Evening journal., 1905-08-28
PARK TROLLEY
WILL Be BUILT
CONTINUED from Page. Two9

than or different from the body OF tax
payers"
Every case cited by complainants coun-
sci at the argument or in his brief was
brought either By a grantor or an abut-
ter nor have I been able to find single
case in which the right Of a taxpayer and
citizen to bring such a suit as this mere
" as citizen and taxpayer has been sus-
tanned.
This eliminates from the case before me
the consideration Of any question connect
ed with the proposed use OF the land con-
veyed by william p. Bancroft and wife
alone and leaves only that of the parcel
of land in the conveyance Of which the
complainant joined as grantor referred 20
in paragraph v OF the bill
II is not denied by the complainant that
the only portion OF that parcel OF land
upon which the line Of railway is proposed
TO be constructed Is what is known as
Rockford Lane or Road; but in reply 20
the allegation made In the answers OF
both respondents and supported by a
number Of afidavits, that the said lane or
road IS and has been for over twenty
years a public road. the complainant filed
long affidavit IN rebuttal
In this affidavit the complainant stated
that he was born in 1910 within four hum
dred yards Of the property mentioned
and that ne has lived ever since within
a quarter Of a mile of the same, and that
TO his own personal knowledge all that
portion OF Rockford Lane involved In this
action was up to the time of the deed men
toned In paragraph V, Of the BILL pri-
waite road leading from near Church Lane
on the south to a point where the Rock
ford lane passes out of the park system
of the city of wilmington, as described In
Paragraph ""
He follows this general statement with
such an explicit description and history
of this road or land and its uses as TO
leave no doubt In my mind as TO the cor
rectness Of his conclusions and no count
er AFFIDAVIT or statement has been filed
or presented in reply to IT,
Granting. however, that It is clearly es-
tablished by the complainant that the
said Rockford Lane was not public high
way prior to the date of the conveyance
referred to in paragraph v, yet there APP
penrs in the habendum OF that convey
ance. which quoted In full, the following
clause coming Immediately after the
words ''for the sole use and purpose Of
public park, wiz; subject however, to
the following restriction and limitation,
viz. that said Rockford Lane shall for
ever hereafter remain open as public
highway az the width the same now Is
unless the said lane shall be vacated or
closed by and with the consent Of the
owners Of the water power of the Brandy
wine at Rockford. their heirs, executors.
administrators or assigns
Does not this clause grant the said
Rockford Road or Lane for the use Of a
public highway rather than that Of a
public park. thereby sustaining the fol-
lowing allegation IN the answer Of the
Peoples Railway Company, viz; And this
defendant further says that the said con-
veyance I'm the said paragraph recited WA
made TO and accepted by the Mayor and
Council Of wilmington. subject to tbs
right OF all persons 10 use the said public
highway in all particulars proper for {
public road or street in the city of VIII
mingtonT'
When the complainant granted this Ian,
TO the Mayor and Council of the city OF
Wilmington FOR the sole use and pur.
pose Of a public park subject however
to The following restrictions and limita-
tions. viz: that said Rockford Lane shall
| forever hereafter remain open as pub.
lie highway at the width the same nos is
| (also Emitting the municipality power e
vacate it by adding unless the said lane
shall be vacated or closed by and with
the consent of the owners Of the water
power of the randywine at Rockford, thel
heirs etc" he excepted Rockford Lane
from the prior limitation to the uses and
purposes of a public park so that it be.
came a public highway as soon as this
Mayor and Council Of the city Of Whining
ton accepted the grant"
1 am unable to read any other meaning
into these words. They seem TO be apt
words of dedication. with no ambiguity
or uncertainty about them. and it, OF
course. follows. that the said Rockford
Lane. or so much of it as was included
within the grant, became subject al
once 10 use and occupation by street rail.
ways IN the same manner and to tn,
same extent as any other highway within
/ thel limits of the city Of Wilmington-be.
came so by virtue Of the grant Of the
complainant and its acceptance by the
city
/ 1t is manifest, therefore, that upon the
case presented the motion for prelimin.
airy injunction must be denied Let tn,
order be entered accordingly.