The Montgomery advertiser., 1905-06-25
WON'T TEAR UP TRACK
JUDGE sAYRE RULES WITH TRAC-
 TON COMPANY.
Motion to Dismfss Injunction by Mont gomery Street Railway without Equity According to Opin-
 ion of the City Court.

| FaE
 Judge A. D. sayre presiding over the. City Court of Montgomery in | Equity. yesterday overruled the motion | of the Montgomery Street Railway to ! dismiss the injunction preventing the Montgomery Street Railway from tear | ing up the tracks of the Montgomery Traction Company in Electric Park ] This Is the first favorable combat the
 IT action Company has fought since the great battle of Electric Park was joined by the rival street railways. Heretofore the Traction Company has been playing in the role of Kuro- patkin. Linevitch. ct alsky, while the Montgomery Street Railway has been as invincible in court as the battalions of Oyama are on the field.
 It will be remembered that when the Probate Court of Montgomery County refused to allow the Traction Company to have it's eastern terminal on a place in the park leased to the Montgomery Amusement Company unconditionally, the company purchased a right-of-way from Mrs. Hal T. Walker to enter Elec- tric Park. This property was leased to the Montgomery Amusement Company with the condition that she be allowed to sell right-of-way to any street railway at any time.
 The Traction Company, by the aid of night, laid tracks into the very heart of the park and the Montgomery Street Railway immediately secured an in- junction from the Chancery Court to prevent the Traction Company from operating cars thereon. alleging that the company by piratfcal measures was attempting to reap the benefits of a park built largely through the efforts and money of the Montgomery Street Railway.
 The injunction was granted. The Traction Company acted quickly, how ever, and applied for ~an injunction to prevent the Montgomery Street Rail- way from tearing up it's tracks in Electric Park. A temporary injunction was granted. Yesterdays decree al- lows the injunction to hold good.
 Both cases will find their way to the Supreme Court of Alabama.
 Judge Sayre's opinion was as fol- lows:
 Having before me the /inuniments of title of both parties to this cause, being confident of the right of the Traction Company to enter Electric Park so long as 1t exercised reasonable regard for the Improvements already there, and feeling assured of the legal impossibility of permitting the destruc- tion of the Traction Company's prop erty on an ex parte showing and in advance of a final decree after full hearing, I interfered for the sole pur-
  venting a destruction of the Traction Company's property until hearing could be had at which both parties might be present.
 Nevertheless, having now a nearer view of the possibility of conflicting decrees between courts of concurrent Jurisdiction, the avoidance of which must always be a consideration of con- trolling importance, and appreciating the advantages of good neighborhood in the Judicial system, think it proper to say that upon legal proof being made of the pendency of the suit be- tween these parties touching the same subject matter in the Chancery Court Of Montgomery, upon a submission for that purpose, a decree will be rem dered dismissing the bill in this court.
 'T am of opinion that the demurrer to the bill Is not well taken, and that the injunction need not be dissolved. Tn respect to the injunction, 1t Is prop CT to note that the street railway has carefully elected in its hill in the Chancery Court to treat the Traction Company as a mere trespasser without right or claim of right rather than as one having right. which Is tn- dubitably true, but exercising it in an improper manner, which may be true or not. This attitude of the street railway towards the Traction Company is emphatically reiterated in the an- swer in this cause. Whether the Trac- tion Company is in one position or the other may be of no consequence as af- fecting the final result of this cause, either being sufficient to defeat its &C., tion. But as matters of fact to be considered on an interlocutory motion to dissolve the injunction, they are very different. The Street Railways denial of the Traction Company's right of entry is evidently untrue, while It's allegation of wrong doing on the part of the Traction Company in locating It's way Is not responsive to anything alleged in the bill. I also think the allegations in respect to the pending of the suit in the Chancery Court of Montgomery are not responsive, and perhaps also the fact of the pendency of that suit is not properly proved.
 '"The Register will enroll the follow ing decree:
 This cause coming on to be heard at this term was submitted on the motion of the defendant to dissolve the injunction heretofore ordered in this cause, on demurrer to the bill. and on motion to dismiss the bill for want of equity, and upon due consideration. 1t Is ordered adjudged and decreed by | the court that the said motion to dis | solve the injunction heretofore ordered | and the motion to dismiss the bill for want of equity be and the same are hereby separately and severally over ruled"
 Other decrees were rendered as fol- | lows: Dave Sellers ve. Albert Dur den, final decree of relief; Nancy Gard