The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-09-22

4i+~ANCA 1G1d1ANE ~ CcIld dliSStN
agreements by the company that il
would not extend it's line east of f
street, has, to some extent, now mar
rowed down to a question Of veracity
between the officers of the company
and the members OF the city council
Final decision in the case will proba-
bly, be reached during the early part
of next week.
When court convened yesterday
morning Judge HileS overruled the mo-
ton to strike out all the testimony in
Jroduced by plaintiffs side. as well as
to dismiss the case without any fur
ther hearing.
MOTIONS OVEItRULED.
The court said: 1.-THE substance Of
the complaint is that the defendant
Salt Lake City Railroad company is
about to lay a street railway track on
South Temple street in Salt Lake City,
east of Z street, to the damage of the
plaintiffs, who are abutting property
owners on that street. That the de-
PENDANT has no public franchise to lay
such track; that although it once may
have had such privilege, it in 1898 and
1894, with the assent of the govern
ment of Salt Lake City, agreed to
abandon and did declare its abandon
ment of that part of the street, and
since then there has been an acquies-
cence by the city and the defendant
street railroad company and the gen
eral public in such abandonment.
THAT the declaration Of abandon
ment thus made and its acceptance by
the city were both entered upon the
public records of its transactions or by
resolution of the defendant upon its
minutes, and that this omission was
made out Of consideration for certain
interests of the defendant railroad
company, which it represented to the
city council would be injured by the
publication of the transaction. That
Notwithstanding the agreement thus
made the defendant is now seeking to
repudiate and disavoW ii to the injury
of the plaintiffs. and is fraudUlently
asserting that it still has d franchise
over the disputed territory. and that
this assertion by the defendant of its
privilege is TO thu injury of plaintiffs,
who are the alleged beneficiaries Of
that convention between the city and
the defendant railroad company.
Defendant moves to strike out the
evidence which has been elected by the
plaintiffs in support of their case on
the ground that il is incompetent and
irrelevant. and because the complaint
does not state facts sufficient to con-
stitute a cause of action.
Il intimated at the outset Of this
trial that no suit could be maintained
by third party to defeac franchise
by the government to another on the
ground of misuser or non-user Of such
franchise: that l should decide that
that is a matter between the govern
ment and the grantee of the franchise:
that for such cause the franchise can
be defeated only at the suit of the gov
eminent. I think, however although 1
do not know that the point has ever
been decided. that a third party may,
where he claims that his interests will
be injuriOuSly affected by the attempt
to exercise the franchise. allege and
prove that there is no franchise, by
reason of it's having been abandoned
by the grantee with the consent of the
government granting it, l decide,
therefore. that any evidence in the case
which tends to prove the allegations
of the cOmpleint is competent The
evidence of Mr.. Horn. Mr.. Lawson and
Mr.. Cohn tends to show that at one
time there were negotiations between
the city government and the defendant
looking to the abandonment of the dis
puted territory Whether the evidence
shows that the negotiations ended in
the abandonment-in other words,
the evidence amounts to proof :
of that facts a question upon the /
weight and sufficiency of the evidence,
which cannot be determined on this /
motion.
Il therefore. oVerrule the motion to
strike out the evidence elected on the /
ground asserted that it is incompetent. !
LAS to the motion to dismiss on the /
strike out on the ground of /
irrelevancy, my first impression was |
that the testimony Of Horn and Law |
son was irrelevant because the negotia-
tons between the city government and |
the defendant in 1893 related not to the
1884 but the former franchises of the
but upon examination of the
several ordinances, they seem to show (
that the ordinance of April Is, 1894 is
not new and distinct grant, but an
and a re-enactment of for
ner ordinances granting to the defend
ant the franchise in question.
Therefore the evidence as to the
of 1873 relating to the
seems to be relevant.
IN deciding this motion l again re-
peat that 1 distinctly refrain from ex-
pressing any judgment respecting the
weight or the sufficiency of the evil
ience to sustain the allegations of the
complaint.
Now in this view of the case think
fell into an error yesterday in refus-
ng to permit the plaintiffs to prove
hat their interests were injuriously af-
ected by the running of the railroad
past-laying the railroad
rack past their property, and I viii Il
'verrGle the former ruling sustaining
he objection to that testimony
THE ground of this decision in brief
S that l believe that party who is in
affected by any structure in
street abuttinS his property may show !
hat the party erecting il has no fran
hise." ,
THE DEFENSE OPENS.
The defense then opened its case and i.
Read was called. He
tated that as director of the company |
4 1893 and 1885, he knew that the nego-
iations OF the company were rot en-
rusted to any particular officer, but
hat anyone could meet and discuss the |
natter informally with members of the
ouncil.
Mr.. Read denied emphatically that he
yer wrote q letter to Mr.. Horn or
nyone else I'd the effect that the COM
any had abandoned the street or any
hing else relating to that matter He
ad no recollection of meeting with a
1uncIl committee composed of Horn.
vans and Lawson, and so far as he
new no officer of the company had
eclared in favor of abandonment. )
SOMEWHAT OF A SENSATION. 7
At this point Secretary Wells was {
alled and created somewhat of a SEN
alton by testifying that some time in
a.. While the matter of extension |