Omaha daily bee., 1902-07-29
RAILROAD CARRIES POINT
Judge Wheeler Refuses to EujOin 1t from
Driving Filing in Road.
ONLY ORDINARY FRAME PROVIDED FOR
County May Appeal or Possibly May
Bring the Matter Before the next
Grand Jury on Criminal
Charge.

In the suit brought by Pottawattamie
county to restrain the Mason City & Fort
Dodge Railroad company from obstructing
the public highways In it's construction
Of the extension of the Great Western
railroad to Council Bluffs. Judge Wheeler
Of the district court yesterday decided
against the county and declined to issue
the temporary injunction asked for.
Judge Wheeler refused the injunction
applied for on the grounds that the OBJ
structions on the highways are not Of
such a nature as to require a restraining
order. He also held that 1t was only or
binary public travel and use OF the high
ways that the railroad had to provide for
and not the exceptional use. The county
introduced evidence to show that the piling
driven by the railroad in various high
ways throughout the county did not leave
sufficient passageway for a threshing ma
chine to pass through and that in several
places the county's elevator grader would
be unable to pass, owing to the obstruc-
ton caused by the piling.
The suit was brought particularly to
restrain the railroad from obstructing the
highway near Green's packing house in
Garner, where the piling has only left
a passageway of less than seventeen feet
in width, but q general restraining order
applicable to all roads throughout the
county was asked for.
Ever since the Mason City & Fort Dodge
Railroad company began its construction
work in this county. its methods Of plac-
ing piling In the public highways for its
overhead crossings has been a bone OF
contention between 1t and the farmers
using the highways. The railroad has re-
fused to recede from its position, claiming
the right to temporarily obstruct the
roads. On behalf Of the county 1t IL
commended that the railroad drives its pill
ing at right angles to its line of railway
without regard to the highway, and places
them at an angle in the road without an
opening between any two rows Of pilins
| Of more than seventeen feet, which Is
considered insufficient psssageway. At the
! Napier crossing, on the highway skirtins
Mosquito creek, It is charged that the
| railroad has placed its piling practically
square across the roadway, which almost
makes the ~thoroughfsre impossible for
even ordinary travel.
stand for Seven Years.
The Temporary crossings constructed
by the railroad, It is understood, VIII be
left in position for from nve TO seven
wears. when they will be replaced with
| steel SlTO6TS cu hIOuc
| President Colt Of the Mason City q Fort
Dodge road offered to agree during the
trial OF the case that II the county would
agree to permit the temporary cross
inRs to remain, the railroad would at the
end of seven years replace them with per-
manent steel bridges. This County At
torney Killpack. on behalf OF the county
refused to agree to.
It is possible that the county may ap-
peal from Judge Wheeler's ruling, but
this will be a matter for the Board OF
| County Supervisors to determine. County
| Attorney Killpack stated yesterday that he
would likely bring the matter before the
, grand jury at its session In september
and try to secure an Indictment against
the railroad on a charge Of obstructine
public highways, which is a criminal
offense, and In the event Of the grand jury
returning an indictment 1t would then
bring the matter before a jury for settle
ment.