Omaha daily bee., 1898-12-29
RIGHT OF WAY FOR TERMINAL
City Attorney oonn'll Gives His Opinion on
Pending Ordinance.
NO QUESTION OF FRANCHISE INyoLvE1
Exercise u Eminent Domain WILL
Give the Road All 1t wants In
Case the Council and Citizens
Decline to Grant IL.

City Attorney Cornell has formulated an
opinion on the question that was submitted
70 him by the city council In connection
with the Omaha Bridge and Terminal COM
pany ordinance-whsthsr the granting OF the
right-of-wa asked for would he the grant
ing Of . franchise and therefore whether
or not the question must be submitted to
the psopls. The opinion is e. follows:
To the Honorable. thu City Council OF the
City Of OMaha-Gsntlemsn: In resVSnse %
tAe request OF your honorable body for my
opinion a. to whether granting TO . railroad
company che right 70 lay . railroad track VI
tracks across OF along any part Of any pub
tic street sf the city Of Omaha would be the
gran\lAG Of . franchise whhin the eoaten-
piation Of the previsiens Of the act rslaklne
70 mStropohtAn olties and KNOWN ~ The
"charter." have the hover to report tina!
after . careful EXAMINATION Of the law
conclude that such action would MT De The
granting or extension q . fsachise within
the o0sbtSinpiatisx u che prosts.~ns q The
charter to wAish Feference 10 made. There
are several provisions q law IN chapter Nv,
Of the Csrapaled Statutes sntitiee "CsSpets
ttons'' and having direct r~eserencs 20 rail
roads which muSt be whethsr q NaAt TO q
railroad company OF the nature rated k q
franchise. Section % Of chapter xvi Of the
Compiled Statutes. 70 Which reference Ia
made. expressly DgoviAes - follows:
II IL DL8l % ucCtOoVs ~ w SVSotsVs
Of any part Of any railroad to occupy IN,
read. street. alley or public way or yrouot
Of any kind. or any part thereof, II sAall et
competent for the municipal or Other esr-
poration or public o@csr or public auth0ri.
ties owning o. having charge tAsreof. ans
the railroad company to agree upon the man
ner and upon the terms and conditions upot
which the same may be used or occupied
and II aid parties shall b unable to agree
heso and It SHALL be necessary " u;
Judgment Of the directors Of such railroa<
company to use OF occupy such road, strsSe
alley or other public way o. ground, suel
company may Appropriate 20 much Of thu
same a. may be necessary for the purpose.
Of such road In the same manner and upor
the same terms a. 10 provided for the ap'
preparation OF the property OF Adivadusls'
Section sim In Fall Force.
This section OF the law wa In full forcs
at the time Of the passage OF the caarted
and was not amended or repealed directly
and In my Judgment Is not repealed by I'm
plication. but stu remains In full force
! consider that the sections Of the charles
relating TO franchise should be Oonsidee 60
with other general provisions Of law and az
should be so construed as to harmonize II
possible.
The right Of railroads to occupy public
streets is clearly recognised by several De-
cisions OF our supreme court. Aus1g sther
cases his right IL clearly recognised In the
case OF Chicago. Kansas 4 Nebraska Rail-
road Company against Hazels. 70 Neb., H.
p, $50. In which case the court. after max.
Ing reference to section IS Of chapter XVI Of
the Compiled Statutes. declares a. follows:
RAILROAD corporations have the right,
therefore, to take ana use real estate for
right of-way purposes. with or without the
consent Of the owner thereof. They also
have the right DO occupy roads. streets. a.