Evening journal., 1900-10-26

WAYS of the city OF Wilmington under
a proper regulation.
Defendans In section of The
answer deny amy Wedge cf the De
partments rules and regulations and
forms as set forth in paragraph4of of the
amended bill. and also deny that COM
pllance with such rules and forms Isl
necessary where said department had
peremptorily denied the right 20 eater.
Section Of the answer admits that
the said Department was notified OIL
their intention 20 enter upon and ex-
cavate Liberty street as alleged I'M
paragraph 5 OF the amended bill, but
denies that the letter of their counsel
of March 80. 1897, was the only propo-
sNion made by tnem. and alleges that
an application OF some sort was made
prior to May l3. 1890, lur permit toI
omen Shipley street Wn.cn was reused
on that date by resolution o. tlt-
board. That latter on. an application
was made to open Monroe street, which
was refused august 8. 1880; that sub
seouently. on December 3, 1892 after
the institution of this suit, the Oxy-
Hydrogen Company instructed their
president TO appear before the depart
ment with a view to terminate the Ut
igation, and aulnorized him TO pledge
the respondents would consult the de-
partment from time TO time before
opening the Streets but that this
offer was refused and q copy Of the
solicitors letter refusing is annexed
and made "A part OF the answer in
which he observes that there is "a
marked difference between consulta-
ton and obedience" That subse-
quently on say 2. 1899. a further petit
ton was presented and finally on july
5. 1893. for the first time 'an applica-
ton upon the form set forth in COM
plainants bill was presented The
last two applications remain unan-
swered SO far as appears from the
ploadings and argument In this cause.
Defendants again admit the police
power of the municipality 20 regulate
the use of the streets. but deny its
right to refuse to allow the Oxy-Hy-
drogen Company. under it's charter; to
enter the streets under proper reglla-
tions. and aver that they are now and
always have been willing to conform
to proper regulations.
Paragraph6 of the answer sets forth
a certain construction agreement be-
tween John Edward Addicl1s, one of
the respondents, and the OXy-Hydro-
gen Company. although it states, that
under which agreement the said John
Edward Addicks constructed gas
holder upon marsh land adjoining the
Harlan and Hollingsworih Company
and that in excavating the streets he
was acting under the agreement.
Defendants answer further claims
vested property rights in the Oxy-Ily-
urOgen Company under its charter. and
also by virtue OF the said agreement
other vested rights in the said John
Edward Addicks TO enter upon the
streets OF wilmington. which cannot be
impaired by any subsequent action OF
the legislature of Delaware or the
municipal authorities of Wilmington
The answer finally denies that the
opening and excavating of the streets
would be detrimental. etc. and in the
last paragraph again asserts the right
OF the OXy-Hydrogen Company and It's
agents TO enter the streets OF the city
OF Wilmington under its charter upon
complying with the proper police reg
uiauons as to the manner of such
entry. and denies the right Of the city
authorities to refuse peremptOily To
allow such entry
An affidavit of W. II. Miller, secre-
tary Of the 0xy-Hydrogen Company
was presented by defendants in sup
port of the allegations of the answer
in regard to the applications made
to the department, and to the con.
struction agreement with j. e. Ad
dicks
IL appears from this extended re-
view of all the allegations con
tanned in the amended bill and IN,
answer, that the question now pre-
sented to the court is whether or NO
Il Will enjoin the defendants from en-
tering upon and eXcavating any stree
or streets OF the city of Wilmington
without first obtaining a permit so 4
do from the Board of Directors Of thI
Street and Sewer Department of thl
city.
II also appears that 1t Is explicit,
and repeatedly admitted by the de
PENDANTS IN their answer. that the Stree
and Sewer Department Possesses tn
police power 10 regulate the use OF tn
highways of the city; and the reason
ableness Of the regulations adopted I
1889 and recited IN the amended bi
concerning the application for a per
init to eXcayate the streets, is not dis
puted for although In Section 4 OF th
answer. defendants deny any know
edge of them, yet in Section the
allegc. as above quoted. that they file
on july 3, 1899, an application in a.
cordance with the forms prescribe
undertaking to comply with all q
rules and regulations OF the depar
ment, said application being annexs
TO and made part of the answer.
The defendants also claim. that II
asmuch as the Street and Sewer d
partment has no authority TO refu
to grant the Oxy-HydrOgen Compar
such a permit, therefore their refus
50 TO do in the manner above set fort
although the defendants are ready an
wiinng to comply with the prescrih'
regulations. jusufes them In prOcee
ing 10 enter upon and excavate Il
streets under the charter of the OK
Hydrogen Company without a pc
NIT, and for that reason the Court
Chancery viii refuse to grant the pr
liminary injunction prayed for.
RESPONDENTS HAVB NO RIGE
TO TEAR UP STREETS.