Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-09-21
MOTION IS OVERRULED.
WHO WROTE The LETTER 10 r. o. aoss7


pc street ptupefty owners against the
Salt Lake City railroad company Is
making fair Roadway before Judge
Hiles. Todays time has boon for tho
Greater part occupied by the defense
In introducing testimony quite q
number OF amusing episodes have
taken pincs'in court since the case be-
gan and uulie number OF sthfiling
statements made with fos7tci 10 the
manner In which the old members of
the city council and some OF the ON
GERS OF the railroad company conducted
business
After the "Ncwa" report closod ycs.
terday testimony was introduced tend
Ing 10 show that properly had been sold
on South Temple street with the IN
defaianding that no line would be- con-
constructed along the street. Plaintiffs
then rested when senator Itawlins
moved 10 strike out all u the tcsil-
mony with the exception OF that por-
ton relating 10 the frarohise granted
by the city Council. on the ground u
iis lmntatcria>iy and incompeicncy.
Judge Doy In lengthy address 20
the court. opposed the motion. Mr..
Crlichldw followed and Judge iiiles an.
nounccd that he would pass upon the
matter In the morning.
MOTION rs ovERRuLED.
Al $3.50 this morning Judge Hllea
ovorulfd the motion 10 strike out. az
we'll as motion 20 dismiss. His honor
spoke hs follows.
"The grayamln u ths complaint Is
that me dffandtn, Salt Lake city tal-
rUd company ia about % lay q r.rftt
RAILWAY track on South Temple streff
In san Lake city. east % u street. 70
the damage N lha plaln.lifa, who are
abuitlnE property owners on thtt
airre;. That the defendant has ~
public franchise 20 lay such track. tha.
aithluah % once may have had such
privilege. 10 In 1893 ana 1885, With che
htHaut N she government Il, slh Lake
ciiy. agreed 60 abandon ana dll de.
| clare ~ Abandonment ~ That part of
! the FirfFl. and since chen thcre has
been an acauleseancc by The cliy and
she defendant street railroad company
| and the general public IN such aban-
ddnmout.
THAT the declaration ~ abandon
mcni shus made ana nr Acceptance by
me city were both entered upon che
/ public records ~ itH transactions or by
resolution " ihe defendant upon ~
minutes. ami shat this omission was
made 90. Of confederation for certain
/ Interests ~ the dnfCndaug railroad
/ company, whlch q represented 90 the
| city Council would be- Injured BY the
| publication % she trannction. That
withsianllnR the agreement thus
| made The defendant n now seeking 60
/ rtpudiaic and dlsav0w Il 70 the Injury
u ne plaintiffs ard j. fraudulepily na-
seriinE that li Hlll has frlnchlte over
The disputed territory! and that thia
assertion by ths isfsndant of H. priv.
loEc u 60 the injury % plaintiffs, who
are the alleged bsnsnciirieH ~ that
| conversion hHtwofn the city and tha
dsfcu1nn. railroad company.
Defendant moves 10 strike out tho
| evidence which has been elected by the
pliinilna ln support % thslr case on the
| ground that q . Incompetent aud IT,
roievant. and because the complaint
does not state facts sufficient 20 cOnstl.
tuie u cause Of ac,l1n.
| II lnilmatcd nc TN outset of this trial
| ihW no suit could be maintained By a
third party 90 defoai a franchise by the
government TO another on the ground %
mla-user or non-ufar 81 such franchise,
that ! should decide thag that q q mat
ter between The government ana the
| gfanteo OF the franchise. that for such
cause the franchise can be defeated
only Al che suit of the government I
think, however although do not know
ihat The point has ever been decided.
| mat third party may. whore no cialma
that his Interests viii b. lniurlousiy N.
/ fcciCd by the attempt TO exercise the
| franchise, lllcge and prove that thara
| n no frinchlfe, By reason ~ rs having
been abandoned BY the grauiee with
| me consent ~ the government grating
/ u. decide. Therefore. that any evidence
i Sea asH
allegations ~ ne complaint u cumpo-
| imi. Tho oyidonro W Mr.. Horn, Mr
/ LaNHon and Mr. Cahn tends 90 snow
/ that 90 onn ilmr there were nHr1tln-
tlnns between tho city government ana
she Defendant loolung 90 the abandon
mont of The disputed territory. Watcher
| the evidence shows that the norHtia.
lions ended In the alaudoninep.-ln
other words. whethfr ihe evidence
amounts 90 proof Of that fact-is e
qu e.lnn upon The weight and Huniclency
N the evidence, which cannot be de-
clded on this motion.
- therefore, oyerrue The motion 10
strike uui ne evidence oiicitcl on the
| ground uffIftoi thai u q incompetent
"Ag 10 tho mOiun 90 dismiss On tho
! gfuund-tn strike out on the ground 0f
/ irfeleyancy my nrtt Impression was thtt
tho testimony of Horne aud I.iwron
| WIS Irrelevant because the neFltla.
lions between the city government ana
the defendant In 1893 rotated not 10 ths
| granting ~ the ordinance ~ April rs.
is9l hut the former franchises III the
defcndlnii but upnn examination VI the
several ordinances. they seem 10 shuiy
that the ordinance Of Aprii rs, 1875, Ii
not q new and distinct grant. but an
amendment and a rs-onactment of for
| mer ordinances granting to the defend.
ant the franchise IN question.
Therefore the evidence aa 10 the
| transactions " 1893 relating to the
! abandonment seems 90 De relevant
IN deciding this motion I again re-
peat that | distinctly refrain from ox-
pressing nnyiudgmHni respecting the
! weight or the auiilcicncy ~ the evil
donoe 10 sustain the allegations of ,ho
complaint
Now In this view ~ the case ,hlni,
Ten into an error yesterday In refusing
90 permit the plaintiffs 10 prove that
their Interests We're lnjurl0usly Affected
| by the running ~ the railroad company
past-lnylng the railroad track past
their property, and I viii nyerrule the
! FORMER ruling sustaining the objection
TO that testimony
"The ground VI this decision In brief
| ~ that I believe that partS who Is ln.
| iurIoualy affected by any structure w
| q street ahuitIng hls property may show
that Che party erecting u has no fran
chlsp."
SUIT. HEAD TEsrIFIEs,
A. the conclusion n the courts re-
| nniks Superintendent william Read
was called 90 tho stand by Mr.. Ctitch-
low, lie testified that he was a al.