The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-04-06


street and the Duke factory. During
the summer of 1899 the Seaboard Air
Line which had bought out the Dur
| ham and Northern made application
| to the board of aldermen for permits
sion to bring a suit in the name of the
town against the Southern Railway
Company, successor to- the Richmond
and Danville, which permission was
granted on condition that Seaboard
pay the costs Of this suit and give an
| indemnifying bond to the town. Ac-
cordingly a suit was brought to the
court of Durham county by the city
of Durham against the Southern Rail-
way in which they set up the former
| litigation between the town of Dur
| ham and the Richmond and Danville
Railroad Company, and the judgment
of the Superior court of Chatham
county which had been decided inFfa-
yor of the town, and asking that the
city of Durham be declared the own
er of a strip of land on the north side
of the roadbed of the North Carolina
Railroad 80 feet wide and extending
between Roxboro and Church streets
west to the corporate limits and
known as Peabody street, and further
asking that the Southern Railway be
enjoined from using, occupying or OBJ
structing said street. Thereafter the
Southern Railway answered claiming
that the Chatham county judgment
was only good until the end of the
old Richmond and Danville lease of
the North Carolina Railroad, to-wit:
September, 1901, and that after that
time they owned Peabody street as
a part of the right of way, saying
that they owned all that part of this
right of way denomianted by the
plaintiff as Peabody street for it's legit-
innate present and future uses as
railroad for the operation of it's trains
and carrying on of it's business. In
the fall of 1899 this case was re-
moved by Judge Purnell to the Uni
ted States Circuit Court for the East
ern district of North Carolina. The
at Raleigh until February 16, 1903,
when the same was decided by Judge
Purnell in an opinion. 1t is reported
in the 121st Federal Reporter S94. The
first paragraph of the opinion of
Judge Purnell contains what was in
litigation in this suit: Complainant
commenced its action in the Superior
court of Durham county on July II,
1899 and filed a complaint, which, af-
ter formal allegations of corporate
of Durham, is the owner and entitled
to the possession of a certain strip
of land on the north side of the North
Carolina Railroad, a part of what is
dedgnatcd and known as peabody
street in the city Of Durham N. G.
to an action of cjectment, but there
is no objection to the form Of the
plcadings, nor was there any serious
discussion in the, argument as to such
form, whether ii is an action in eject
ment, or plaintiff claiming possession
in an action to remove cloud upon
title or restrain threatened trespass
etc, but all were incidentally dis
cussed; technical objections being
waived, and a disposition by all to
present the real question at issue.
Plaintiff claims to be rightfully in
possession of the locus in quo, n strip
of land on the north side of the right
of way of the North Carolina Rail-
road Company, about 80 feet wide,
and extending from Roxboro street
to Cigarette street, now used by an
other railroad company as right of
way. This will be better understood
from the plat hereto attached and ex-
hibited." Here follows a map showing
Peabody street lying entirely north of
the main line of the North Carolina
street is seen in the plaD.
There is nothing whatever in the
opinion about Pettigrew street and
the entire opinion relates to Peabody
street. Judge Purnell went on then
and concludes as follows, page 500:
For the reasons nGrelllDGIOTG
stated and other moving the court,
it is considered ordered, adjudged,
and decreed that the bill, complaint
as originally filed, and all proceedings
subsequent thereto and hereunder be
dismissed; that the injunction herein
be vacated and dissolved and the city
of Durham pay the costs to be taxed
by the clerk of this court. A final
decree will be entered to this effect,
and the case is held for the assess
ment Of damages incurred by reason
of the issuance of the injunction here
in, and for no other purpose"
A copy of this judgment and de-
cree was furnished to the attorneys,
and the city of Durham appealed
from it and in it's assignment of err
rors it fully appears that the city was
appealing from this judgment and de-
cree of Judge Purnell filed on the
10th OF February, 1908. The attor-
neys for the city of Durham did not
see the decree which was afterwards
filed by Judge Purnell on the 23rd of
February and which was in direct
conflict of his decree and Judgment
filed February 10Th, for in his judg-