The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1900-03-22

of Canal Under Its Bridge or to
Construct the Track Which It Laid
Across the Canal.
The opinion of Judge George Purdy
in the equity case of the Erie and
Wyoming Valley Railroad company
against the Erie Railroad company.
which was filed Monday at Milford,
Pike county, is in part as follows:
This is a proceeding by bill, by the
Erie and Wyoming Valley Railroad
company, to restrain the Erie Railroad
company from interfering with the
PLAINTIFFS use for railroad purposes. or
otherwise, of a strip of land formerly
the waterway Of that portion of the
Delaware and Hudson canal which ex-
tended through Pike county from Haw-
ley to Lackawaxen, with fifteen feet In
width on each side of said canal; and
to compel the removal by the defend
ant Of all material deposited or placed
by 1t on the said land. on or after the
twenty-first day of November, 1899.
After stating the facts which he had
deduced from the evidence the Judge
says:
reach the following conclusions of law:
First--At the time of the conveyance
of the canal property by the Cornell
Steamboat company, to the plaintiff.
the canal was not a parallel or COM
peting line, with the plaintiffs rail-
road. within the meaning of Section 4
of Article II Of the Constitution of
Pennsylvania.
Second--The plaintiff corporation ac-
quired no right, by virtue of its pur-
chase from the Cornell Steamboat
company. either to continue the opera
tion of the canal, or to construct and
operate railroad thereon.
Third-So far as the plaintiff corpor-
alton has authority to locate the pro-
posed line of railroad. from Hawley to
the state line, at Lackawaxen. it has
taken the requisite legal steps to do SO.
NOT A BRANCH.
Fourth--The plaintiffs proposed rail-
road from Hawley to I.ackawaxen is
not "branch" within the purview Of
Section 9 of the Act of April 4, 1868.
Fifth--The plaintiff corporation has
no authority in law to construct the
proposed railroad, from Hawley to
LackawaXen.
Sixth--The plaintiff acquired no title
to, or right in the land in question by
reason of it's acts in locating and adopt
ing the route, from Hawley to the state
line at Lackawaxen, for railroad pur-
poses.
Seventh-At the time of the acts by
the defendant. of which the plaintiff
complains. the plaintiff had possession
of the land upon which these acts
We're committed. under a paper title
coming from the Delaware and Hud-
son company-the former owner.
Eighth-The right of the Delaware
and Hudson company to transfer the
land, involved in the issue, to the Cor
nell Steamboat company, and the au-
thority Of the latter company to trans
fer same to the plaintiff. cannot be
questioned by the defendant corpora
tion in this case.
Ninth-The defendant corporation
had no lawful right, either to fill the
canal basin under it's railroad bridge,
or to construct the railroad track,
which it built about November 26, 1899,
across the canal west Of the bridge.
Tenth--With regard to the operations
Of the defendant in filling the canal be-
meath the railroad bridge. the plaintiff
has an adequate remedy at law.
Eleventh-The defendant should be
required to remove from the land in
question. the railroad switch, con-
structed by it after the Injunction or
der was served: and should be enjoined
from any further acts upon or about
the land in question until ii has ac-
quired legal right in the premises.
'rwelfth--The defendant should pay
the costs of this proceeding.
Considerable space is devoted to
discussion of the plaintiffs rights un-
der the purchase from the Cornell
Steamboat company and the opinion
then proceeds as follows:
PLAINTIFFS RIGHTS.
AS to the plaintiffs right to construct
the road as 'branch.'
But if 1t be conceded that this pur-
chase of the canal by the plaintiff gave
it Il perfect title thereto. it gave 1t no
right to construct q railroad thereon.
Such right must have some other
foundation than ownership of the soil
over which it is located.
If, under the branching power. the
plaintiff may build the contemplated
railroad from Hawley to Lackawaxen,
it may also build another branch from
Hawley to Port Griffith, and thus have
two distinct and independent lines be-
tween it's terminal points, under one
charter. And IL the topography OF the
county would permit the construction
of a third line. and some other carry
ing corpora ton We're likely to got in it's
way,it might again go into the branch
ing business and repeat the proceeding
on the other side of its present line:
or it may build from Port Griffith to
LackawaXen direct, instead of from
Hawley.
We believe ii was never the inten-
tion of the legislature. by this act, to
give any such wholesale license to rail-
road corporations.
The operation of the plaintiffs pres
g., l~,.
perhaps. preclude 1t from constructing
branch from the main line at LAacka-
waxen to Hawley. But 1t Is bound, by
the terms of the lease, to pay for the
use of plaintiffs line, fifty thousand
dollars a year for eleven years yet to
come, unless relieved by failure of the
plaintiff to furnish coal for transport
tation over the line, as provided in the
contract Of lease: and, so long as the
lease is in force, 1t has no use for an
other line, over the same territory. But
doubtless 1t Is the purpose of the plain
tiff, in constructing another line. to
carry the coal of the Pennsylvania Coal
company, heretofore delivered to the
defendant for transportation; in which
case the defendant would be forced to
terminate the lease. Then the plain
tiff would own and control two lines
of railroad from Hawley to Lacka-
waXen, and the defendant would have
section of railroad from Hawley to
Honesdale. with no connecting link
from Lackawaxen and with no feasible
route over which to construct one.
There is no express provision in the
lease. requiring the plaintiff to furnish
freight to the defendant and no stipu-
lation that plaintiff shall not construct
another line. hut, in view of the situa
tion we do not feel 1t our duty to
strain any points in aid of the plain
tiffs operations.
ABOUT FILLING CANAL