The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-02-17
THE RAILROAD WINS
Judge PurneII Says Durham
Loses Peabody Street.
Goes Into Details and Tells Of the Various
Phases Of the Litigation as il is Seen
by Him.


The decision of Judge Purnell in the
Peabody suit litigation between the
ham was handed down yesterday In it
Judge Purnell dissolves the Injunction
against the Southern and orders that
the City of Durham be taxed with the
costs. The decision sustains the claim
of the Southern Railway to Peabody
street.
This does not end the suit, as an ap,
peal will be taken. This will 90 first to
the Circuit Court at Richmond and the
fnality of the suit will only be reached
wnen it has been heard in the United
States Supreme Court
The full text of Judge Purnell's opinion
Is as follows:
United States of America, Eastern Dis
trict of North Carolina, in the Circuit
Court. i'll Equity.
The City of Durham VS.. The Southern
Railway Company.
Messors. j. S. Manning, r. w. Winston,
j. Crawford Biggs and w. II. Day, for
complainant; Messrs. Fab. H. Busbee.
Charles A. Price and w. a. Henderson
Tor defendant.
Complainant commenced its action in
the Superior court, of Durham county,
on July 18th, 1899, and filed a COM
plant which after formal allegations
of corporate existence. etc, alleges that
il. the city of Durham, is the owner and
entitled to the possession of certain
strip of land on the north side of the
North Carolina Railroad, n part of what
is designated and known as Peabody
street in the city of Durham, n. c.
The form of the pleading is similar to
an action Of ejectment, but there is no
objection to the form of the pleadngs
nor was there any serious discussion in
the argument as to such form, whether
it is an action in ejectment. or, plain
tiff claiming possession in an action to
remove cloud upon title or restrain a
threatened trespass, etc, but all were
incidentally discussed and technical OBJ
jections being waived and a disposition
by ali to present the real question at
issue. Plaintiff claims to be rightfully
in possession OF the locus in quo, a
strip of land on the north side of the
right-of-way of the North Carolina
Railroad Company. about thirty-two feet
wide and extending from RoXboro street
to Cigarette street, now used by an
way. This will be better understood
from the plat --ereto attached and eX-
hibited.
The Southern Railway Company an
swered and sets up several defenses. By
stipulation of counsel records were ad
mitted and used as evidence in lieu of
dispositions taken in the usual form,
which cause. being set down for hear
ing. was argued. From the pleadings
and records used eliminating what is
not regarded as essential the follow
ing chronological statement of facts only
is necessary to understand the conten
tons, though many others were re-
fcTred to in the argument.
ID In 1852 the North Carolina Rail-
road was chartered by Act of the Leg
islature and soon thereafter built. EX-
aCtIy when the track on the land, now
Pea body street, in the city of Durham
was laid or the right of-way thereon &C
quired does not appear, but probably
about 1854 There was no city or town
of Durham at that time, and the land
low the right ofway, was woods, old
field or a road. There were no convey
ances, condemnation proceedings or other
evidence of how this right of-way was
acquired, but il is stated to have been
under section % of the charter, Act
1882 which reads as follows:
That in the absence of any contract
or contracts with said company, in re-
lation to lands through which the said
lCad CT its branches may pass. signed
by the owner thereof or by his agent
or anv claimant or person in possession
thereof, it shall be presumed that the
land upon which the said road or any OF
its branches may be constructed. togeth-
err with space of one hundred feet on
each side of the center of said road
has been granted to the said company
by the owner or owners thereof; and
the said company shall have good right
and title thereto, and shall have, hold
and enjoy the same as long as the same
may be used for the purposes of said
road. and no longer, unless the person
or persons owning the said land at the
time that part of the said road which
NAV be on the said land was finished, or
those claiming under him. her or them,
shall apply for an assessment of the
value Of said lands, as hereinbefore di-
-cctcd. within two years next after that
rart of the said road, which may be on
said land was finished; and in case the
said owner or owners, or those claim
ing under him, her or them, snail not
apply within two years next after the