Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-08-17

on Ground Acquired by the Conn
pany Along the old County Road.
Judge Melvin, in the Circuit Court,
yesterday granted the prayer of the
city of Benwod for an injunction to
restrain the Wheeling Railway Com
pany from occupying Marshall street
wits it's tracks, and from making a
connection on that street north Of
Fourth, with lateral branch along
Marshall street.
The situation is peculiar because OF
the contention of the railway officials,
that they are enjoined from doing
something which they never contemp-
lated, and that therefore the injunc-
ton amounts to nothing. The con-
dition OF affairs in BenwOd is generally
understood. Marshall street is the
name given to the old county road
from Fourth to Eighth streets, a dis
lance of nearly half a mile. It runs
along the hillside. At Eighth street it
is closed and piling driven. The
north end is open, and is used for
hauling to and from residences in that
section. 1t forms the only direct
route through Central Benwood, and
the railway company asked Council to
permit the construction Of a lateral
branch to connect with the Mounds
Vile line at Eighth street, the advan-
taees to be derived being a quicker
route, and avoiding the danger OF
crossing the B. & O. tracks and grade
twice.
Council refused to grant the request.
Ihe railway ordinance provides that
all cars must run over the tracks IN
Renwood, and Council was disposed to
enforce it, Then the railway company
secured the titles to all the properly
along and including Marshall street,
between Fourth and Eighth, extending
back at all points at least loo feet from
the old county road Under recent
decisions of the courts the railway
company was compelled to concede the
right of the public to the use OF the
road. but contemplated the building or
the lateral branch upon its own prop
erty. acquired by purchase. AT Eighth
street is was the purpose TO institute
condemnation proceedings In order 10
secure the property of Watt Duggan,
and it was proposed to make con-
nection with the present line on Mar
shall street at a point within 800 feet
of Fourth street.
Officials of the road stated to the
Register last night that they never
contemplated making the connection
referred to without the consent OF
Council. Neither did they intend 10
use Marshall street. These are the
two things they are enJolned from
doing. The officials added, however
that they will certainly build the later
al branch and operate it, and II neces-
sary, transfer passengers at Tenth ana
Eighth streets.
The order handed down by Judge
Melvin reads as follows:
The plaintiff City of Benwood. presents
its bill. after notice, praying Lor an M
junction restraining the defendant from
using Marshall street, in said city, IN 10
ing what may be necessary in connecting
its main line and a lateral branch ROAD py
il proposed to be constructed.
Ii is conceded that before such conhec-
tiOu is made or attempted the consent OF
the council of the city must be obtained.
Indeed the company seeks TO answer, ana
in it's rendered answer the intention 70
use or occupy said street, in the absence
of such consent, is expressly diSclained;
and its council in argument, relterateS
the disclaimer The answer is objected
TO, however. and the statements of ceun-
sci as to the intentions OF me the company
Under the rule of practice Favored Dy
our appellate court price V. MoundsVllle.
AZ w. Val. the consideration of answer
and opposing affidavits not thousht 20 De
regular or proper at the preliminary hear
ing. The application must be heard solely
upon the PLAINTIFF papers.
The bill sets ~p, substantially, that the
L. lr %
road to connect with its main line at
point on said street; that the permanent
use thereof is necessarily involved there
by; and that the council of the city has,
upon application refused such use. Inc
evidence of intention consists of petit
ton recently flied 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 build,
construct and maintain such lateral road.
the same TO be part of its road. and to
be used in connection with It's main line
for the transportation Of passengers.
There is no qualifying clause. No con-
tingency is mentioned no delay seems to
be contemplated. Apparently. at least,
the present idea of the company as thus
developed. is to build the branch and con-
meet it with the main line on Marshall
street without reference to any prior
Srant of authority by the council; and as
nothing further than the bill and exhib-
its can be heard or examined here it
must be held that occasion for the inter-
position of court of equity has been
shown.
An injunction may issue: bond $500, sub
Ject TO be increased or diminished upon
application.
Aliusion was made in the oral discussion
70 one OF the pleas fled by the land owner
in the condemnation proceedings MENTION
ed setting up the refusal of the council
to grant the use of Marshall street for the
purpose Indicated 1t is not intended here
70 foreshadow an opinion affecting the
plea 1t may be that other principles will
be round TO apply when the objections to
the plea are considered
Reference is made in the order to the
answeS OF the defendant company.
which Nudge Melvin held could not be