Omaha daily bee., 1899-08-10
STRIFE OVER UNION AVENUE
City Will Attempt to DispossesS Union
Pacific of Right of Way.
CONTRACT is SAID TO HAVE BEEN BROKEN
Ordinance Granting Franchise Pro-
vided Certain stipuIntions which
Are Alleged to Have Been Dis
regarded by Company.

At the city hall yesterday 1t was stated
that the council had no intention OF reced-
ing from its action OF last Monday night
in regard to the matter of the Union Pa
cifc railway and Union avenue and that
City Solicitor wadsworth had been given
explicit instructions to take the necessary
steps looking to the annulhent Of the COM
pany's franchise on that avenue. Acting
upon these instructions, it is understood
that Mr.. W%adsworth will commence suit in
the district court this week against the
railway, in which the court will be asked
to order that the franchise on Union avenue
granted to the Union Pacific by ordinance
in 1881 be cancelled.
In the suit to be brought the city will
contend that the Union Pacific has not
abi6ed by the terms and provisions OF the
ordinance giving 1t the franchise over Union
avenue and that by it's failure to live up
to its contract with the city 1t has for
feited all it's rights to and on said thor
oughfare. 1t is claimed that the ordinance
and the acceptance thereof by the railway
company constituted a contract between the
city and the railroad, making the duties,
rights and obligations contained therein
equally binding upon the city and the Union
Pacific.
wording of the Ordinance.
On the part OF the city 1t is commended
that by section 2 of said ordinance the COM
pany agreed to operate over its track, in
Guiding the track laid on Union avenue, a
passenger train from the junction of Union
avenue and Broadway in the city Of Coun-
Gil Bluffs to its passenger depot in Omaha,
said trains to be run not less frequently
.L,- Or, 1oIF h0,~ avnnnt Snniauc md
to be At and suitable to accommodate first
class travel.
Further, that the railway company for a
period of over ten years last passed, has
failed and refused and still ueglects and
refuses to comply with these requirements
and has abandoned all passenger trains
from Union avenue and Broadway to its
depot in the city Of Omaha.
Also by the acceptance Of the ordinance
the railway company agreed that the rights
! granted in the ordinance were granted upon
the contract and agreement that it should
build, construct and complete said road to
its aforesaid depots during the year 1888,
and should further accept and perform each
and all of the contracts and agreements
therein fixed and that it's rights to occupy
| said Union avenue was granted only so long
as it should faithfully keep and perform
the contract and agreements therein men
toned and that whenever 1t should fail to
substantially comply with and keep these
| contracts and agreements for a period of
thirty days, its right to occupy Union av-
enue should terminate and cease and the
rights of the city of Council Bluffs and this
council over the avenue should be resumed
and the city and it's officers should be en-
] titled to the possession thereof, and that
| all tracks, switches and turnouts should be
removed by the railway company and that
the city might in default thereof remove
the same at the expense of the railway COM
pany.
Defense of Union Pacific.
p, On behalf of the Union Pacific, It is
claimed by its local attorneys that the road
has complied with all the provisions Of the
ordinance granting the franchise and that
when the dummy service between Ninth
and Broadway and Omaha was discontinued,
there being no further need for such serv-
ice, 1t was discontinued with the full sane
tion of the then city council.
This claim, however, Is contradicted by
City Solicitor Wadsworth, win in his re-
cent report to the city council relative to
Union avenue and the city's rights thereto,
said:
by reference to the abstracts of the pro-
ceedings of the city council, it will be seen
that the council has at no time, either di-
rectly or indirectly, recognized that the
Union Pacific Railway company had the
right to discontinue the running of dummy
or ferry trains as required by the grant.
The city council has treated this question
- a Skeleton in the closet and whenever
the Union Pacific neglected or refused to
pay taxes, build bridges, repair crossings
or enter into a contract to build a union
depot some councilman would trot out this
skeleton and attempt to brighten the Union
Pacific to acquiesce in the wishes of the
city council.
at seems that in view OF the record, the
city council has done no act or acts that
were intended to waive the right of forfeit
ture, and 1t Is questionable whether or not
the city council, by Its acts, can waive a
forfeiture of the right and authority Of
the state to institute and maintain quo
warranto proceedings with a view to GUST
the Union Pacific railway from its posses
sion of Union avenue"
District Court Notes.
The Duncan Shoe company OF this city
brought suit in the district court yesterday
against the lows Merchants Mutual Insur-
ance company of Burlington for 500 insur-
ance on stock and fixtures partly destroyed
by fire last February. The Duncan Shoe
company carried with the defendant company
$500 insurance on stock and 5000 on fixtures.
It's store at 2S South Main street was partly
destroyed by fire on the night Of February
9 last, but so far the company has failed to
pay the insurance. b. M. Sargent and A. d..
Morse, who we're appointed appraisers to de-
termine the loss reported that previous to
the fire the stock inyoiced 81, 4O1. 40, and that
the damage by fire amounted to 81, $50. 81.
All the other concerns In which the shoe
company was insured have settled.
Julia Il. Thompson has commenced suit
against John S. Morgan, as sheriff of Potta-
wattamie county, to recover for an alleged
wrongful attachment. The plaintiffs hus-
band, George o.. Thompson, conducted the
Boston Bazaar in Nicola and Sheriff Morgan
made a seizure to satisfy a judgment secured
by Edith M. E., Reed against him. Mrs.
Thompson now claims that shoes to the
value of s427.60 and a bank account of $3.50, 70
were her individual property and sues the
sheriff for these respective amounts.
Mayne & HaZelton attached real estate be-
longing to Mrs. Amelia Berney to secure
their claim OF $500 for attorney fees in the
litigation brought against Mrs. Berney by
Herman Herwig,
Anna Clark filed a petition for divorce
from Silas w. Clark. The papers were with
drawn by the attorney for the plaintiff inn
mediatefy after filing to prevent the par
iculars becoming public.