The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-04
HICKORY DEPOT
Supreme Court Again
Hears Injunction Case.
Argument in Appeal of Corporation
Commission in Case of Order to
A. C. L. Begun Yesterday and
to Be Continued Today.

fecting railroads and public powers
and rights
One of these was the case of City of
Hickory VS.. Southern Railroad in the
Supreme Court for the second time
and affecting the right of the road to
use a portion of a public square of the
town for the purpose of a freight de-
pot, and the other that of State eX rel
Corporation Commission VS.. the Allan
tic Coast Line Railroad. involving the
power of the commission to order the
road to install track scales for the
weighing of lumber at Elm City.
Another Right OF Way Test.
The Hickory case, which was
argued by Messrs, Thos. M. Hufham
and Self and Whitener for the town
and by Assistant Division Counsel $.
j. Irving for the railroad, is one of
particular interest. 1t seems that
more than forty years ago one H. w.
Robinson decided to the town and the
railroad with the right to use the de-
pot as then existing q public square
in the centre of the city, the railroad
to use the property within the certain
defined limits and the town to enjoy
the other portion of the lot con-
veyed.
At the time of the conveyance the
property was worth comparatively lit
tie but has increased with the passage
of years until its present value is esti-
mated at above $25, 900.
A number of years ago. the original
deed having been lost the grantor
Robinson prepared a new deed of the
same tenor and effect and Major Will
son, the president of the then Western
North Carolina Railroad. accepted it
in writing on the back of the deed.
Finally, after the road had passed
into the hands of the Southern the
operation of the freight depot became
a dangerous nuisance and the town
applied to the corporation commission
under the Fuller bill to have a new
depot constructed. The order was
made and the road thereupon COM
menced the enlargement of the depot
SO as to encrOach on the land specific
ally reserved in the deed to the prop
erty to the uses of the town. The
town then applied for an injunction
which was refused by the lower court
which found the facts as to the deed
as stated above. but held that the
railroad was not bound by the deed
by virtue of its right of way, which
includes hundred feet on each side
of the track
The town Of Hickory then appealed
to the Supreme Court and the decision
of the court below was reversed. and
ceived q perpetual restraining order
against the encroachment of the road
on the property OF the town as de-
fined in the Robinson deed. Where
upon the railroad appealed, which is
the matter in contention at the pres
emf time.
The question before the court in the
present instance is simply whether
there shall be a trial de novo as TO
a ri OH of a nd
the railroad. or whether the facts as
to- the provisions of the deed were
determined at the first hearing on the
application for Injunction in the lower
court. In that instance. the court
having found the facts as to the deco
and minated that it would refuse the
injunction asked the plaintiff took 2
non-suit and appealed to the Supreme
Court.
On the question again arising in the
lower court on the second application
for injunction, the railroad took the
ground that since the plaintiff had
submitted to non-suit. the trial
should be gone into de noVo before =
restraining order should be granted.
The plaintiff commended that as the
judge below had found all the facts
necessary for deciding the case. there
was no occasion, for a new trial: that
the non-suit was based upon the con-
dition that the Supreme Court should
affirm the ruling from which the aD-
peal was taken.
Corporation Commission Powers.
State ex rel Corporation CommIs
sion VS. the A. G.. l.. arises on an ap-
peal by the commission from a ruling
of Judge Justice that an order of the
commission requiring the defendant TO
put in a track scale at Elm City for
the purpose of weighing the lumber
of the Dennis-Simmons Lumber Co.
in car load lots, was not within the
powers of the commission as defined
by the act creating that body
The order was made on the applica-
ton of the lumber company, when
showed that it was very large ship
per of prepaid freight in car load
lots; that from Elm City alone its
freight bills amounted to over 100000
that the practice Of the rail-
road, which furnished no facilities for
weighing at Elm City in car load lots.
was to forward the lumber either TO
South Rocky Mount or to Primer y
Point to be weighed and that there
had been many instances of Irregular
and incorrect weights as the result Of
such practice.
In supporting the power Of the com
mission to make the order the plain
Z, II and II of the corporation CON-
mission act giving the commission
power under section Z, to make re;t-
sonable regulations as to freight and
passengers; under section IL, giving
them power to require depot accom-
modations for freight and passengers
in accordance with the business done
at such depot; and, under section II,
which requires the railroads on de-
mand of shippers to furnish duplicate
bills of lading. specifying class of
freight and freight charged. which
plaintiff contends cannot be done prop
erly when there is no means Of weigh
ing freight at the point OF shipment.
The reply is that there is no power
TO make the order under section z or
IL and that the provision as to dupli-
cate bills of lading may be complied
with by having the lumber weighed
at another point and forwarded to the
agent of the road at the point from
which shipment was made.
The Atlantic Coast Line admits that
there have been Irregularities in
weights of freights shipped by the
lumber company. but attributes them
to errors in the scales or carelessness
of weighers which can be remedies.
The road also offered to put In the
track scale wanted if the lumber COM
pany would consent to raise in the