The morning news. [volume] (Savannah, Ga.) 1887-1900, 1898-04-03
OPPOSED TO MORE TRACKS.
AN EFFORT TO KEEP THIRD
CAR TRACK OFF BAY STREET.

Mr.. A. X. Lawton Trying to Prevent
the City and Suburban From Put
ting Double Tracks at Ray and
AbercOrn Streets The COnsfitu-
tiOnaI Provision Against Taking
Private Property without COmpen-
sntiOn InvOked-Defcnse Says That
Provision Does Not Apply to the
Case-The Courts Decision Re-
served.
There was a long legal argument before
Judge Falligant yesterday morning on the
injunction suit brought by A. r. Lawton,
az executor of the will of Robert Hutchin-
son, against the City and Suburban Rail-
way, to prevent the latter from putting
down another car track on Bay street,
near the corner of Abercorn.
In the first place the plaintiff filed an
amendment to his petition, stating that
the work contemplated by the defendant
company in putting down another track
there would damage the property of the
plaintiff in the sum of $4,000 No offer of
remuneration for the damages had been
made. This it was stated, was in violation
of the first paragraph of the third section
of Article of the constitution prohibiting
the taking of private property for public
purposes without a Just and adequate COM
pensation first being paid. The action con-
templated on the part of the company, it
was held, involved the taking of private
property for a public use.
In the next place the plaintiff claimed
10 .afrt.t 1T
the three buildings on the southwest cor
ner of Abercorn and Bay streets, which,
ne said, would not be had If the third track
should be laid on Bay street at that point. |
1t was held 10 be also in violation of the
fifth amendment to the constitution, which |
provides against private property being |
taken without adequate compensation be-
ing first paid.
The Improvement on the pact of the com
pany had already been begun, it was stat |
ed, when the injunction suit was filed. The |
action of the company in insisting on put |
ting three tracks on Bay street when there |
were no improvements on the north side |
of the street, was especially oppressive
and unjust.
In addition to other petitions to the court |
the plaintiff asked a mandatory injunction |
to compel the company 10 remove that por- |
ton of the third track already placed |
there. 1t was again asserted that the City |
and Suburban, in the opinion of the plain |
tiff, was insolvent and could not respond |
in damages.
The allegation of insolvency was strong |
ly denied in the company's answer filed by |
Messrs. Barrow & Osborne. MIR. w W. |
Osborne appeared as the company's repre- |
sentative, while the plaintiff was repre- |
scented by Messrs. Lawton & Cunningham |
The answer also stated that it would be !
impossible for the City and Suburban to |
use the track on Bay street belonging to
the Savannah, Thunderbolt and Isle of |
Hope Railroad Company because its |
gauge is feet S1a inches, while the gauge |
of the other tracks is five feet.
IL was then asserted that the work now |
being done by the City and Suburban, in |
putting down another track, was express
ly authorized and ordered by the mayor |
and aldermen of the city of Savannah 1t |
was claimed, therefore, that the company
had the right to build the double track, |
and that the plaintiff was not entitled to |
damages.
A large number of afidavits was filed |
in connection with the case. Afndavits |
from F. c. Battey, Horace Rivers James |
e. Grady and A. r. Lawton asserted that |
the construction OF the other track would |
injure the property greatly Another |
affidavit filed by the defense was that of |
H. w. Johnson, who stated he had found |
certain unSatls1led judgments against the |
Clty ana suburban on the court judgment
dockets.
1t is asserted by the defense that these |
Judgments have been paid. Three affidav-
its from e. ]. Thomas, civil engineer and
surveyor. and one from T. ]. Davis. were
Med by the defense, their purport being |
to show that the damages claimed would |
NOT accrue to the property.
Inc defense commended that the construc- |
a L.
OF the constitutional provision mentioned |
because that provision. contemplated the |
actual taking or actual injury to private |
property, such as tearing it down |
or otherWise actually DESTROY |
ing II. 1t was claimed that the |
p l had no right to injunction, but |
that his remedy was a civil suit for dam.
ages. After hearing the argument and |
affidavits Judge Falligant took the paners |
and reserved his decision.