The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-01-01

town of Durham to the town as a street.
Without giving the details of the litiga-
tion, when the case came to final trial in
the Superior Court of Chatham, Judge
Robert w. Winston, the presiding judge,
submitted to the jury the question as to
whether the Richmond and Danville Rail-
road had dedicated the right of way for
the term of it's leasehold estate, to the
town of Durham to be used as a street.
The judge decided that there was NO
EVIDENCE that the North Carolina
Railroad had ever dedicated it's interest
in tho right of way to the town or to
any corporation. This was undoubtedly
in accord with the evidence.
The jury, having decided in favor of
Durham, SO far as the dedication by the
Richmond and Danville Railroad was con-
cerned, judgments were drawn in ac-
cordance with the opinion of the Judge,
and the verdict of the jury, that the
right of way belonged to the town as a
street until the end of the lease, Septem-
Der 3. 1901. and that the N. C. K. R. Co.,
had never parted with any of its rights
to the right of way, and that it would
belong solely TO that company at the ex
piration of the lease Both sides APP
rpealed to the Supreme Court, Judge
BurWell being a stakeholder Of the n
c. r. r., did not sit. the court was
equally divided, and both judgments were
affirmed. Since that time the Southern
Railway Company, as the purchaser of the
Richmond and Danville lease, has carried
out in good faith the Judgment Of the
court. Some years afterwards, in 1895
believe, a new lease was executed by the
n. c. r. r. Co, to the Southern Railway,
whereby the rights of the N. C. r. r. Co.
passed to that corporation. A short while
before September 8, 1901, the date of the
expiration of the R. and d. lease, the
S. A. L., controlling the Durham and
Northern, applied to the Board of Alder
men of Durham, and offered to pay all
costs and counsel fees if the town would
bring suit against the Southern Rail-
way for the purpose of invalidating the
judgment rendered in favor of the N. c.
r. r. Co., declaring it's right to the
possession of its right Of way after Sep
temher 8, 1901.
No complaint is made that the same
good lawyer, ex-Judge Robert w. Win
ston, who decided that there was not
even evidence enough to go to the jury
of any dedication by the North Carolina
INdlAIOdu NOuIpduy, Is HOW the ledVIUS
counsel of the Seaboard Air Line in as
sorting that the town still has a right
to the street, or right of way, notwith-
standing this judgment. He was an i'm
partial judge then; he is strictly within
his legitimate sphere as counsel, now.
The action was brought in the name of
the town against the N c. r. r. Co. and
the Southern Railway Company, seeking
! +o al nf ID, 70
the right Of way under the former iudg-
ment as a cloud upon the title of the
town.
| This case was removed to the United
States Circuit Court, where it is now
pending. Just before the lease expired,
an injunction was obtained, forbidding
the Southern Railway Company from in
terfering with the property in litigation,
herein, called by the plaintiff Peabody
street, and by the defendants, right
of way for their railroad" This in
junction is still in force. Peabody street
runs Immediately along the side of the
tresent depot in Durham. / is imposs-
!~ble to make the depot one foot wider
without a violation of the injunction.
! In the meantime the Seaboard Air Line.
the real plaintiff. continues to enjoy.
track along the right of way for which
the oxford and ClarksvilIe Railroad
Company paid $4,000. It's passengers use
! the Southern Railway station daily.
l am at a loss to conceive how the
Southern Railway Company can construct
| suitable depot facilities until its title
! to its right of way, once adjudged in
the State courts, shall be sustained CT
B = MI Ia
its depot without violating the injunction.
/ l have never stated that the South
orn Railway Company would build a dc
! pot when the town gives up its street"
The company does not ask any convey
ance or concession from the town. Tho
highest courts of North Carolina have
adjudged that the entire right of way,
which includes Peabody street, belonged
! to tho North Carolina Railroad Company
after September 9, 1901. Inc Southern
Railway Company asks nothing except
that it may be informed whether this
adjudication, once solemnly made, is
| valid.
| 1t is enioined from entering upon any
Part of this right of way, which the
town claims as Peabody street The occu-
patton of at least a large part of this
right of way is absolutely essential to
| the construction of a depot. / only said
| that the company could not safely build
Union Depot or enlarge the present one
l ntil it's right to the land which the depot
| will necessarily cover, should be finally
| determined The town of Durham and
! the Seaboard Air Line Railway Company
| occupy a part of this right of way, and
seek to disturb the former adjudication
Ia
| ing any conveyance from the town is in
accurate and misleading. Can any rea
| sonable man say that the position of the
! Southern Railway is, not justified?
F. H. BUSBEE.
Blue Island, Ill, Jan. IA, 1901.