New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1897-12-15
DECISION CAUSED A STIR
op,N1oN WHICH INTERESTED
STREET RAILWAY OWNERS.
THE COURT OF APPEALS REFUSED TO REOPEN
THE KINGSTON CAsE-PRoPERTf-hoi-D
RIGHTS WHERE ONE COMPANY
USES ANoTHERs TRACKS.
rpy TELEGRAPH TO THE TRIBUNE

rBY TELEGRAPH TO THE TRIBUNE1
Albany, Dec. 14.-The Court or Appeals to-day
denied a motion for reargument or the some
what celebrated Kingston street railway case
and this denial at first created sensation
among street railway owners In the various
cities of the State. because 1t was believed that
the original decision had affected the rights of
oor,rapies using leased lines to run cars over
those lines without first getting permission rom
the authorities Of cities and abuttlng property
owners The action taken by the Court to-day
Is. however. explained by Judge OF the coui'
as follows:
The Court holds that where there are exist
ing contracts. whereby one railway is using a
portion of another road or where contracts u
tween roads are contemplated, the matter OF OBJ
tanning new franchise, including properly
holders consent, is an open question: and this
court will hear 1t argued If case Is preseh'eu'
It also holds however. that where new OF an
evtstine road attempts TO force another "oao
IN allow Il TO use portion of its tracks. or gets
such nern1ission by condemnation, then the Con-
stitution must be obeyed and the consent OF
nronerty-holders along the line must be obtained
in the same manner as If new road Is 10 De
built"
In giving its decision on the motion to reopen
the case. the Court handed down an oplhion'
which Judge Vann wrote, and in "hNch JUICES
Andrews. Bartlett Haight and Martin con-
Cured. Judges O'Brien and Gray not SITTING
Judge Vann in his opinion says:
This motion for reargument IS oT DasS% o one
OF the points presented. This posslpnity Is p The
the fact that the point is not have held that
fact gives rise to no such infefeHeSs thai The rea
SON for not adopting the opinion or the hpptldnn9
Division, which, as reported dsJuSne9 10 Void
smother litigation by deciding question that, al al
though presented by the record was iTC eonneiiant
th$t eardheId was overlooked was duly considered
BY us. although no expression Oh CoHs'u''"'0 ~
pears IN lio sGbstance that inasmuch as the de-
fendan, succeeded to tine gnS OF Of the ConstIn
in 1884 i, has the right i It chooses 10 a ibat this
right could not be infringed upon by suGseqTfyT r
legislative that sHSh by The defendant
without regard 10 whether the road with whicch ~
desires contract was organzSa pFS or SUBSEQUENT
thereto ana upon this assumption It Is urged tnat
the law proyd9rSr fGF AN s rPefaa Of properly
owners the law provides for an appeaf ,so 20 by
e eECb a W c6mpan wa as the defendant.
The conclusion We are asked to reacn Is ME at
law SO where a road may voluntarily grant 'ne
use Of its tracks 1t Is C component syen Il the sau
tory Consents have not been obtained by 'h9 'oau
Syf the pantir was organized 1896 succeed
Ing TO the rights of company organize hen 4 ex
listed at the latter date control its rights Whatever
effect they may have upon ORGANIZATIONS 80 % or
s s561iy q 1ar this "f Prosecuting and the plaintiff
the moving party in the effort TO acquire cer,a.i
tights through the power Of eminent DOMAIN was
bonn5 70 proceed strictly in accordance with rs re-
ouirements These requirements are eeie'dc nv ~
1Soaia no dscrInina ion based upon the rights OF
bowers Of the road proceeded against. and are not
affected by what that road can voHhIar ,S eSse
its road to another company, that right cannon pc
inn0KeI o yyooremenrs nor made the sole founda-
ton OF proceeding 10 compel the defendant 70 pei!
init the use Of PGSr n er6 OF eel or impdy sane
lions such a conclusion. The plaintiff must move w.
upon It's own status ana oS 8leG 10 s wishes
As we aimed 10 demonstrate In the opinion giving
our reasons for armps Tie and the abn,tng
owners 10 the OF the intervening track OF me
81 OF the Railroad law, conditions precedent to
the proceedings to acquire such use uhdGr "a
not in a position 10 make the appiicaton '1 ~
has first obtained such consents Inc prooilqn %,
Ie c5SHer3ed proceednS in nvtim and does not
~ Co1cTi on w5st the defendant might have the
power TO voluntarily agree 10. ,,
? II is also suggested that our opinion has raised
as I TO s seS es Of whh
there are said to be many now In force az over
tne S5ate o Wa hefore Ms which simply involved
the standing OF the plaintiff TO make the appli,
cation IN question and our opinion snOol De pe1
pens broader statements were MADE ny way OF
argument or otherwise. than were essential 10 me
decision of the question presented. they are the
dicta OF the writer of the opinion, and not the de-
cslon OF the Court. judicial opinion, IKE evl,,
dence. is only binding far as II is relevant, ana
when II wanders from the point al issue IL no
longer has force as official utterance. Inc
failure to read the opinions OF courts with this
fact in mind gives rise to much fruitless litigation
1t Is still said that the decision will cause
trouble for many railways In large cities. which
are now using the tracks Of other railways
without having obtained special franchises. The
application for a reopenlng OF the case was
made by Deputy Attorney General Hasbrouck
for the Colonial Traction Company, and also
for several companies In NewYork and Brook
lyn. The motion not put on the calendar,
but was heard on December o, briefly and with
out opposition. II became known yesterday that
such motion had been made, and then Eugene
clifford Potter Of New-York. forwarded a pro-
test against reopening the case, The appeal OF
Mr. Potter received this morning but the
court had already decided the matter.