The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1900-04-11
AGAINST THE
SPRINGS ROAD.
The Chancellor Decides
Against the Brandy
wine Springs Rail
way From Laying
Their Rails on
Sixth Street.

cellor was readlng MS opinion Oh
the Brandywine Springs Road,
besides Attorney Hillcs and Willard
Salisbury for the contending rail-
ways.
Chancellor Nicholson this morn
ing at 10 o'clock handed down his
decision in the injunction suit Of the
Wilmington City Railway Company
against the Wilmington and Bran
DIVINE Springs Railway Company.
The bill in this case was filed on
November "a. 1899, and prays as
follows: That the said respondent,
the Wilmington and Brandywine
Springs Railway Company, may
fully and truly answer this bill of
complaint, but not under oath, the
same being hereby expressly warn
cd.
That the said respondent, its
successors. officers, employees, work.
men, contractors, agents, deputies,
and attorneys. may be restrained
by the injunction of this Honorable
Court. from locating, constructing,
operating or maintaining city
railway within the city limits OF the
city of Wilmington; from GU ting,
tearing up or removing the tracks
of your rator, OF any portion there
of; from hindering or delaying the
operation OF the cars over the lines
OF your orator; from interfering
with, cutting orrcmovlng the trolley
wires OF your orator, or any por-
ton thereof, and IRON operating or
attempting to operate its rallw ay,
except in accordance with the terms
of the contract hereinbelore set
forth etc.
The respondent filed its answer
January 3, 1000. Atlidavits have
been presented and read on both
sides and the questions involved,
argued by counsel upon the motion
for a preliminary injunction, with
extraordinary fullness, etc.
The complainant operates many
niles Of electric street railway in
the city OF Wilmington, by what is
known as the trolley system, and
claims a vested right, so long as its
charter is unrevoked, the exclusive
right and privilege OF loca ting, con-
structing, operating and maintain
ing street railway Ill the city of
Wilmington under its original char
ter. passed at Dover February 4,
1860.
The Chancellor then cites a num-
Der OF cases bearing on the matter
and then renders his opinion against
the Brandywine Springs Road en-
tering the city.
He concludes his opinion with the
following:
1.-The only fact in the case which
I have not yet mentioned and COM
mcntcd upon, is that OF the contract
or traffic agreement between the
respondent, the Brandywine
Springs Railway Company aud the
complainant, the Wilmington City
Railway Company, executed on the
10th OF May, 1898. This agreement
was made to continue for period
of Is years and contained stipu-
lation on the part OF the Brandy
wine Springs Railway Company,
| that during that time it would not
attempt to extend its tracks into
or within the present limits of the
city Of Wilmington, and one of the
grounds upon which complainant
based his prayer for relief was to
restrain the respondenttro from vlolat-
ing this stipulation.
The respondents contention in
reply TO this was that the stipula-
ton was ultra wires and also against
public policy as being IN restraint
OF competition and IN this contcn-
ton it is undoubtedly correct. 1t
is well settled that corporation
has no power to deprive itself of a
franchise accompanied by public
duty, such as the construction and
operation of a railway. without ex-
press legislative sanction, and this
the Brandy wine Springs road did
not possess. For although its orig
inal charter gave it the right to
make traffic agreement with the
Wilmington City Railway, hegrant
of the franchise to extend its line
within the city of Wilmington was
subsequent to that, and, therefore,
could not be held to be included
within the right.
1t is also we'll settled that 4 court
of equity would not enforce stip-
ulation OF this character by injunc-
ton.
The respondent based upon this
contract the claim that by its COM
plainant was cstopped to deny tn C
corporation existence of the Bran
DIVINE Springs Railway Company.
In regard to this contention it is
ouly necessary to state that there
could be 10 estoppal except as to
matters arising out Of the contract.
Although the case has been ar
gued on motion for preliminary
in junction, 1t could not have beer
discussed more thoroughly at a fl
nal hearing. and have deemed il
necessary to tie at the questions
raised with the same thoroughness
because the reasons upon which
decide the motion for prelimlnarJ
in junction are the same as woult
control my decision in making ii
nal decree.
The motion for preliminary in
junction is granted. Let the orde
be entered accordingly.