The Savannah morning news., 1901-02-12
RIGHT TO CONDEMN
Is IN SAVANNAH, THUNDERBOLT
AND ISLE OF HoPE RAILWAY.
AMBoS' PETITION DENIED.
JUDGE FALLIGANT ovERRULEs ALL
OF HIS CONVENTIONS.

company Wants to Condemn n strip
of MIR. AmbOs' Property at Thun-
derbOIt, in Front of His Place of
BUSINESS, for the Purpose of EN-
tending Its Lines to Reach Its New
improvements at Mathis Point.
This Condemnation Mr.. AmbOs
Sourht to EnJoin-AIsO Claimed
company Was Trespasser Upon
other Portions of Its Right of
Way.
In lengthy decision. covering fully
,he important issues of law and fact in
VOWED in the case. Judge Falligant has
refused the petition of Henry Ambos, for
temporary injunction restraining the
condemnation by the Savannah, Thunder
bolt and Isle of Hope Railway of certain
of his property at Thunderbolt.
The property is a tract, thirty by seven
~ feet in dimensions lying in front of
the home and place of business of the
plaintiff over this piece of property the
defendant desires to extend it's tracks. so
as to reach. with its lines the improve
ments now in process of construction by
l NAA'11
the plaintiff sought to have the company
restrained from using, for the same pur-
rose, a portion of it's track already con-
sructed and in operation for twenty
years, claiming that this portion of the
track had been built on what was mis-
private property, and that to this por
ton of its right of way, the defendant
was and always had been trespasser.
The decision of Judge Falligant is a
sweeping one. He overrules every con-
tention of the plaintiff, decides every
point against him, and denies the injunc-
ton upon every ground set out in the
petition.
After stating the contentious of the
plaintiff on the branch of the case invov-
ing the use by the company of the por-
ton of its track which Mr.. Ambos says
makes it already a trespasser upon his
private property. Judge Felligant says:
Defendant contends that it's railway
in controversy, as now Constructed along
the bluff, has been held and owned by
the defendant and its predecessors. in It's
present position and construction, for
more than twenty years. with the assent
of the corporate authorities and the
sent and acquiescence of the lot owners
along the bluff, and particularly with
the assent and active cooperation of said
Henry Ambos, said railway having been
laid down and constructed along the bluff,
in its present location, while the said
Ambos was a director of the original COM
pany constructing said road. This con-
tention of the defendant l find fully sus-
tanned by the evidence and therefore de-
cline any temporary injunction as 10 this
branch of the case"
Judge Faligant finds from the evidence
that Main Front street at Thunder
bolt is a public street dedicated to the
use of the public. He finds that the cor
porate authorities of the town exercised
a legal. right when they granted 90 the
railway company the right to construct
its lines along the bluff He finds that
in exercising this right by the town au-
thorities, Mr.. Ambos. as one of the com
missioners, was active in his advocacy
of the improvement and that he has him
self recognized that the street was public
and the property of the town. Deducing,
therefore, the conclusion that the town
has not exceeded its rights in this mat
ter, Judge Falligant refuses the injunc-
ton asked on this ground.
The last and most important of the con-
tentions of the plaintiff disposed of in
the decision OF Judge Fallgant, is that
the railway company has no right to con-
denim private property for the purpose OF
changing its route or extending its lines
through the limits of an incorporated city
or town. Judge Falligant finds that the
railway has such power from the provis-
ions of its charter from the state and the
general laws regulating and affecting cor
porations of its character and that when
ever it has complied with the legal for
malities exacted and has obtained the as
sent of the proper corporate authorities,
it may institute and press 20 their con-
ciuSion condemnation proceedings.
1T is idle 10 argue says Judge FALL
CANT that under such a power city
and suburban railway might condemn a
right of way two hundred feet wide
through a city, over the houses of citizens.
The case must be decided according to
the facts"
Judge FaHigant cannot agree with the
contention of the plaintiff that the eX-
tension of the defendants right of way
across his property will result in IRENE
diable damage TO him. On the contrary,
Judge Falligant is of opinion that the de-
PENDANT will have to build UP the bluff in
front of Mr.. Ambos' property in order
to protect it's own interests, and that
tie protection so afforded cannot fail to
enure to the benefit of the plaintiff. The
character of evidence upon the subject of
damage introduced by petitioner" says
Judge Fallgant, presents rather wild
opinions upon what may hereafter be IN
has been said | decline the temporary
injunction on this one of petitioners
contentious
I'm my judgment" Judge Falligant con.
Guided, the power to condemn the pro-
posed right of way, seventy by thirty
feet. over the Num- lot, for the purpose
81 the extension and change of route. IN
and through the town of Warsaw, by aud
with the consent of said town. expressed
By its proper authorities. is in the Sa-
Nannah, Thunderbolt and Isle OF Hope
Railway, and for all the reasons above en-
Pressed the temporary restraining order
hitherto granted is dissolved, and the
temporary injunction refused on ell the
grounds. Let proceedings to condemn al
ready instituted go on, and be completed
as by law in that regard provided"
Judge Falligant alludes in passing to the
benefits that Will result to the public from
me extensive improvements at Mathis
Point, now being made by the railway
company.
1t is probable that the end of the case
is not yet, and that the application for an
loJunctson and relief will be renewed
before the Supreme Court
HUAX Unnx-Wr