The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1903-08-20
OPINION
or JUDGE MASON M REFUSING no
DISSOLVE STREET RAILROAD
INJUNCTION
IN CONTROVERSY BETwEENsALEM
TERMINAL TRACrIoN co. AND
FAHRMoNr & cLARKsBURG
TRACTION COMPANY.
Latter Company is a railroad Company
and Holds a Prior Claim Over Sa-
lem Company, Which is Held to
be a Railway Company.

The controversy between the Fairmont
and GIarksburg Electric Railway com
pany on one side, and the Salem rerm5-
nal Traction company on the Other side,
has again been heard by Judge Mason
on a motion made some days ago by
the Salem company to dissolve an in
junction awarded by the Fairnont com
pany and to grant an injunction in
favo of the Salem company against the
Fnirmont company.
One of the interesting and novel ques-
tfons raised IS whether either company
is legally incorporated and has the right
to operate a street railway. The Fair
mont ompan was incorporated as a
railroad company under Sections 81 and
80 OF chapter 81 of the Code. The Salem
company was Incorporated under section
6 of that chapter as a private corpora
ton and was not therefore a railroad
company.
Judge Mason holds that both are legal
corporations and that either may hold
and operate a street railway, that 4
street railway is an entirely different
thing from n railroad as generally under
stood, thai the state makes no pro-
vision for the building and operation of
street railroads and that u corporation
organized to operate n street railway
has no other or greater rights than amy
other corporation of its class; that it
lacks many of the rights and privileges
attached to a railroad company. He
further holds that the Fairmont com
pany is simply a railroad company and
as such has the right to build and OPP
crate the road on the streets and roads
by the consent of h proper authority
but whether it may not as a railroad
be required to haul freight and
do the things required of all railroads
are cases not arising in this case. He
holds that the priority claim to rights
of way arising from surveys and the
filing. of maps and profilcs attached TO
railroad companies by the express a
guage of the statutes and hence such
rights are limited to railroad companies;
that the filing of the maps and prohles
by the Fair1nont company lit being q
company gave 1t a prior claim
over the Salem company, and in addi-
ton to that, both companies derived the
right to use the turnpike in question
from the same source tina. is from the
county court of Harrison county. The
Fairmont c~ompany's franchise was given
June 80. 1899, and the Salem comPany's
December 8, 1902. 50 that the Fairmont
has the Oldest franchise. About
the first day of July, 0 both com
panies began Il build along the turn
pike road from Adamston to Salem. The
roads eonficted.
Judge Mason holds that the proceed
ings lit being a motion in vacation to
dissolve one injunction and grant an
other) he cannot determine the title to
the part of the road in the actual pos
session of the others-that he can now
only prohibit each from unlawfullydn-
terfering with the property of the other
now in possession and he further decides
that the Salem company shall not at
tempt to take forcible possession OF that
part of the turnpike adopted by the
Fairmont company as its route; THAT
the Fairmont company being a RAILROAD
company and having adopted its route
and filed its maps and profilcs as re-
ouircd by law has a claim to the same
prior to the Salem comPany's right UNI
der it's franchise and not in actual foot
hold possession. The effect of this de-
cision will be that the Fairmont com-
pany may go on and build its road
without waiting for the decision as to
the title to any part of its location NOW
in the actual possession of the Salem
ompany and the Salem company may
90 ON and build its road by avoiding the