The Birmingham age-herald., 1902-06-17

miSsioners. The offense charged Is pun ishable by fine or Imprisonment, but in the case of a corporation the penalty will be a fine. The case will come up for a hearing In the Criminal Court a week from yesterday.
 The part of Avenue A, where the tracks were laid, Is just east of Thirty
 
 see and want a good thing the right to come along and take it without paying for 1t?
 The Court Record.
 'Nume1 ous references have been made during the argument to the number of suits this company has had, but so far as they have been cited the Belt Line has been enabled to maintain It's title to this 26-foot strip against others who have wanted 1t, and 1 apprehend that we will be successful in maintaining 1t agains- this latest freebooter. This de- fendaEt here is not the first to seek to take away from this company its prop erty. Has defendant a right to take any part of this 26-foot strip. even if 1t fig not occupied? I say not, unless they can first oiiOW .l at lHSIc iS 1 iiCISSSihy AOA 'iS taking. And if all of this 25-foot strip Is necessary to the uses of the Belt Line that none of 1t can then be taken by the Seaboard under the general statutes.
 "All of this 26 foot strip is needed by the Belt Line In the development of It's property, and 1t was after the Seaboard had come in the guise of friendship and obtained from us information of our plans that 1t applied for and in a sum- mary way undertook to take away our rights. We put these additional tracks on the street as a man puts his prop erty under lock and key-we put them there to keep the Seaboard from stealing our right of way"
 MT. Cabaniss contended that the Belt Line had a perfect right to retain its 26 foot right of way for any number of years without actually using 1t, and that 1t would not lose it's title by mere non-use. Further that the actual occupa- tion of part of the 26 foot right of way drew to 1t by construction of law the entire 26 feet. That this possession held good against any other railroad com pany which might seek to occupy it.
 The Seaboard, he said, had authority to enter the city and use such streets as were needed for 1t to pass through and leave the city, but instead of this they were seeking to build a belt road and paralleling all of the tracks of the Belt Line except on Avenue E.
 He then discussed the right of access to abutting property claimed by the Belt Line, and said that this right had been conveyed also under the deed from the Elyton Land Company.
 Could Choose Another Route.
 It was argued that the Seaboard could enter the city on the route suggested by MT. Clark, and that 1t was not necessary to take any part of the right of way of the Belt Lins that no damage or injury would ensue to the Seaboard by continu- ing the injunction. The Seaboard had yet to build 200 miles of railroad from Atlanta before the tracks in the city would be needed. No hardship will re- suit to them by continuing the inJunc- ton, yet great damage will ensue to the Belt Line if 1t Is dissolved; that there fore the injunction ought to be contin- ned, and no wave of popular enthusiasm which sweeps over the community in favor of the Seab bard should or will in-
 
 MT. Cabanies concluded his remarks at 1915 c'clcck
 MT. London Argues.
 MT. Alex T. London followed him. He began by saying that the Belt Line had not been surprised at any arguments pre- sented by the Seabcards counsel; that MT. Percy had evolved a new doctrine that of selection; that because Mr. Will Hams ard the city engineer had looked at and selected a route, that that was enough 10 enable them to take some one else's property. They had gone to the county authorities and expressed the de- sire to take the lines already selected by some other. This great public benefaotor proposes at one fell swoop to take the property of this small corporation.
 The Seaboard proposes to exclude the public from Avenue A by building four tracks in a street 70 feet wide. They say they will take 1t because they want It.. The poor little Highland Avenue and Belt road never had such an audacious attempt 70 rob 1t of its property In all It's history. The Seaboard proceeds to build tracks In the night time upon a right of way which they know is claimed by someone else-a fine way to place them in q good moral attitude before a court of equity!
 "There is one thing I thought would be observed," said MT. London, fin this case the principle, de mortuis nil mist bonum--the Eiyton Land Company, which is dead, has been abused, because 1t conveyed certain rights in the public str eets; yet 1t never undertook to convey any right which 1t did not possess.
 Why, ! could not help but be i'm pressed at the way in which counsel sheer at the Belt Line-how he turned and looked at me in his argument and asked if any one had the audacity to claim that the Belt Line had any title In the streets. This combination of the Napoleon of Railroads and the Butcher of Law Is. l admit, enough to awe anyone.
 If assertions were law, l admit the Belt Line would have no case, but for tunately assertions and reterations do not make law and I still think the Belt Line has some rights"
 EIyton Company Had Right.
 MT London contended that even if the streets had been dedicated to the public still the Elyton Land Company as the owner of the soil had a right to grant an easement over the street not incon- sistent with the purposes of the original grant.
 At this point court adjourned until 8 o'clOck.