The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1901-08-30
CLAIM
OF EMINENT DOMAIN
Judge Kelly Decides in Favor of the De-
PENDANTS in the Celebrated Rocky
Glen Injunction Case.


ants, and speCifcallyq charging the
several defendants with entering into
combination To unlawfuily construct
and operate a trolley or street railway
system from a point at or near the
court house In Scranton TO the public
square i'm Wilkes Barre, and on the
same day preliminary injunction was
granted to restrain the defendants from
entering upon the plaintiffs lands for
the purpose of constructing railroad.
BOND TENDERED.
on May l3, 1901, a bond was rendered
to Annette Reynolds by The Scranton
and Northeastern Railroad company, In
the sum of one thousand dollars, con-
ditioned for the payment of damages
for the taking of lands for the right
of way over the lands above referred
to. which she refused TO accept, and on
May 20 a petition was presented to the
court for the approval Of the bond and
q rule was granted TO show cause why
the same should not be approved, re-
| turnablc at the Argument court. An
| answer was filed by her. denying that
| she was the owner of the land and set
| ting forth the sale of the same to the
water company; setting forth the In
corporation of the water company to
! supply water to the public; the appro-
| priation by the water company of the
| lands sought to be condemned to the
purposes of a. reservoir, etc; that no
| appropriation had been made by the
| railroad company at the time of her
| conveyance to the water company, and
| the appropriation by the water COM
pany OF the lands to public use; and
| denying the right of the railroad COM
| pany to condemn. The disposition Of
| this rule was postponed until after the
| hearing in this proceedings, and IL is
now pending and undisposed OF. No
| negotiations have been entered into by
| the railroad company with the water
| company or Annette Reynolds, with
view to agree upon the damages, and
| no steps have been taken in that direc-
| tion by the railroad company except
| the tender of the bond to Miss Rey-
| nolds and the petition to the court
| above referred to.
| The first question to be considered is:
| Has The Scranton and Northeastern
Railroad company the right of eminent
| domain? II is organized and chartered
under the General Railroad Act of 1868,
! and prima facie, under that act and
the Act Of lSi9 il is invested with the
power of eminent domain. Under the
| provisions of the Act of June 10, 1871
| P. l.. 1860, however, We are required
at the instance Of the plaintiff to in
quire and ascertain whether ii does in
| fact have the right to exercise the
| power of eminent domain, notwith-
standing II is chartered under the pro-
| visions Of the Act of 1868. The twelfth
| section of that act expressly declares
| that the provisions of the act should
| mot be construed SO as to authorize
| the formation Of street passenger rail-
| way companies to construct passenger
| railways in any city or borough of this
| commonwealth" and IL was held in
| Potts ct al. vs.. FL r. Il. Co, 16l Pa.
396 that any company Incorporated
| al.
be a steam railroad company, within
| the meaning of the general railroad
| laws, and that such company cannot
| acquire by construction or implication
the rights and powers of a street pas
| senger railroad company If the evi-
| derCe establishes the fact that The
! Scranton and Northeastern Railroad
| company intends to construct and Cp-
crate street passenger railroad, and
| not q steam railroad. then under the
| decisions il is engaged in an unlawful
enterprise, and is not invested with the
power of eminent domain. Street rail-
way companies have not the power OF
eminent domain, and no corpora tion
organized for the purpose Of engaging
In the street railway business can aC-
| quire such power under mere pre-
tense of being a steam railroad COM
pany: Potts vs.. FL. Il. r. Co., supra ::
Com. VS.. III. Ey. CO.. l6l Pa, 400; Il.
: II I <
Nosey. We nv 60 100 pa i5o Rut ~
tLa evidence docs not as.ahIish such
unlawful intontion ana # annears that
n 10 thn intenti0r AMI n,,rnoeo of tho >
company to build a railroad, within
| the meaning Of the general railroad
acts, and not a street railway. then ii
| is acting within its rirhts ,,nder tho
act whirh authnrizas itS imoorno,,a+ior
and Copfarred unon il The no,yer 81
en,incnt domain. Cav. VS. - u 70
los pa A.p
NOT ON ANY STREET
| Tbo rronoeod ro,,t. ~ ,,ba co,ortor
and Northn.starn Poiiroad con,nspv
from scranton to pitfyior dos rnt an >,
IonnitudfnolIv aIona, a eireIn stroet IN
rit6nr or tha ,tun cities ~. ,ho ,u'n
bnrouohs thronrh vhicb t. raeses Tt
docs rnt rannira Tho aiG or an,. r,unioil
nal franchise tn authori2n lis cnnstruc-
lion Throupb tho hornuobe, of Moe io
and Avora is ro,,ta ie oH iocotoI T,a >
n COS, evne,t M nnt,nraoo n,, n straat
,aIwav II dos nor nm throuob ~ a
nnnuIGus nortinrs of eitter h,,1 u &c
| located IunoniolIv ,b,orob ~ -,
nuob 90 NInnein ~ a nn,Ii,,o,oII, A.
tonno ou.a, ,rbn cba,onIor 90 ~ ,,nr "'r
etr,ctio,, 10 tbat Of =, st,,o,,, ,,ai1roal
ond rot op q etreot roii,ra,, ~ tios
H "n I'll ,, ,,,o, I ,He ~,
an(r ,iaducts IA he buiif aro s,,ab =
~ ,,r,,iTod CO.., tbo brr,,il. IIi ." a.,
.t,,,,,, naiI,,Cod tcoaio MI 80 ~, 49, -, W
,''h ,",ta is o,,a,, ,i,,t I, - f,,,
H., ,oadhod is odnd h,. ,",,or ,,nr,, 81 ~.
amt IIis on,ho,Ln,ou+s ~ T.. =.
uo, -, ,i'I tho tr nonst,nti stC as -
, roaGs If is not in nnV ennsa n stren,
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