The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-30

ANbIlHtdSlpIn tdllIOdu tDHlDdHy diu
others, Judge John =. Kelly yesterday
| handed down an opinion declaring
| that the company has the right Of
| eminent domain and is not to be en-
| Joined from following its adopted
| route through the lands of the plain
| tiff
| The opinion decides that after rail-
Dad company has sent engineers and
surveyors over lands to make prelim-
| mary surveys for a route and the sur
Ne%ors mark out one or more routes
and report their work to the board OF
directors and the board formally
adopts route, such adoption gives
title to the railroad company abso-
| lutte, as against other corporations or
| third parties. and conditional, as
| against the owner of the land, which
| conditional title, so acquired against
| the land owner, may be afterwards
| ripened into an absolute title by maxi
| Ing compensation to the land owner
or entering security for the damage,
according to law.
1t further decides that after a route
has been adopted by the board of
directors, the engineers of the COM
| pany can not change or modify such
| route; and that if the owner of the
land conveys the property subsequent
| to the time of the adoption of the
route the title acquired by the railroad
| company by their act of adoption be-
| ing title to the land covered by such
| adopted route only, the act of adop-
| tion gives 1t no right as against the
| land owners vendee to build upon any
| otncr portion of the lands.
| The cause of action and contentious
| oe both parties are set out suCcinctly
| in the opinion, which is given below in
fun. j. +. Burr, Joseph O'Brien and
| II, A. Fuller, of Wilkes-Barre ap-
| peared for the defendant. The plain
tiff was represented by +. G. New
| comb and Major Everett Warren.
The defendants are extremely graft
| fled at this second attestation by a
| court Of the right of eminent domain II
| claims to properly exercise, but which
has been twice attacked, the former
| attack being in the case in which
Avoca borough was the plaintiff.
| JUDGE KELLY'S OPINION.
During the year 1900, and until Feb
ruary 20, 1901, Annette Reynoldcs was
the owner of certain lands in the bor-
ough Of Moosic. on that date she made
a deed of the same to the Rocky Glen
Water company, plaintiff. which deed
was duly recorded on April % in the
proper office. The plaintiff company
obtained it's charter on February II,
1901, for the purpose of supplying and
| furnishing water to the public in the
borough of Moosic," and on February
| 10 the stockholders met and formed an
organiza tion, and resolved to purchase
from Miss Reynolds her lands in
Moosic. ON February 20, at a meeting
of its directors, the deed from Miss
| Reynolds was accepted. and steps were
taken to employ a surveyor to locate
dams, etc. At another meeting of the
directors held April !. certain surveys
and maps made by George T.. Steven
son. civil engineer, We're accepted. Mr..
Stevenson tilst went upon the ground
January ii, 1901, at the instance of Miss
Reynolds and Arthur rockingham,
and selected site for a dam, and on
April he ran the flow line of the pro-
| posed reservoir.
The Scranton and Northeastern Rail-
road company obtained its charter
| from the commonwealth on May IS,
1900, under the provisions of the Cen
eral Railroad Act of April 4, 1865, and
its supplements. for the purpose OF
building, maintaining and operating "A
railroad for public use in the convey
ance of persons and property" from
Scranton to Pittstonl Pennsylvania, a
distance of about ten miles Survey
Ors We're engaged by this company to
locate route for its railroad. They
ran several trial lines and finally
adopted a line Of route between Pitts
| ton and Scranton, marked ii upon a
map, and drove stakes in the ground
To indicate Is location. The line so
located by the surveyors was formally
adopted at a meeting Of the directors
of the company on November 90. 1900.
1t begins at the interseCt of Elm
| StreeC and Irving avenue, in the city
of Scranton, terminates at the inter-
section of Broad and Foundry streets s
in the city of Pittston. and runs
through the lands of the plaintiff and
through It's proposed dan and reSer-
voir. A slight change or deviation was
made in this line SubSeQuent to its
| adoption by the board Of directors by
the surveyors and engineers of the
company, but such change was never
ratified by the directors of the rail-
| road. nor was any action taken by the
corporation win reference to it. The
extent OF the change varied from
nothing to two hundred feet, and the
line as changed by the engineers would
run through the proposed dam and
reservoir OF the plaintiff The con-
! StruCtion of the railroad either uDon
the line as adopted by the directors
or as modified subsequently by the en-
gineerS would prevent the plaintiff
from constructing it's dam and reser-
VOr at the place selected for that pllr-
pose, there being no substantial differ
pnCe in the effect upon the plaintiff S
: dam and reservoir between the original
ana the revised or modified line. This
| change was made on the ground on
and before the 10th day of February
1901, and marked upon the railroad
, company's map on the following day.
! FILING OF THE RITT.
The work of construction Of the rail.
road was being done during the sprin
= OF the present year, by the contractors
: on the ground, and when the lands ot
the plaintiff We're entered upon bill
$ was filed, ON May, Il, against Tine
a Scranton and Northeastern Railroad
company. John Lee, John r. Doan anG
Joseph Page. setting forth the inCor.
. poration of the plaintiff company fol
the purpose Of supplying water to the
, public: that The Scranton and North.
; | eastern Railroad company is inCorpor.
n ated for the purpose of constructing q
railroad and that Lee, Dolan and Page
| are contractors under il for the con,
. struction of the road; that the plain.
| tiff company acquired title to these
lands in Moosic for the purpose ot
building reservoir, and dedicated the
same to public use, selected site ant
| began construction, etc; that on Tho
| lith of May, 1901, defendants unIaw,
fully entered upon such lands, Nithou
any condemnation proceedings, anC
that the lands are not subject to con,
- | demnation on account of their ammo
> priation to public use by the plaintiff
= that The Scranton and Northeastern
Railroad company has not the right o
e eminent domain, because, inter ALA, 1
2. | Is not going on In good faith to builC