The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-10-02

to Provide for Opening Of Street
as Provided by Law.
Judge r. w. Archibald in ar opin-
ion handed down yesterday, on the
existing differences between the Della
ware and Hudson company and the
city Of Scranton, anent the Poplar
street crossing, decided that that
thoroughfare does not extend across
the tracks of the company. He gives
the city thirty days in which to take
the proper steps to open the street,
and says that If these steps are not
taken within that time, the restrain
ing injunction granted the company
will be made permanent.
The facts in the case are we'll known.
The city took steps to open Poplar
street across the Delaware and Hud-
son tracks in order to afford means Of
ingress to the Scranton Bolt and Nut
works. The railroad company imme-
diately erected q fence just the other
side of the tracks, barring all en-
trance to the Bolt and Nut company's
plant. This was torn down by order
of the mayor and was again erected
by the company.
1t was torn down 81 second time by
the city and is down at present. Both
the city and the company secured in
functions restraining each from both
ering with the other. Both of these
were disposed of and then court took
hand, granting an injunction to the
company, pending a decision to be
given after the submission of both
sides of the case.
CITY'S CONTENTION.
The city's contention is that Poplar
street already extends across the
tracks. inasmuch as OH the maps of
the Lackawanna Coal and Iron COM
pany ceding the land to the city, the
street crosses the Delaware and Hud-
son right OF way and also by reason
of the fact that a sewer has been con-
structed, crossing this right of way,
and emptying into the Lackawanna.
An ordinance has already passed both
councils and has been signed by the
mayor formally accepting the street
from the Lackawanna Coal and Iron
company, it having been thought that
this action alone would be sufficient to
establish a. right of way across the
tracks.
Judge Archibald, in his opinion, after
citing the facts in the case, contends
that the map referred to was for the
purpose of description only and that
it is not intended to limit the grant,
but merely to locate it and show the
surroundings.
The ordinance laying out the sewer,
he says, accepts the street as far as the
city is concerned, but the recognition
Of this sewer by the company was not
necessarily an acceptance by it of the
street on which it was laid. The per-
mission to construct this sewer was for
that purpose only and was not for the
opening of a siXty-foot street across
the tracks.
"The city has the right to repair
this sewer" says the judge, "but no
larger privilege than this is to be i'm
piled"
The judge af1irms that the city has
a perfect right to open a street across
the right of way of the company, pro-
viding the proper steps are taken.
These proper steps have not been
taken, he says, and therefore the COM
pany is entitled to have it's rights pro-
opinion says:
ACTION NOT SUFFICIENT.
1t was suggested at the hearing that an ordi'
nance would be put through councils remedy
ing this, and The final disposition Of the case
was deferred to allow of its being done. The
result, however, is disappointment. The ordi-
nance which passed Aug. 81 last amounts to
nothing in that direction. 1t consists merely
~ e,at tnl,
upon the situation, and declaration in opposi'
ton to the contention of the railroad company,
that the street had been opened by virtue OF
them. 1t would be convenient doubt, to
dispose in this way of the controversy by which
the city is confronted, but it is not to be done
by any such counclmanic say-so. Nothing short
of that which has been pointed out above will
do. TO permit the proper steps to be taken
in case the city authorities, after failing of this
opinion, are so inclined, The final decree will be
deferred reasonable time; but unless they avail
themselves OF this privilege the Use of the
crossing in opposition to the rights OF the rail
road company must be restrained.
The following order is then append
ed:
Let this case stand over for thirty days, within
which time, il due action be taken by the city
OF Scranton to open the street in controversy ac-
provided the bill will he dismissed on payment
Of cost; but ii not, let decree he entered
awarding an injunction as prayed for in the bill,
with costs to be paid by said city.
BY the Court. II. W. Archibald, 7. j.
The necessary legal steps referred to
by the judge are the passage of ordin-
ances declaring the street open and
providing for the appointment of view
ers to assess any damage which might
be caused by the opening of the street.
The ordinance declaring the street
open has already been passed, as mem
toned above, and 1t only remains for
councils to provide for the appoint-
ment of viewers in case they wish the
street opened.