
NEW YORK COMPANIES WILL SUFFER
Court Of Appeals Gives Out an opinion
Prohibiting Seizure OF One Roads
Tracks by Another without Prop
erty Owners Consent.

ALBANY, Dec. 15.-The court of ap-
peals' decision handed down, in which
1t refuses to reopen for argument the
Kingston railway case, is described by
judge of the court as follows:
1.-THE court holds that where there are
existing contracts whereby one railway
is using a portion of another road, or
where contracts between roads are con-
templated, the matter OF obtaining a
new franchise including property hold
ers' consent is an open question, and
this court will hear It argued If a case
is presented. 1t also holds, however,
that where a new or an existing road
attempts to force another road to allow
it to use portion of it's tracks or gets
such permission by condemnation, then
the constitution must be obeyed and the
consent of property holders along the
line must be obtained in the same man
ner as If new road is to be built"
The opinion was written by Judge
Vann and dissented from by Judges
O'Brien and Gray. who believe it should
not reopen the question at all. The inn
port Of the decision is to open the ques-
tion so far as railways that may wish
to contract for each others tracks IS
concerned, but prohibits, without con-
sent of property owners, seizure of
tracks of one road by another.
It is certain that the decision VIII
cause serious trouble for many railways
in large cities that are now using the
tracks of other railways without having
obtained a special franchise. The ap-
plication was made very quietly by
Deputy Attorney General Hasbrouck
for the Colonial Traction company pre-
sumably but also for several compa-
MES in New York and Brooklyn that
are to be sufferers by the former de-
oision.
The motion was not put on the calen-
dar, but was heard on Dec. very
briefly and without opposition, because
no notification Of the application had
been given. It became known, however,
that the motion had been made, and,
through an attorney Eugene Potter Of
New York, a taxpayer, at once for
warded brief against the motion.
Ia opposition to the motion the brief
says that the motion for a reargument
was made for purposes Interior to those
involved in the suit itself, and it is ap-
parent that every effort is being made
by other street railroad corporations
to procure a reversal of the decision by
the court Of appeals. because it may
prove embarrassing to them either at
present or at some future time. The
court of appeals in deciding the case
had expressed exactly the sentiment
which was evidently intended by the
trainers of the constitution, to the ef-
feet that construction and operation
are separate elements of damage to
/ property owners and require separate
/ consents for either purpose.
Mr.. Potter, in his paper, says that
this opinion shows that the court of
appeals intends to protect the rights of
property owners against the grasping
greed of the railway corporations. which
are fast rendeying their systems most
burdensome to property owners and de-
strOying the value Of property immedi-
ately abutting upon them, especially IN
those cases where the improved meth
DDS Of traction practically transform
them into systems as dangerous to life
and limb as steam railways. 1t would
greatly be regretted If, after this court
had expressed such an opinion, ii would
be nullihed by the court itself simply
because It Is found to work adversely
to the interests Of powerful corpora
tions. who Immediately, either indirect
ly or directly, ask the court to alter its
opinion and give an exactly opposite
construction to the constitution"
The brief of Mr.. Potter's counsel was
not presented to the court, because II
did not arrive in time, but the courts
decision Is In accordance with its con-
tentions and is a blow at the rail-
ways.