Omaha daily bee., 1899-06-23
GRADING OF TWELFTH AVENUE
Question Arises as to 0ity's Authority to
Make Such an Order.
BURLINGTON ROAD CLAIMS CERTAIN RIGHT:
An rdinanc Passed in October, 1853
Granted the Railroad Company
Exclusive Use and Occupancy
of the Thorouphfare.

Since the city authorities have announced
their intention of ordering Twelfth avenue,
between Main and Third streets, brought to
grade, the question has arisen as to whether
the city has the right or power TO enforce
any such order. The object of the resolu-
ton, providing for the bringing Of the street
to grade. which is to be introduced at the
meeting of the city council Monday night, is
frankly admitted to be TO compel the Bur
lington and Omaha & st. Louis railways to
bring their yards to grade. AS previously
stated the grading of Twelfth avenue, which
runs directly through the yards of both com
panies, would necessitate the raising of
their tracks from three to four feet and the
grading of the adjacent property occupied by
them as yards.
From an official Of the Burlington 1t is
learned that his road was contemplating the
expenditure of a large sum of money in the
near future in Council Bluffs. He believed
the company would endeavor to meet the
wishes OF the city, but there was a question
as to the right of the city to compel them
to raise their tracks, or even order that
Twelfth avenue should be brought to grade.
In explanation he called attention to the
fact that the city had by ordinance in Oc-
tober, 1869, given the Burlington the ex-
elusive use and occupancy of the street in
question.
The ordinance referred to is the one grant
ing the Burlington a right Of way through
the city and section 2 is as follows:
said railroad company, for the purpose
of making up it's trains and for the general
transaction of its business, shall have the
exclusive use and occupancy of Walnut
tFourteenth avenue), Commercial (Thir-
teenth avenue) and Durant Twelfth avenue)
SIIPetg. ptWpan Main onl ,uo~a
(Fourth) streets, and shall not be required
to make crossings over the same, and the
alleys between Main and Bancroft (Fourth)
streets, from Walnut Fourteenth ayenue)
street to Farnam eleventh avenue) street.
are hereby vacated.
The section of the ordinance, it is claimed
by the Burlington people, practically va
Gated Twelfth avenue to the railway COM
pany, and that being the case the city now
mas no authority to order that the thorough
fare be brought to grade,
On the other hand the city officials claim
that section 5 of the same ordinance gives
them the power. The section is as follows.
In the construction of said railway track
the same shall be made to conform to the
grade now or hereafter established for said
Streets etc.
Alderman Casper, who is pushing the mat
q VI pIiuslHR IWelttn avenue to grade.
when his attention was called to the Or
dinance, admitted he was not aware of it,
but said he believed 1t would not hold
water. said he: Such an ordinance is not
legal. The city did not have the right
to grant the exclusive use of any of its
streets to anyone. The city had and has
the right to vacate any thoroughfars, the
street thus vacated reverting back to the
abutting property owners. Even If the city
had the right to give the exclusive use
of the avenue to the Burlington, it did
not lose its ownership of the street, and
still retains control of it. | believe the
city has the right to order the avenue
brought to grade If it so sees fit"
The Burlington has received no notification
from the city that 1t intends ordering
Twelfth avenue brought to grade, but when
it does, If the resolution is adopted Mon
day night, II IS believed an amicable ar
rangement will be entered into. There is no
disposition on the part of the Burlington
company to oppose the city, and the mat
ter, 1t is believed, will be settled to the