The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-28
May Regard OF Law be
Read Contempt.
Continued From Page One.)

tiff. AS will be seen, the decree goes
out of hearing of the question, as IN
dictated in het opinion of the court
and the cross bill must have beeh
potent thing indeed to sustain IL, since
under its specific terms the right OF
wav granted is two hundred feet,
which would naturally include Petu-
grew street. whereas it was only Pea
body street which was in litigation.
Saws the court in its decree:
In the United States Circuit Court
for the Eastern District of North car
DINA, in equity
CITY of Durham VS.. Southern Railway
Company.
Decree:
This cause coming nto be heard
at the December term, 1902, before ms
Honor Thomas r. Purnel, United
states Judge, sitting in equity in the
u. S. Circuit Court aforesaid and re-
straining the plaintiff from interfering
heard upon the bill, answer, said
answer being treated as cross Dill,
replication, proofs, and EXHIBITS, ana
being fully argued by counsel upon
both sides, the court doth declare that
the defendant, Southern Railway COM
pany lessee of the n. G. r. r. Com
pany, is entitled to the immediate pos
session of the right of way Of the SAID
North Carolina Railroad Company III
the city of Durham, to-Wit strip OF
land 200 feet in width; that is TO say,
of 100 feet on each side of the center
of the main track running through
the said city of Durham, and that pos
session thereof shall be restored to the
defendant, Southern Railway Com
pany.
And the court doth further declare,
upon the answer treated as cross
bill and the replication thereto, that
the defendant is entitled to an order
restraining the plaintiff from interfer-
ing with the possession OF the defend
ant of, in and to the right of way
aforesaid.
1t is therefore ordered, adjudged and
decreed that the bill be dismissed, and
that the plaintiff, it's officers, agents,
employees, and any person or corpora
ton claiming by, through or under it,,
be injoined and restrained from inter-
fering with the defendants possession
of the right of way aforesaid.
1t is further ordered, adjudged and
decreed that this cause be referred to
S. F. Mordecai, who is hereby appoint
ed a special aster for this purpose, to
ascertain and determine what dam
ages, if any, the defendant is entitled
to since September II, 1901 by reason
of the issuance of the restraining or
der in this case, and the cause is re-
tanned for this purpose only.
THOS. r. PURNELL,
u. S. Judge, Etc.
r. II. BUSBEE,
CHAS. PRICE,
w. A. HENDERSON,
Attorneys for Defendant.
This decree was afterwards affirm
ed by the Circuit Court, to which the
question had gone on appeal upon the
agreement of the city of Durham to
abandon its appeal, and it is on the
idea that q Judgment, no matter what
its terms is binding that the Southern
is now seeking 10 attach the citizens
of Durham for contempt in seeking aid
of the court of the State for its night
time aggression on property used as 4
street of the town and which has
never been before in litigation about
which, barring the general terms OF
the decree which would include it, |
there has never been the scratch of Il
judicial pen.
Upon these facts Judge PEBBLES de-
cided at Durham that there was great
doubt as to whether the decree above
mentioned, arising as it did out of lit !
igation concerning one street. could be
said to be binding as to another which |
was not then in controversy. He also |
held that the binding force of that de- |
cree, if it even did include the pos |
session of Pettigrew street, only so far |
authorized the Southern Railway in |
possession of the same for it's neces- |
sary uses; and he found as fact that |
the tracks which were laid in the |
night tie were not necessary to the |
conduct of the Southern Railways |
business within the city of Durham |
setting out the way in which at least |
two additional tracks might be laid.
1t will be observed that the glaring |
discrepancies between the decree and |
hn nf Ind DIV aI1
tween the effect of his decree on prop
erty beyond that involved in the suit,
will naturally create legal questions
which none less than the courts may
ultimately determine. In addition
there are the nice and finely distin-
guished questions as to how far and to
what degree of abSoutism ownership |
of land by a railroad corporation may
be exercised. little thought will |
show TO what ruin a VeStment of own
erShip in quaSi-public corporation,
such as that enjoyed by an individual,
might lead. The road and it's proper
ty-and, more, the way it uses it
are matters of public concern, affecting
all the people in touch with the line
1t is a question that lawyers are vet |
and Will be for q long time, at odds
about, how far the ownership of a
road in its land may be used in dis
regard of the public.
1t was q StlonS such as these that |
the citizen, of Durham sought to de-
eide through the regular channels of
a court of law when they quietly and
in order sought of Judge PEBBLES an
order restraining the further building
of tracks on Peabody street until those
questions could be passed on by the
judiciary.
On that proceeding the Southern
Railway comes into court and makes
a bluff at abiding the decision of the
judge to the point of confessing his
jurisdiction. 1t makes a motion to dis
solve the injunction and cites the opfn.
ion of Judge Purnell, affirmed bv the
Court of Appeals, along with other
evidence. But when the motion is
lost, when it's right to removal that