The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1900-08-17
INJUNCTION
!. GRANTED AT
!. MlOUNDSYlLLE
By Judge Melvin in the Case Of the
City Of Benwood Against Wheel;
ing Railway Company.
IN PREVENTS THE CONNECTION.
Of the Tracks Of the Proposed Ken
lucky Heights Branch With Il
the Main Line.

u
Yesterday. at Moundsyille, Judge
Z Melvin. Of the circuit court Of Marshall
county granted an injunction In, the
!; cause entitled the City Of Benwood vs..
the Wheeling Railway Company. which
Z prevents the latter from connecting up
the tracks OF the proposed Kentucky
Heights branch With the main line on
Marshall street, in Benwood.
The Injunction, In reality, Is With
out effect. asait Is learned sthatiit was
mot the Intention of the. railway COM
d pany to connect up the two lines. 1t
= is only intended to operate the Ken
lucky Heights line as branch re-
ceiving through passengers at Its up
( pers and lower terminl respectively.
and transferring them to the Wheeling
and Moundsyille lines without the ne
cessity Of being taken through Ben
wood proper. involving two very. dam
gerous crossings. The work of put
ting In the Kentucky Heights branch
willgproceed. as the Injunction enjoins
the company from doing nothing that.
1t intended to do. The company has
acquired property along the heights.
and the branch road will not occupy
4 my public thoroughfare. -.
The injunction granted by Judge
4 Melvin Is US follows:
The plaintiff presents It's bill. after
I. notice, praying for an Injunction re-
straining the defendant from using
Marshall street, In said city. In doing
Z what may be necessary In connecting
It's main line and n lateral branch road
by 1t proposed to be constructed. )
!, g 1t Is conceded that before such con-
J nection Is made or attempted the con-
sent Of the council Of the city must be
obtained. Indeed the company seeks to
answer, and n Its rendered answer the
4 Intention to SO use or occupy said street
in the absence OF such consent, Is ex-
pressly dIsclaimed: and Its counsel, In
argument. reterates the disclaimer.
The answer Is objected to. however, and
the statements Of counsel as to the In
tentions Of the company are not ac-
!{cepted by the plaintiff.
Under the rule OF practice favored by
z our appellate court. price VS.. Mounds
willie, 3gW. Va.). the consideration OF
:; answer and opposing afiidavits Is not
thought to be regular OF proper at, the
preliminary hearing. The application
must be heard solely upon the plain
tIff's papers. 81
The bill sets up, substantially that
the defendant Is about to build such
lateral branch road. to connect with Its
main line at point on said street: that
the permanent use thereof Is necesar-
lily involved thereby: and that the
council of the city has. upon Opplica-
s ton, refused such use. The evidence Of
intention consists of petition recently
filed by the defendant in the circuit
court OF Marshall county, having for
its object the condemnation of certain
lands on the branch line, and stating in
effect, that the petitioner is about to
4 build, construct and maintain such lat
eral road, the same TO be part OF its
road. and 10 be used In connection with
" Its main line for the transportation OF
passengers. ists tSs.
- There Is here no qualifying clause.
No contingency is mentioned: no delay
seems to be contemplated. Apparently
at least. the present idea Of the COM
pany, as thus developed, Is to build the
branch and connect 1t with the main
= line on Marshall street without refer
ence to any prior grant OF authority by
the council; and rs nothing further
than the bill and exhibits can be heard
or examined here, 1t must be held that
occasion for the lnterposition Of q
An Injunction may issue; bond. $500.
subject Ia be increased or diminished
upon application.
Before the injunction was granted,
the comrany's attorney. Mr.. William
!. Erskine. endeavored to file an answer
to the declaration on the part OF the
plaintiff, but counsel for the latter OBJ
jected, stating that only the plain!ff
may be heard In such proceedings, and
his objection was upheld. However, us
the answer OF the defendant gives In
succInct fashion recital Of the trouble
between the city OF Benwood and the
railway company, parts OF 1t are here
printed:
q since the completion of the said
Moundsville. Benwood C Wheeling
Railway very large proportion OF the
passengers travelling over the southern
portion Of this defendants road In
Benwood are through passengers, who
are now carried unnecessarily around
number oC squares in the city of
Z Benwood and across two double track
Z grade steam railroad crossing to the
great delay, inconvenience and risk of
= such passengers, as well as to the In
q convenience and great financial risk to
this defendant, Wheeling Railway
Company, on account of accidents.
THE street which Is In the bill called
Marshall street. Is located east of, and
parallel with. the Baltimore & Ohio
railroad and was formerly called the
81 county road. This. from Fourth street
northward and from what has been
z known us Ninth street southwark. is
the only public highway leading north
and south through the said city. be-
tween these two points. to-wit:- Fourth
and Ninth streets, II has been cut Off
and abandoned by the said city. 1t has
! been so treated by the authorities of
said city as to be entirely closed against
the public IN front OF Walter Duggan's
property tat Ninth street, go that all
travellers are compelled to turn aside
and go over Il dangerous grade cross
ing OF the Baltimore e Ohio rallroad at
that point. The said city has. In re-
cent years, SO repaired the northern
portion OF the said abandoned part OF
the old county. road as to make It pos
slble for persons living along the same
to haul coal or other necessary commo-
L ditIes over Il 10 their houses, but the
said street mas MI the time since the
Incorporation os the city. or very short
ly thereafter, been practically closed
against the public so that those trnv-'
Cling through the said city are requir-
( ed TO encounter two unnecessary grade
crossings over the Baltimore & Ohio
railroad at
ct Iy true that this defendant desir-
ed to make II short and sRfe connec-
ton from It's track In Marshall street
at or. near Fourth street, by extending
. new track directly southward along
the said abandoned portion OF Marshall
street, east OF the Baltimore & Ohio
IA. a.