The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1899-04-23
Brigham Street Injunction Vacated
BY Judge Cherry.
CASE GOES TO TRIAL
BUT COMPANY CAN PROCEED
WITH CONSTRUCTION.
Court Failed to See How Property
Would Be Damaged By Construc-
ton of Street Car Line-If Com
pany Loses, Tracks Can Be Torn
Up and Line Abandoned.

Judge Cherry yesterday set aside the
restraining order in the case of the
State of Utah, eX. rel. John Dern ct al
VS.. the Salt Lake City Street Railway
company, and nothing now binders the
railway company from laying its
tracks east on Brigham street To
prevent this. the citizens residing on
that thoroughfare east of f street
have been fighting for over a year.
While Judge Cherry did not dismiss the
action he orders that issue he Joined
/ Immediately and that the case be set
/ for trial as soon as possible.
In his decision, Judge Cherry says:
THE defendant company appeared in
/ court and objected to the right or pow
er of the court to grant a preliminary
restraining order, and insisted also that
the action was not properly instituted :;
that it was not brought by the attor-
ney general, and that the court erred
in permitting the complaint to be filed
without notice to the defendant. There
| is discretionary power given to the
court to file such an action without
notice, and no such abuse of discre-
ton appears in this. case as would war
rant so summary disposition of the
action
AS to the other point, that the &C
ton is not brought by the attorney
general, but by private citizens it
would perhaps be sufficient to say that
this question would more properly arise
on a demurrer, that the plaintiff has
not legal capacity to sue. A direct
ruling on these questions is reserved
until they arise on a proper appearance
of the defendant by demurrer, motion
or answer.
l.. e -
inaSmuch as the court has exercised
its discretion in permitting the COM
plant to be filed, it would be erroneous
to dismiss the action at this time, and
the request of the defendant to dismiss
the complaint will be denied.
Question of Injunction.
"The other question, as to whether or
not an injunction pendente lite should
issue, or whether the temporary re-
straining order heretofore made should
be vacated or not, will be briefly con-
sidered. This action is instituted in
the name of the state of Utah on the
relation of number of citizens. The
complaint, among other allegations,
says in substance. that great and ir-
reparable injury will ensue to abutting
owners by the threatened construction
of street car line in the street afore-
said; that said injury will be occa-
stoned by a depreciation of the value of
the REALTORS property etc.
In what manner the construction of
street railway in the public street
would cause damage or depreciate val
ues is not shown. 1t is not claimed
that the free use of the street will be
interfered with; that there will be any
resulting annoyance or danger. The
complaint states conclusions rather
than specific facts, as the grounds for
injunctive relief. Also, there is no
showing that whatever damage may
accrue during the tendency of this ac-
ton, cannot be fully reimbursed to
those affected, should the final deter
mination of the action be in favor of
the plaintiff. In that event, the street