The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-03-25
City of Durham Wins First
Blood.
Continued from Page one.)

that a decree was then drawn up,
which was consented to by both par
ties to the action by which the decree
of Judge Purnell has been confirmed,
that he was advised that the decree OF
the Circuit Court was an eStoppel, ana
that he has been interferred with con-
trary to the order made in the decls-
ion of Judge Purnell.
Col Andrews affidavit stated fur
Their that the present litigation was
started on March 10th. and that the re-
straining order had issued on an eX-
parte statement or affidavit which did
not accurately state the facts; that
during the encumbency of j. w. Carl
ton as mayor of Durham, the Southern
had protested to the city of Durham
against the occupation by it of Petit
grew street and had asserted its own
ership of the same.
Judge PEBBLES: when was TINS
done?"
Major Guthrie: 1.-THE affidavit says
several years ago. as matter of fact.
it was in 1894 or 1885,
The affidavit then continued to
state under advice that under the de-
cisions of the State courts, no statute
of limitations could be enforced
against the right of way of a railroad;
that he had given the orders for Mr..
Copeland to lay the tracks in dispute;
that he did so because he was advised
that the Southern owned the street as
a right of way and because The adj
ditional tracks were needed.
The decision of the Circuit Court
was also appended to Col. Andrews
affidavit and Major Guthrie started to
read it, but was stopped by the judge,
who had heard it once already. Major
Guthrie real the salient parts, how
ever, and laid stress upon its having
been consented to by the attorneys of
all parties, in interest, Messrs. Man
ming and Foushee, Boone, Bryant and
Biggs. Fuller q Fuller, w. Fl. Day and
+. II. BuSbee.
He then stated that he would read
another affidavit in reply to the con-
tention that the street had been grant
ed to the town by dedication by the
railroad, or that an easement had
been acquired by long user. This was
an affidavit of Col. Kenan as to evil
dence in an old suit between the city
and the Richmopd and Danville Rail-
road by Col. Andrews, then Superin-
tendent, and DR.. Durham, then mayor
of the city of Durham. This evidence
was to the effect that Col Andrews
had seen hands working on the right
of way which is now Petigrew street
and had called DR. Durham's atten-
ton to ii. DR. Durham had said that
he knew il was the railroad property,
out lHdL the FOdu ulu lOl Heeu IL otlu
the town would use the land in the
meantime. This was in the early sey-
entities.
A Consent Decree?
At this point Judge PEBBLES sprang
the thought which he had been turn
ing i'm his mind about the decree of the
Circuit Court:
Does that decree operate except as
deed inter parties" he asked.
Major Guthrie: 81 don't know
about that" at might become very
important matter replied Judge
PEBBLES, blinking through his glasses
with his whitening smile.
Il don't think" said he, that this
is a question that should be heard OH
it's merits at this time. This is not
a common but a special Injunction.
When the relief sought consists in the
injunction itself, the rule in a court
of equity. is to continue the injunction
to the hearing"
Enough to Tussle Over.
At this point counsel for the railroad
lodged the intimation of the judge by
offering in evidence a certified copy of
the petition to the Corporation Com
mission. asking it to assess damages
for running Carr street across the
right of way of the railroad, which
was OIeG6u WIFI Il view OF showing
that the city, by seeking to condemn
the right of way, had admitted that il
did not own it. 1t was Mr.. Busbee
who proposed this point. but Judge
PEBBLES was in no humor for it.
We've got enough to tussle with
without bringing in collateral mat
ters,'' he observed.
Mr.. Busbee persisted al some little
length, finally reading section of the
petition, which was the portion of the
paper on which the defendant relied.
A We'll of Israel.
For ten minutes or more there had
been waited in from the depths OF
the building a kind of periodic wall
such as one of the older poets might
have set to the music rising from the
rim of the inferno.
whats the noise?" demanded
Judge PEBBLES.
"It's a little Jew boy arrested for
stealing" explained Judge Winston;
"the chief of police is trying TO stop
him."
Bring him up here if he don't