The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-06-28

The decision by Judge ]. w. Simon
ton, of Dauphin county, in the quo
warranto proceedings over the Erie
and Wyoming Valley Railroad COM
pany's right to construct its proposed
connecting link between Hawley and
Lackawaxen is another signal victory
for the promoters of the new Delaware
Valley and Kingston road.
When the decision has been received
in the Supreme court, to which tribunal
it is to be appealed, there will be an
end to the litigation at present pend
ing in this state between the oppon-
ents and promoters of the new road.
1t Is not the end of the fight, how
ever. Today in Albany the appellate
division of the Supreme court is to re-
view the finding of the New York state
railroad commissioners, which, it will
be remembered, reported favorably
upon the application for permission to
construct the new road, which was so
vigorously opposed by the Erie COM
pany.
RULE PENDING.
There is also pending in the United
States Circuit court a rule for an in
junction to restrain the Erie and Wyo-
ming company from building the Haw-
-Lackawaxen branch, on the ground
that It would be a breach of contract
with the Erie, to which company the
Erie and wyoming In 1885 leased it's
original line from Hawley to Lacka-
waxen for twenty-five years, with the
proviso that all the Pennsylvania Coal
companys business, east of Lacka-
90 fn hp ri
tion for a preliminary injunction was
refused on the ground that the ques-
tion between the two companies was
not wehther the defendant has a right
to build the branch, but that IL there
is question at all 1t is one that will
not arise until the defendant company
attempts to use the branch in viola
ton of the Eries contract rights.
The proceedings in which the Simon
ton decision was made Tuesday COM
prised a quo warranto brought by the
Erie in the name of the attorney gen.
| eral to compel the Erie and Wyoming
to show by what right It presumes to
build the Observation-Disclosures branch.
The Erie contended that the Erie
and Wyoming had exhausted its char
| ter rights for the territory in question
| NiltH IL uldut Il main line from Fort
| Griffith to Lackawaxen by way Of
| Hawley, and that the contemplated
Hawley- -Lackawaxen branch is a par
alleling by the Erie and Wyoming Of
its own main line.
MADE ANSWER.
| The Erie and Wyoming made answer
that 1t proposed to build the line in
| question under authority of the
| branching" power accorded by Sec
ton 9, of the Act of April 9, 1868, under
which it is chartered, and which reads
as follows:
| ANY company Incorporated under
this act shall have authority to con-
struct such branches from its main
line as it may deem necessary to in
! crease its business and accommodate
| the trade and travel OF the public"
Claiming to act under this clause
the Erie and Wyoming directors, at a
meeting, held Nov. 8, 1898, passed a
resolution providing for a "branch"
from its main line at Hawley to Lack
| AWAKEN.
This branch leaves the line of the
present road 200 feet west of the Haw-
ley station, where the western end of
| -,
crosses the LackawaXen creek, and
| follows the windings of it's stream
eastward for a distance Of about four
teen miles, until it approaches Lacka-
waxen borough, when it re-crosses the
creek, runs through the village and
| terminates at the centre of the Della
ware river, intending there to connect
with the projected road to be built
| m ha
Hudson river.
After reviewing the facts In the case,
as outlined above, Judge Simonton
dismisses from consideration the ques-
tion of the defendants good faith, in
these words
QUESTION OF GOOD FAITH.
I'VE are not sure that we apprehend
precisely what is meant by counsel by
the alleged want of good faith. We
understand that the question of good
faith is a question between the COM
monwealth and the defendant, and
that when the latter honestly and fair
ly states it's real purpose in wishing
to buil1 the branch, and intends to
build it, II is acting in good faith. If
we are correct in this, there can be
no doubt here, for 1t Is, as we have
seen, conceded that the defendant has
honestly and fairly stated that the
purpose is to connect with the road to
| Kingston; and it certainly intends to
build the branch.
I'VE infer from the connection in
| which the question of good faith was
mooted, that counsel for the common
wealth consider that the alleged bad
faith lies in the fact that defendant
seeks to build the proposed branch and
to connect with another road after
having leased part of it's line to the
Erie company. But this, If a breach
of good faith, would be such as against
the Erie company and not against the
commonwealth, and its quality would
depend on the contract relation be-
tween the two companies, with which
we DO Tot think, the commonwealth
has anything to do"
Judge Simonton then quotes a batch
of decisions interpreting the "branch-
ing" power clause of the act of 1868
and says:
POWER CLAUSE.
"In view of these repeated affirma-
tions that the language of the act
(that any company, incorporated un-
der this act, shall have authority tC
construct such branches from its main