The Montgomery advertiser., 1905-07-13

park for such a purpose. This Is true.
 street railroad, under the iaws M or
 purchase any lands not employed Tn the
 discharge of its public duty. If, how
 ever, the owner of lands grants a right
 of way. that is a matter between It d ana
 has granted right, and 1t is challeng-
 ed by one who takes subject to any lawful exercise of the right by the own
 CT of the land. So far as the grant is the Walkers do. and Is not in position to
 assall the validity of the conveyance
 of the right of way, Besides, the legis-
 lature having expressly authorized the
 ted in towns which adjoin each other,
 and between which 1t runs. the opera
 ton of the road between Bloemfon-
 taine and Montgomery and into bioem-
 ultra wires. The deed to the right or
 way imposes no limitation as to the
 use. except that 1t must be TOT Tor stree. fa
 railroad purposes ,n While ,hs the r1sha mafh motive n, w.v in and ouS,ns SSniidinx 'ni into the
 park, may have been to transport only ed into the park. there is no legal the line into the park as common ,Sa carrier. for the accommodation of the
 public generally. Whether passengers other than those invited In the parks
 of which this grant arose, go off the
 right of way when carried In, ana
 enter upon the leased premises. With
 out the consent of its managers. IS an,
 other question, as to which no opinion
 is now intimated. Il is alluded to only
 to show that the Traction Company may lawfully operate a street railroad into
 the park: and that from the lawful use
 af ha ri0h of this court mas no
 power to restrain 1t, though peThaps !.
 may do so, If 1t abuses the right. 10 the special injury of particular person;
 It Is further urged that our statutes do not contemplate the entry Of street railway into a town. except over its streets. and that. therefore, It cannot condemn and. therefore, cannot n1io @ a in. over private property. As street railroads serve public purpose, u would be competent for the Legislature to authorize them to sonaema sown 9nr righs of way though as yet 1t mas not aTne ,,1e so. We are not concerned nere wl.n the exercise of the power of eminent property in a town, under contract with the owner. It is not a sound propo- sition, that street railway, iawiuhy in the use of street In a city, Tn car ryipg on Its business as common car rier, cannot buy adjacent private prop erty off a street, for use in discharge of its public duty. Such property IS held in furtherance or a corporass, ia% , illegal or ultra wires. The logic or the position, that because street raiiroau cannot condemn private property In city or town for a right of way, 1t can- not hold or use one by grant from the owner carries us too far. By the same reasoning, It could not hold private property in town or clty. TOT an oi- ice or work shop, by purchase or lease from private owners. Property so neid' is held for corporate purposes Pur- chase of private property in cities TOT renee and falls neither within the spirit nor letter of the rule which forbids cor porations to exercise any power not ex- pressly given. or necessarily implied.
 Construction of HeservatiOn.
 6. What was in the minds of the parties when they provided nothing in the lease shall be so construed as to prevent the parties of the nrst lthe by deed or lease through any part or said leased lands for railroad pur- poses? In dealing with this contract, courts sa cannot 9to forget tnas sacreS ee ths eyes of the law. and that the rights or property stand almost on the same plane with the right to life and iib- the same breath With life and liberty, in Section 35 of the Constitution of Alabama, which ordains that the sole object and only legitimate end of goy- crnment is the protection of life, no- erty and property" Courts must pre- serve for every man what Is his in the eyes of the law. whatever the urgency of other interests, public or private.
 Much ability and research has been exhibited by counsel in citing cases ana drawing distinctions between excep- tions. limitations. covenants and reser- vatiOn. These. however, are important only in arriving at the true construc- tion of the intent of the parties. The subject matter and the object the par ties had in view. must be borne con stantty In mind The purpose of the lessors was to surrender control ana of the lands for park ana place of amusement, to be managed ana controlled exclusively by the lossecs, so devoted to any other use, for the period of twenty years. The only rights re- served by the Walkers were to enter the lands to remove certain kinds or timber, and to re-cntor it ii the rent was not paid, and the rigat tG grant rights of way for street railway ?ur.
 a Psrt Of rESs tRS @era to be exercised during the period of twenty years, in which the exigencies of the business and changing condi- which would materially shape and de- termine the respective rights of the parties as to the exercise of the reserv- ed power. The lessee could not arbi- trarily say to the lessor. 'l need the entire body of lands. You shall not grant a right of way over any of them.' IT lesors could not aroItrarily say to the Iessces. You must move your build Ings and disarrangc your park, because we have located a right of way through them" The power to locate the right of way must take the channels of least Injury to both parties So long as thA leased lands are not actually SO used by the Amusement Company. for its business. that to remove it's buildings, and structures, or disarrange them. and the adjacent grounds. would be de- structive of the purposes of the lease, or of the proper economical manage ment of the park, the Amusement Com pany has no right to object to the le.