The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-28
The Crime of the Citizens
of Durham.
WHY NOT THE COURT z
The Idea that a Person Applying for
redress of Wrong and AdjudiCa-
ton of What he Thinks His
Right New Doctrine in
North Carolina.

In order that it may be well under
stood upon just what frounds are
based the contention that certain of
the foremost citizens of Durham are
ought to be attached for contempt by
Judge Pritchard, at the instance of the
First Vice-President of the Southern
Railway. for having sued out an IN
junction before Superior. Court Judge
r. b. PEBBLES against the continuance
| or use of a track along Pettigrew
| street which was laid by the Soutn-
! ern in the night time and by stealtn,
| there are subjoined hereto certain eA-
| tracts from the opinion OF Judge FuI
nell in deciding the litigation aDouI
| Peabody street, for the settlement OF
| which the attorneys of the city or
Durham afterwards consented to with
| draw their appeal to the higher court,
which affirmed the decree OF the court
| below.
The decree is also set out below IN
| full, and it will readily appear to read
er. even though he be not even slight
! Iy yersed in law, that the terms OF that
| Judgment are far and beyond anything
| contemplated in the questions at issue
| in the litigation of which 1t marked
| the close, and that in the highest OF an
| eduity-that of common right ana
1
appealed to in the decision of mat
| ter arising on other land than that in
| litigation and much less made the SUD-
| iect of a criminal prosecution against
! a bakers dozen of the best and most
| progressive citizens of fourishlng
municipality, who dared TO appear
| when they considered that they had
! suffered a wrong to the regularly con-
/ stituted court OF the State which was
| nearest to their hand.
Nothing of Pettigrew Street.
The opinion of Judge Purnell viii
| be found in the Federal Reporter, be-
| ginning at page S94.
! In his opening paragraph Judge
| Purnell thus sets forth the questions
at issue in the case in which Durham
was the plaintiff and the Southern
Railroad the defendant in matters per-
| tanning to the possession of Peabody
! (not Pettigrew) street:
| Complainant commenced its action
| in the Superior Court of Durham
| county on July II, 1893, and filed
! complaint, which, after formal alle-
cation of corporation eistence, etc., al
! leges that it, the city of Durham, is
/ the owner and entitled to the possess
| sion of a certain strip of land on the
north side of the North Carolina Rail-
| road, a part of what is designated
| and known as Peabody street in the
city of Durham, N. c. The form OF
! the pleading is similar to an action Of
electment but there lis no objection TO
| the form of the pleadings nor was
! there any serious discussion in the ar
| gument as to such form, whether it is
an action in ejectment, or plaintiff
claiming possession in an action to re-
move cloud upon title or restrain q
/ threatened trespass, etc, but all were
incidentally discussed; technical oD-
! jections being waived and DISPOSE
| ton by all present TO present the real
question at issue. Plaintiff claims to
| be rightfully in possession of the locus
in quo, strip of land on the north
] side of the right of way of the North
| Carolina Railroad Company, about 80
! feet wide and extending from Rox-
| boro street TO Cigarette street, now
/ used by another railroad ompany as
! right of way. This will be better un-
derstood from the plat hereto attach
! ed and exhibited"
(Folows a map which shoys the
/ line of the North Carolina Railroad,
and only those tracks on Peabody
street which are on the north side of
| the right of way There is no sug-
/ gestlon in the plat, as there is no men
tion in the opinion of Pettigrew street.)
Only Peabody Injunction.
And in the concluding paragraphs Of
|
''The form of the action was admit
! tedly defective in this as a court of
| chancery, but as counsel have argued
/ the case on it's merits, it should be so
decided, and@is so considered without
adverting to mere form or technical
objections not raised or pressed on the
hearing or by motion to reform the
! pleadings. There is no evidence of a
threatened irreparable wrong, or the
| absence of an adequate legal remedy.
For the reasons hereinbefOre stated
| and others moving the court, it is con-
sidered. ordered, adjudged and de-
! creed that the bill, coplaint as original
ly 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 assessment of damages
incurred by reason OF the issuance OF
the injunction herein, and for no other
/ purpose.
Opinion and Decree Vary.
For the reasons set out in the opin-
| ion quoted in part above Judge Pur-
nell then drew up the following de-
cree. based uDon a cross bill of the de-
| fendant Southern Railway cross
/ bill being in the nature-if it might
be SO expressed-of an answer to Il
charge which does not content itself
(Captip44ad l,y, Toaya csi~v