The sun. (Wilmington, Del.) 1897-19??, 1901-06-25
XY-HYDR0GEN
ARGUMENT
Superior Court Hears Motion to
Quash Writ
NO DECISION rs GIVEN
Motion Opposed on Groun1 That
Writ of Mandamus Was Entirely
Competent, Demanding Only
One Right, to Open Streets.

| Argument was heard in the Superior
Court yesterday on a motion to quasi
the alternative writ of mandamus ISSUED
III the case Of the State of Delaware
upon the relation of the Oxy-Hydroger
Company and John Edward Addicks VS.
| William Simmons, Ayers S. Webster anc
James ID. Carter, constituting the Board
of Directors of the Street and Sewer De
partment.
G. Berkeley Taylor and Herbert III
Ward for the REALTORS, opposed the mo
ton to quash, contending that the writ
was entirely competent, demanding only
one right, namely, to open the streets OF
Wilmington.
The amended petition of the Oxy-Hy-
drogen Company represents that it is d
corporation existing under the laws of
the State of Delaware. Application was
made prior to May 13, 1890, to the Board
of Directors for a permit to open the
bed of Shipley street for the purpose of
laying gas pipes therein. The applica-
tion was refused on May 13, 1890 by d
resolution of the board. Thereafter and
before August s, 1890 further verbal ap-
plication was made to the Board of
Street and Sewer Directors for d permit
to lay gas pipes on Monroe street, which
application was refused on August 5,
1890 by letter to John Edward Addicks
from Joseph l.. Carpenter, Jr., president
of the Board of Directors of the Street
and Sewer Department.
Subsequently on December 81, 1892, the
directors of the Oxy-Hydrogen Company
passed a resolution directing the presi-
dent of said company to appear before
the Directors of the Street and Sewer
Department with a view to securing
their Withdrawal of their application to
the courts for an injunction to prevenf
said company from opening the streets.
in accordance with said reso-
luton, was made to the Board of Di-
rectors for permission to lay gas pines
in the streets of the city. The applica-
tion was refused in a letter of Charles
Nj. Curtis, city solicitor, on December
81, 1892.
On May 2, 1899 a further petition to
the Board of Directors of the Street and
Sewer Department. praying eonsents6toq
open and excayate the bed OF the streets
and highways of the city to lay gas
pipes. was presented by the attorney of
the OXy-Hyrdogen Company, duly auth
)rized for such purpose. The last named
petition has never been answered. On
luly - 1888 a further application was
made for a permit to open the bed OF
Liberty street, for the purpose of lay
ng gas pipe mains therein i'm accordance
With the charter of the company. This
ippllcation also remained Unanswered
The form upon which the last applica-
ION was made was in the wear 1891
ibandoned and no other set form has
'Ince been adopted in lien thereof by the
street and Sewer Department.
z The allegation is made that all of the
lppinatiOns have been either pypIessly
'efdsed or disregarded and that the com
'ahy is now and has always been willing
9 conform to the proper regulations of
he Street and Sewer Department con
'ernlng the entering upon and using the |
treetS. |
BY reason of the several refusals Of the |
Street and Sewer Department TO permit |
he company to enter upon the streets |
i the city to lay gas pipes and by reason
II the failure of the department to an
wer these applications, the company has
een prevented from exercising the
owers to il grontcd by and under its |
harter and has been deprived of the
enehcial use of the capital invested in
he creation Of its gas works, MI of
ihich has been to the great detriment of
he company.
On or about March 81, 1891 upon the
tempt of the company to exercise IFS
rights by the opening of T,ib-
rty street to lay gas pipes therein. the
lDnppIlnr nf |
'ouncil and Board of Directors of the
treet and Sewer Department granted
relimnarv injunction against John Ed
ard Addicks and other persons. agents
the company. The Injunction was
bout October 80. 1900. upon the amend
lent of the said bill of complaint. ex-
'nded TO the company. Later an iniunc,
on was issued restraining the com
any from entering upon any of the
reefs of the city until it should apply
tins court for writ of premptory
andamus upon the Board Of Directors
the Street and Sewer Department.
them to grant said company
permit to enter upon and occupy the Ii
reefs.
In accordance with the opinion and d-
'ction of the chancellor a premptory
Arthur w. Spruance and Williams 8. Il
lilies presented reasons to support their
otion to Guash the writ. They held
at no legal and proper demand had
'er been made for the performance of .
q thing sought to he compelled by
e mandamus: that there is misioinder
parties as REALTORS: that the manda-
ry part of the writ is not single, in J
nsstant in itself and uncertain that n {
rt Of the relief sought has been lost Ii
: the lacheS of the REALTORS.
Argument was concluded about $40 Ii
clock yesterday afternoon. The Super
7 Court then adjourned until Septem- &
r. In
In the divorce case of Eastburn VS.. Ia
'sthurn. on the application of Horace t
Knowles, James w. Lattamus was "
'pointed commissioner to take testi- i
nny.
Judgement nisi for want of appear
ICE was granted the. plaintiff in the
So of the National Cash Register Co.
Maurice w. Spencer.
An application for continuance in the :
rtiorari case of the st. Georges Marsh /
'mpany VS.. Joshua Jefferson. was
anted on the ground of a vacancy
hich exists at this time in the Office OF
lstice of the Peace at St Georges. +