The Montgomery advertiser., 1905-07-13

lands. It is doubtless true that sne reservation being restrictive of the u20 granted. would be dersatea, ii ed rns ehi,f tnsf subsequent location of a right of way would be destructive of tho objects of 'hf That neais' is not the case here. Only part of the leased premises are % sc occn.
 location t Sf right .sr,s of way Sa tnriSGp9o a.iG objects of the lease. Ordinarily. the bringing of new line of transpor- 'h try is @ safe and suitable. is an ad- vantage to a private place ot @ amnse- nn, soluts 70 tses ownsrs. nsns So far ss n: issssss are concerned the walkers; In the sEs power for them. If the parties 5oint- iy and equally interested cannot agree.
 hoT Ggy' a f sSnrs ssuy han and exercise of the power
 Surrounding Circumstancss.
 n,a Putting .be onss s,tsde sd of the partss at circumstances. T the first thought which ,ss rsss r that ordes es tS pus n beyond the ability of the lessees of the park, by their control of this par ssacies u1 1 in the e way of any street rail- the city of Montgomery. through the Walkers. Obviously the lessee was in
 terested in having the par,s reached by street railways, and nd .,tsls t ls street railroad out. which merely de- rsS ts sn.sr ana sseR hs sess,ns erHs,foy wsSeh rsSa,rs sousSt aa to enter sr ss to lana pass sro% 5as G leassa
 The street railway then most likely tS sesSs sSs hs sree s Hne in or miie G0of of the park. At the time anotser shs lsere lne Mas a' of sireet railway the City of Montgomery. to Pickett Springs was in contemplation. ana tne of negotiation with the public authort- ties Looking forward to and antici- pating changes which might happen %,'hih Ss that t"f tha walkers reserved this power to grant right Of way throudsn ordsr part of the leased lands. in order to induce street railways entering from the City of tS of tSs order to reach out for passenger busi- ness which might be expected to grow up from the mt use to ,Sa %h'ce court the .houid id hold that the reserved power was in- tended to apply only to rights of way for rathiwayys nsnk wnlch in nsea order to reach outside points between their termini. 1t would add a limitation upon the no whish tas and wsics tss surrounding circumstances do not tend is support. The conclusion .ha..a that the he this phase of the matter. did not have aye ia power. %na to % lhdase stfeet raiIways .,. to Which otherwise might not come there. in order to reach the business or tne park. would be based upon meress also induced the reservation, Tns buildings to. put upon the Prem,sest; a the Hd Of the sns lsass sss ysae 'o Of sSsm at the end of the lease. would depehho largely upon the x. prosperity or the @ p%siksra p%arikk mansgsrs rssenyed the % rsht to grant a right of way to another road in & or. der to give them power to prevent sne erippns of the Pafk ,dom in event of should so manage its business In the future. as to .retard that of the park; park These and ddoDtamp,ation Sther thams The % fact Y. today, to ptht that the exercise of the power y1s Which finally enabled them S c;,s SS in; 2; Mo9tgo%ery to come ss,sssnt Span to otass sss leased lands. in order to reaeh the leased lands. It is not permissible Tor court to strike down rights. whic1 the words of q contract include. ana which the surrounding circumstances do not exclude, upon the supposition that the parties were not In faSt. sui rnaaerticular raettil ~ use OF advantage which might happen 'n the future future. 6y tns er' nne ,,Ie M exercise of whios. might bring them this advantage, 1t is not for the court 70 dspriX,e them h,cb c h. have whsn grown up around Montgomery and its suo- urbs, have. in fact: given the adyantt the Walkers might have not foreseen what now has happened. Nothing can now defeat that advatnage, unless iss destructive of the purposes of their grant. of which we will presently in- quire. .u.a
 T The Court has not overlooked the estoppel the answer seeks 10 visit upon the Amusement Company to object 70 defendants entry, nor the amaaVrss ns this preliminary motion, in the absence of fullest evidence. the Court will noe pa ss upon a question which goes to tne very root of the litigation. It Is proper to remark In passing, however, that the answer does not allege directly. but by inference merely. that the contract by which the Traction Company suc- ceeded to the rights of Massey Wilson and associates and built its line through Capitol Heights, would not have been made but for reliance upon statements at the interview with the officers of the Amusement Company when the entry of the Traction Com