The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-02-10
THE PEABODY SUIT
Durham's Famous Case Be-
fore Judge PurneII.
Judge R. W. Winston Argues for Durham, and
Maj Charles Price for the South
ern Railway,
ern Railway.

The suit between the city of Durham
and the Southern Railway came up for
hearing before Judge Purnell yesterday,
and will be continued today. The city
of Durham is represented by Judge r.
w Winston, Mr.. ]. c. Biggs and Mr.. j.
S. Manning, of Durham, and Capt. w. H.
Day, of Raleigh. The Southern Railway
is represented by Mr.. F. H. Busbee,
Capt. Charles Price and Col. Henderson,
of Washington. The purpose of the suit
is to determine the right of the city to
use what is called in the city of Dur
ham, as the Peabody street. 1t is admit
ted that the city is in possession of the
street and has been occupying it for
many years, and during that time has
paved it, lighted it and otherwise i'm
proved it, expending many thousand dol
lars This street lies on the right-of-Way
of the North Carolina Railroad, and IN
1899 a suit was brought by the city oil
Durham against the Richmond and Dan
Vile Railroad Company and the Norlh
Carolina Railroad Company in whlch sun
il was decided by the Superior court ana
confirmed by the Supreme Court OF the
State. that the Richmond and DanVllie
Railroad had dedicated the strip lot
street. but that the North Carolina RAIL
read Company had not dedicated 1t.
Pending that suit the North Carolina
Railroad Company attempted TO convey
eighty feet which embraces the street,
TO the Oxford and Clarksville Railroad
Company, for the consideration OF $5,0OO.
The city Of Durham now claims that the
conveyance of the North Carolina Rail-
road Company to the Oxford and Clarks-
Vile was and is invalid, because the
North Carolina Railroad Company ac-
qured the right of-way for its own pur-
pose under its charter, and could hold
it so long as it was used by it, and no
longer, and that the deed to the Oxford
and GAINESVILLE Railroad Company was
an express declaration by the North
Carolina Railroad that the strip of land
conveyed in that deed was no longer
needed for it's own purposes, and was,
in law, an abandonment OF its right-of-
way; and therefore the North Carolina
Railroad Company did not own it in 1895,
when it made the 99-year lease to the
Southern and could not convey 1T under
that lease That if the North Caroline
Railroad Company owned it in 1895, and
in tie suit brought in the Circuit Court
Of the United States by the Southern
Railroad Company to have the validity
of that lease established, the Southern
Railroad Company construed the lease
of 1895 to be a modifica ton and extern
uation of the lease of 1871 and not new
and Independent contract and upon this
view the city of Durham claims that
the Southern Railway took it that the
burden imposed upon it by the Richmond
and Danville Railroad Company. The
Southern Railway Company on the other
hand. contends that the deed made by
the North Carolina Railroad Company
to the Oxford and GAINESVILLE Railroad
Company is good and conveyed to the
Oxford and GAINESVILLE Railroad Com
pany the right of-way described in the
deed. and has purchased through the
courts the rights and properties of the
Oxford and GAINESVILLE Railroad Com
many. That if the deed to the Oxford
and GAINESVILLE is not good, it was void
then, that the right-ofway reverted to
the North Carolina Railroad Company
and was conveyed by the lease to the
Southern made in 1895.
The question of the right of the city
of Durham to control Peabody street
came up before Judge Purnell yesterday.
The city of Durham was represented
by Winston & Fuller, ]. S. Manning, ".
Fl. Day & Boon, Bryant & Biggs The
Southern Railway was represented by
r.. II. Busbee & Son, Major Charles
Frice and Colonel Henderson, their gen
eral counsel. The first speech on behalf
of the city was made by Judge Winston,
who was followed by Major Price for the
Southern Railway.
The city contended through Judge Win
sion that although Peabody street was
within one hundred feet of the track
of the North Carolina Railroad at Dur
ham, still that the Southern Railroad
was not entitled to claim same as
right of way, for two reasons.
The first reason assigned was that the
North Carolina Railroad had never con-
denned any land within the city of
Durhm as and for its right of way, nor