The Savannah morning news., 1904-07-18


nent use of a street for railway pur-
poses"
I'm view of this established princi-
pie. and in view also of the provisions
which expressly restrict the power
control of streets. pavements, street
railways and the like, it is clear that
the effort on the part of Council to
grant the franchise under discussion
to the street railway by resolution is
absolutely null and void.
Rights of COmpIainants.
I'VE have under consideration the
property rights of many compliments,
all seriously threatened with loss and
damage by the unlawful and void ac-
ton of a city government which is it.
self the creature of the state. This
action is taken I'm behalf of a street
railway corporation which is also a
creation of state law. 1t is then clearly
case where the compliments have
no adequate remedy at law.
Before this objection is maintained,
it must be made to appear that the
remedy at law is in all respects as eff
fective and satisfactory as that in
equity. If driven to legal remedies
each lot owner must pursue his sep
arate action in each case, with costs
before the court.
Is Appropriate Remedy.
THE injunction sought will prevent
multiplicity of suits, all involving
the same void enactment. all involv-
ing identical property rights of citi-
zens, all residents of one locality.
That valuable property rights are in
issue in his case is no longer open to
question in the United States courts,
and that injunction under such cir
cumstances is the appropriate remedy
is equally as well settled.
Owners of lots AUDITING or ada
cent to public street of the city,
even if not owners of fee in the
street. have the right of access, and
the right of quiet enjoyment, and such
rights are property which may be pro-
tected by injunction when invaded
without legal authority. 1t was also
held that where there is an unauthOr-
lied obstruction of a public street all
of the adjacent lot owners who sus-
tain special injury therefrom can
maintain a suit for injunction. Here,
moreover, 1t seems that in this partc
ular locality, In Savannah, the fee to
the streets is in the lot owners"
Right of Quiet Enjoyment.
The court then quotes decision after
decision to the effect that all property
holders have the right of quiet enjoy
ment of their homes. Though the ideas
of quiet may be in many cases merely
sentimental, yet, says the court, this
right must be protected.
That the City Council cannot grant
the right to lay tracks on any streets
is held by the court under the clause
OF the Fourteenth Amendment to the
Constitution, which insures that none
shall be deprived of life, liberty. or
property without due process of law"
Continuing Judge Speer says:
Surely these principles thus dis
tinctly and authorltatiVely announced
are especially applicable in the case be-
fore the court. 1t is indisputable from
the record that the electric company
has no purpose to use this beautiful
residence street for the transportation
of passengers.
1T is adroitly alleged in the answers
and also stated in the affidavit of the
Mayor that the proposed track is to be
used for passenger cars
This is true, but all of the evidence
shows, and the counsel for the electric
company when questioned by the court
would not deny the fact that such pas
senger cars would be empties shunted
into the car barns late at night when
the MOIh VI lit udy II ONGIt anu us
tributed therefrom at dawn before the
work of the day had begun.
when RepOse Is Most Desired.
1T is unfortunately true that this
proposed servitude upon one of the
most desirable and beautiful residence
streets of the city of Savannah will
occur at precisely that hour of the
day and night when repose is most
desired, and when its disturbance will
be most injurious to the comfort and
health of the residents and of their
families and to the value of their prop
arty."
Attention is called to the fact that
the company already has tracks on
Bolton street. a street not distinct
ly set aside by the city as a resi-
dence street. In replying to the state
ment of the defendants that, if they
connected with the Thunderbolt line at
the Atlantic Coast Line tracks from
the Bolton street line. that two turns
would be necessary" the court says
that these two turns would be an in
convenience, if any at all, to the troll
ley company and it's employees alone.
In conclusion the decision says:
IL Null and Void.
In view of these considerations,
after careful elaboration, we have
reached the conclusion that the reso-
luton of the Mayor and Council of the
city of Savannah was passed in grave,
IL not fragrant, disregard of the just
rights of the citizens and property
holders who are complainants; that the
latter i'm manner yiolative of the
usages IL not the principles of popu-
lar government have been denied a
hearing in a matter vital to their i'm
terests, by the government of their
city, when that hearing had been ex-
pressly promised them; but that the
resolution passed In disregard Of their
rights is happily i'm the interest OF
justice, null and void, is not author
lied by the charter of the city. or con-
formable TO the express methods OF
legislation therein enacted with rela-
ton to the topics involved that the
resolution is unnecessary for the bene-
fit of the electric company, unreason-
able and wholly unnecessary for the
public convenience; on the contrary, if
permitted to stand It would be most
oppressive to the compliments and
particularly destructive of the quiet
and comfort OF their homes, with large
and inevitable diminution in the value
of their property rights.
For these reasons 1t will be ordered
that the injunction pendente lite shall
be made permanent until final decree.
and that the cause will proceed as
usual I'm equity"
"THF En0I &c cREEnV