Evening journal., 1905-08-28

of the deed which quoted in full Is as
follows:
TO have nd hold the sale ract Of
land. hereditam ments and iremises
tended so to be with the appurten-
ances. unto the aid The Mayor and
Council of Wilmhn ;ton, its successors
and assigns. to the only 'oper use
and behoof of the SAID The Mayor and
Council of wilmington, as successors
and assigns forever, for the sole use
and purpose Of a public park, subject
however. to the following restrictions
and limitations. Wis; that said Rock
ford Lane shall forever hereafter re-
main open as a public highway at the
width the same now is unless the said
lane shall be vacated or closed by aud
with the consent of the owners Of the
water power of the Brandywine at
Rockford, their heirs. executors, ad-
lministrators or assigns"
Upon the above ground the COM
lplainaut prays for a preliminary in
junction restraining all the respond
Tents from taking any further action
whatsoever under, or in pursuance of
the terms Of the agreement license or
contract" above described.
In response to this the respondents
in their several answers allege that
the only portion of the lands includ-
ed in the grant referred to in the fifth
paragraph of the said BILL which il is
Contemplated shall be used for rail-
way purposes. comprise a certain pub
/ tic road, known as Rockford Road.
and that the said railway will not at
lany point. or points. cross or touch
the said lands mentioned in the said
paragraph of the said bill, excepting
along the said public road"
And the answer of the Peoples Rail-
way Company, respondent. also al
lleges that the said conveyance in the
said paragraph recited was made to
and accepted by the said The Mayor
and Councillor Wilmington, subject to
the right of all persons to use the said
lpublic highway in---all particulars
proper for a-public- road or street in
/ the city Of Wilmington and State OF
/ Delaware"
The route of the proposed railway
through the park connecting tracks
/ of the Peoples Railway Company
south OF the park with portions of its
track. lately built, north of the park.
is fully set forth in it's answer with
accompanying maps. and it is alleged
that owing to the location of the track
in unused portions of the park and
the conditions under which the rail-
way is operated according to the
agreement above referred to. it win be
a benefit instead of "a detriment to the
park, as well as Of use to many who
s otherwise. would be unable to enjoy It.
The question. however of the ex-
pediency or desirability of a railway
located and operated in the park in
the manner described is not before me.
Nor is there any question raised in
this case with regard to the power of
the Mayor and Council of Wilmington
to grant such license. or enter into
such an agreement as the one under
consideration so far as it concerns the
portions of the park other than the
parcels Of land conveyed by the deeds
referred to I'm paragraphs V and VI
Of the bill.
All of the questions raised by the
pleadings relate strictly to the par
GELS of land conveyed by the afore-
said deeds, and the complainant's case
! is based entirely upon the terms of
/ the deeds above cited his claim be-
ing that the license or grant to the
Peoples Railway Company is in con-
! travention of the terms of the said
deeds or conveyances and that the To-
/ cation and operating of a railway un-
/ der it would be a diversion of the land
= granted to a use other than that of a
public park.
Although the respondents coun-
: sci combats this contention, arguing
, on the one hand that there is statu-
; tory authority for such action on the
part of the Board of Commissioners il
2 other parts of the park, which applies
: to the parcels of land granted by thu
r conveyances referred to, notwithstand.
> ing their terms, and on the other hant
/. claiming that the license or gran tt
5 the railway company is not in con.
e travention of the terms OF those deed
that it is not inconsistent with tn
! use of the land for the sole use an,
r purpose of a public park. yet he rest
= his defense principally upon tn
e grounds which / will now proceed t.
I consider.
, In the first place with regard to tn
Y parcel of land referred to in paragrapl
D V Of the bill. that is the land granite
r to the Mayor and Council of VIII
= mington by William p. Bancroft ant
iEmma c., his wife. the complainan
e claims the right to ask the interven
e zion of a court of equity solely upoi
y the ground that he is a resident citi
= zen and taxpayer of the city of viii
s tmington. as is alleged in the seven
s teenth and eighteenth paragraphs o
5 the bill. which 1 have recited above.
Y The respondents counsel, however
4 insists that the complainant has n
- standing in court in this case merel
e las resident citizen and taxpayer.
Y having been so held with regard t
IS this class of cases by the overwhelm
ling weight of authority.
5 He cites the case of Biggs VS.. Buck
# ingham ct al, Delaware Chancery
e page 2G7. in this State. and refers I
i Vol. 10 Enc. of Pl and Pr pages 80
y Ito 901. for a very extensive IL no
Il complete collection Of the authoritie
IT throughout the Union upon this sub
e ject.
d This question has been so muc
d discussed and the authorities are s
e overwhelmingly In favor of the con
II ltention Of respondents counsel that
h is not necessary for me to analyaA q
II or discuss the cases. viii only quot
# from one late case especially referre
/; to By the respondents solicitor. viz
d Manson ct al. VS.. South Bend Rail
ie road Company ct al. Al S. F.. pag
j. -tS32, decided by the Supreme Court c
Is South Carolina in 1902.
n The syllabus is as follows: Resi-
d dents OF a city whose interest in
public park differs only in degree fror
d that of the other residents of the cit,
- and whose pr6perty does not abut q