Evening journal., 1905-11-06
GRANTS
! INJUNCTION, DISMISSES
BAYARD APPLICATION
Continued from First Page.)


Railroad Company respondent can be
shown to have taken the pains to proceed
correctly in the condemnation of com-
plainant's property"
CONDENSATION DEFECTIVE.
The Chancellor then takes up the con-
demnation proceedings instituted to se-
cure Johnson's property And says.
'''rhe authority upon which depended
the whole proceeding Of condemnation
formally declared forty feet to be the
width of the strip to be condemned, thus
at once creating and limiting the power
TO take. The commissioners on the other
hand totally disregarded their mandate
proceeded to take a stripe exceeding that
width by one foot ana two-tenths Of a
foot
Nothing has been suggested by coun-
sci, nor have 1 been able to discover any
thing which could give me the author
ity to alter or amend the condemnation
proceedings, or in any way avoid the con-
clusion that an the proceedings suisse
quent to the resolution Of the Board of
Directors were fatally defective and void.
Respondents solicitors have submitted
an affidavit by one Of the railroad engi-
neers which gives the reasons or mo-
tives which induced the variation but un-
fortunately motives. however excellent,
cannot alter its legal effect.
TT appears to be clear. therefore, that
although the respondent had the power
to condemn the property in dispute in ac-
cordance with thep rovisions of the Gem
eral Corporation Law. yet it is equally
clear that it has failed so to do"
After further discussion OF the case,
the Chancellor rules;
Il am therefore brought after the long
and arduous labors which this branch
of the subject has cost me. as well as the
counsel in the cause. to the same conclu-
sion which 1 announced upon the deci-
sion Of the first motion in the Bubenzer
case, viz: The complainant failed to sus-
tain the contention that the land south
wardly of his premises is an extension OF
Water street and, therefore, a publ {
highway
The complainant repeats all Of Tho
grounds Of objection in the present case
that were made in the Bubenzar pro
ceeding and they were decided in like
manner.
INJUNCTION GRANTED.
"There is but one question, therefore
still to be discussed says the Chancellor
and that is whether the complainant is
entitled TO an easement of right Of
way obtained by user, and if so wha
way.
1T having been shown above that Tho
condemnation proceedings taken by re
spondent were fatally defective, it fol
lows that the complainants motion for Z
preliminary injunction must be granted
so far as to restrain the railroad com
pany respondent from entering upon o.
taking the premises sought TO be con
demned
"It also follows that II there be al
/ easement Of a right OF way attached {
the said johnson property it should b
protected by an injunction. The com
plainant claims a longitudinal right z
way alongside the railroad tracks
! West street for both of his abutting proT
+ critics and also claims a right of wa
/ across the railroad tracks for the pror
erty upon which there is a rear entranc
to his saloon.
''The failure Of proof rs 70 this latte
claim is complete. In fact the affidavit
submitted on this point seem 10 have bee
intended TO support two different conten
tions, and they appear to be relevant t
/ thee lain of an indefinite rowing use O
the respondents railroad track as a pub
lie highway or city street rather than {
/ thee lain of user of a specific way TO tn
/ rear entrance of complainants property.
Fifty-two aindavits are then referred I,
After considering the important ques
I tion Of law raised in the respondent
brief. the Chancellor quotes opinions a
length regarding the railroad company
contention that a longitudinal right q
way along the right Of way OF a railroa
cannot be granted by the railroad con
pany. and therefore. such easement car
not be acquired by user which presume
a grant.
He concludes:
In view or all the considerations whic
I have adduced in reviewing the confuse
and complicated matters presented fC
my determination upon the pending m,
tion, and also in view OF the fact tha
one of the fundamental rules controllin
the action of a Court of Equity in gran
ing or refusing an injunction is that II
protection Of the writ must be actual
and not theoretically needed in order I
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