The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-12-27

again. Judge Edwards yesterday re-
fused to continue the Delaware and
Hudson companys preliminary injunc-
tion against the city under the pro-
lection of which the fence was re-
erected and this morning the mayor
will order the street commissioner to
re-raze the fence.
Last June, when the Bolt and Nut
company selected the site for it's works,
the Delaware and Hudson company
raised fence along its tracks, block
aiding what would be the extension of
Poplar street The city tore down the
fence and laid a plank crossing. Then
the company tore up the crossing and
re-erected the fence. The city once
more tore down the fence and then re-
laid the crossing.
Ey this time the company reached
the courts and secured from Judge
Edwards a preliminary injunction re-
straining the city from interfering with
the maintainence of the fence. At
once the company again put up the
fence and took up the crossing. Yes
terday Judge Edwards decided that
there were not grounds enough to
make the preliminary injunction per-
manent and dissolves It. This leaN es
the city free to exercise its superior
force in gaining possession of the
crossing and ii proposes to do so at
once. The case is set down for a final
hearing next Tuesday, when all the
features IF the case will be presented
MAY GO Up AGAIN.
Should the permanent injunction be
granted, the fence will go up again
and the crossing will be removed
Should the court, however, decide that
the crossing is a part of Poplar street
and not portion of the company's
right of way, the fence and crossing
will stay down and the thoroughfare
will remain open to the public
Appended is the full text of Judge
Edwards opinion dissolving the pre-
liminary injunction:
The Northern Coal and Iron company
and the Delaware and Hudson Canal COIN
pany lessces, VS.. the city of Scranton
and Roland d. Thomas, street commits
sioner Rule to continue preliminary in
junction.
The question involved in this case re-
lates to the extension Of Poplar street
the plaintiff company. The plaintiff
claims that Poplar street is opened only
to the easterly line of their right of way
The defendants deny this and contend
that the street has been lawfully opened
across the tracks to the Lackawanna
river
When the bill of complaint and injunc-
tion aflidavits were presented to us, our
intention, in allowing a preliminary in
junction, was to preserve the status in
quo between the parties until their rights
could be established at a final hearing
The allegation which induced us to grant
the injunction is to be found in the seven
tcenth paragraph of the bill, which states,
that the street commissioner of the city
of Scranton tore down the fence which
had been erected by the plaintiff along
the said right of way and proceeded to
lay crossing along the railroad tracks
thus extending Poplar street beyond its
westerly terminus by force.
WOULD JUSTIFY INTERVENTION.
Such action would be unwarrantable
and would Justify instant Intervention by
the strong arm of our equity power.
At the hearing on the rule to continue
the preliminary injunction we confined
the parties on both sides to testimony
showing the condition of matters exist
ing before the present controversy arose
At this hearing it appeared clearly that
the fence referred to in plaintiffs bill
was erected in June of this year. This
was the fence which the city authorities
removed, claiming that it was an OBJ
struction to the use of Poplar street. The
building of this fence and its removal
originated the present contention between
the parties.
hn sirrlnt Of tl, all as,,,f
maintain the fence referred to and thus
prevent the public from crossing the
plaintiffs tracks is not by any means
clear At hcst it is not so clear as TO
warrant us in continuing the present in
junction. The evidence already taken di-
reCtly and incidentally involves several
questions. We are content with merely
stating what these questions are.
First-The use that has been made by
the public of the alleged extension of
Poplar street across the plaintiffs rail-
road tracks before the erection of the
fence i'm Jure, 1899. Were the pedestrians
who crossed these tracks daily before
that time merely trespassers or did they
have the right to cross as travellers over
a city road?
Second-Was Poplar street to the Lack
awanna river dedicated to public use by
the Lackawanna Iron and Steel company,
and did the plaintiff company acquire
its right of way subject to this public
use? On this question reference is made
to the map of the town plot of the city
If Scranton and to the eXemplifed recoru
In the case Of the Lackawanna Iron and
Coal company VS.. the Baltimore Coal and
Union Railroad company.
WHERE RIGHTS ARE IN DOUBT.
Where the relative rights of the parties