The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-25

ceased suddenly a second or SO after
wards. cut off in the middle Of a mag
nifcent, wolf-like howl. And the ju-
dicial remedy was not needed.
Plaintiffs Aaidayits.
Mr.. Foushee then read affidavits
from the city all tending to SHOW that
the two streets i'm contention had been
used for thirty-fiVe years by the city
and tending to show an easement and
a right of use. 1t was shown that
both Peabody and PettigreW streets
had been used by the town as its own,
had been improved, with lights, pave
ments. curbing etc. That there were
many residences along Peabody street
whose value would be practically de-
stroyed by the proposed tracks; that
the passage of school children would
be impeded and made dangerous and
that approaches to business houses
and to Carr street, and its proposed eX-
tension would be entirely barred; that
the work of improving and the use of
the streets had been done openly and
as a matter of course and the roads
had entered no protests. AtiidaVits
were made to the above effect by
Mayor j. f. Freeman, Geo. w. Wood
ard. City Clerk, Fl. A. Reams, W. j.
Christian eX-mayor and clerk, j. c.
Niche, superintendent of Water Com
pany, M. Summerfield, resident on Pet
tigrew street, and w. j. Griswold vRho
also lives on that street.
At the conclusion of the plaintiffs
afiidavits Judge PEBBLES threw out the
suggestion that the whole thing SEEM
ed to be a question of two easements
and that the parties ought to get to-
gether and build a track on a grade
that would be satisfactory, both to
the city and the railroad This met
with no bounding favor, however, and
Major Guthrie proceeded with his ar
gument, being frequently Interrupted
by questions from the court and TAX
ing up most of his time in attempting
to convince the judge of the error of
his views as TO various questions of
law.
Major Guthrie's Argument.
During the course of Major Guth-
rie's talk i'm which he contended that
the city had enjoyed merely per-
missive right Of ownership and that
the suits started at various times were
notice to the town, Judge PEBBLES
again pressed his view that the APP
peal from the decision of the Federal
Court had vacated the judgment so
that the subsequent decree was mere
ly one by consent not calculated to
bind the present city authorities.
Major Guthrie and Mr.. Busbee
both contended strongly that the APP
peal did not vacate the Judgment be-
cause il was the appeal which was
abandoned and the decree of the court
above merely affirmed the decree of
Judge Purnell. this having the effect
of simply substituting his decree for
that of the Circuit Court.
Out of the maze of this involved le-
gal discussion by which the court was
seemingly half convinced, Judge
PEBBLES came smilingly with another
poser for the defense I'm his declara-
ton that the question was with him
whether if the Circuit Court did de-
eide that the road was entitled to the
possession of the street, it permitted
the road to use the possession so as to
injure others. The question decided,
said he, was whether the road had
acquired the right Of way of the North
Carolina Road not whether they
could use the right of way as an OBJ
struction to the business of the town.
The affidavits of the plaintiffs alleged
that there were plenty of places where
the tracks could be built; this was Il
special injunction and it looked as
though it ought to be heard on its
merits.
Counsel for the defense put up sew
eral decisions to the judge, which he
said were not answers to his points
and after tangle of close legal ques-
tons, in which the counsel for the
plaintiff contended that the Durham
act of 1899 was a public act repeating
section $50 of The Code as far as the
locality of Durham was concerned,
and Judge PEBBLES saying that while
he was frank to confess that the opin-
ion of the Circuit Court might act as
an eStoppel in Il hearing on the merits,
he was not at all certain that 1t went
so far as to give the road the right
to create a nuisance, the morning ses-
sion finally came to an end with judge,
lawyers and reporters all filing off to
the scene of the midnight operations
which had given Durham two more
railroad tracks and a first class SEN
sation.
Tall Track Building.
If the tracks were laid as Agent
Graham stated they were, all in the
early hours of Monday morning, there
was work done in a way to suggest
Japanese intrenchments. The track
on Peabody street, starting just to the
east of the depot dips down the bot
tom and up the long Hill beyond to
the neighborhood of Chapel Hill street,
at the Duke factory The distance
must be all of three hundred yards.
And the road is laid on good ties, the
rails nave Deen proved, ana the track
ballasted with red stone. On it yes
terday were a putting yard engine, a
car of ballast and n freight caboose,
probably where Judge PEBBLES in
junction had found them. This is the
track which is alleged to have been
laid for the purpose of permitting the
Norfolk and Western to get into the
new Union Depot, which is at Church
street. some two hundred yards east of
the present depot When the town
discovered the dodge on Monday morn
ing the aldermen met at once in
special session and revoked an ordi-
nance permitting the Norfolk and
Western to use Chapel Hill street to
get into Peabody, and so to the TN
ion Depot SO that there is still
another complication there to Dur
hams railroad war.
Let's look at the new depot" said
one of the attorneys to me. | avow-
ed that | would wait till the trains
got to running in it. you might die
first" said the attorney, and l went
1t is pretty depot, but like everything
else about Durham connected with
railroad, it is queer. 1t is situated
in hollow, with the blank wall of a
building right against its rear and the