Evening journal., 1905-07-11

ceedings concerning all that portion Of
complainants property abutting upon the
respondents right Of way have destroyed
the easement and right of way alleged by
the complainant over the respondents
present right Of way. or the alleged bed
Of Water street. and that the destruction
Of said alleged easement or right Of
egress and ingress were considered by
damages for the condemnation Of said
property"
COAIPLAINANT's CONTENTIOUS.
The Chancellor then considers the COM
plainant's contentious and says;
IN the case presented to this court, the
facts, so far as they concern the question
now under consideration. appear. from
the pleadings. plots. afiidavits and ex-
hibits and the admission of counsel, to
be that a great trunk line railroad pass
! ing through the city of Wilmington de-
b sires 10 widen its right of way, and upon
hthat widened right of way to cross the
Aintersecting streets. which it now crosses
Vat grade, by Co quote from complain
bants bilD steel girders or bridges to be
CONSTRUCTED in accordance with the pro-
hvisions of certain city ordinances refer
ared 10 in the respondents answer; and
ifurther TO build between fhesS bridges
b(upon the widened right Of way) a mas
hsive stone structure Of the same height
as the bridges and upon this elevated
structure its tracks are TO be laid and its
trains run. instead of, as at present, on
| the same grade as the streets
"rhe complainant's contention, as shown
above, is the broad one that the right to
elevate its tracks and bridge the streets
in the city of Wilmington in any manner
is not included within the powers granted
lby the respondents charter OF by any sub.
sequent legislation. and that therefore II
attempting so TO do. it is acting ultra
wires, and has no power TO condem land
for what would be an illegal purpose
and he argues that such structures al
L those contemplated by the responder
railroad could never have been imagine'
by the legislators at the time its origina
charter was granted"
LIMITATIONS OF CHARTER
The decision Of the Court of Chancer!
in the Wilmington city Railway COMPANY
-Brandywine Springs Railway ComRan.
case in 10 is dwelt upon and the Chancel
lor continues:
Applying these fundamental princi
! pies to the facts of the present case, w
find that the charter of the Wilmington
and susquehanna Railroad Company /
similar to other railroad charters grante'
, at the same period, and authorized it &
, construct and locate a railroad; simpi
"a railroad The charter does not say sur
face railroad, nor until the last fey
i, years, when elevated passenger stree
. railways began TO be constructed and es
> pecially provided for by statue, did
!, ever seem TO have occurred to any cour
: or 10 any litigant TO suggest that rail
j, roads generally we're limited to the sur
I. face-were to be called surface railroads.
: The Chancellor says that railroads du
. tunnels or erected trestles high in tn
air. and thus left the surface Of tn
4 ground both in this country and in Ems
! land from the very beginning whenevC
h conditions commanded it.
+ NO INFERENCE FROM STATUTES
After further discussing the case an
citing authorities. the court states:
1T would assuredly be superhuous fC
: me 10 cite cases TO support the propos
= tion that any permanent structure q
the streets that would interfere with the
y unoSstructed use as a highway would !
an additional burden, and whether col
structed for the purpose of sustainir
= the tracks of an electric or steam raj
+, way would be a perversion Of the use
the streets that would be enjoined at Il
- suit of any abuttng owner. In New Yoi
u even when expressly authorized by Il
n Legislature, damages must be paid
= the abutting owners"
"a 1T may well be regretted" says Il
j Chancellor, that no such legislation h
sr been enacted Cnneaning the right to bui
an elevated line) in Delaware: but no /
ference can be drawn from those statut
to limit the powers 1 have indicated
1T is true that respondent
ne counsel contends that the provisiops
at section 50 of the General Incorporate,
in Law, adopted by our Legislature in is
us gave respondent the right TO elevate.
ct tracks In the manner prescribed. T.
language referred to makes it lawful
he straighten, widen. or otherwise impro
er the whole or portions of its line or lin
MS of railroad and the structures and a
he purtenances thereof, in such manner a,
Mt TO such extent as its board Of manage
mt may determine upon. whenever in I
d; opinion of such board the same may
g necessary for better securing the safe
70. Of persons and property and increasi
w the facilities and capacity for the trar
ty portation Of its traffic.
OF Il feel that it would be labor lost I
ID me to speculate upon what was in I
an legislative mind when it solemnly aut
a orized every railroad to otherwise 4
prove tho whole or portions Of its Ii
ill or lines OF railroad and the structui
ler and appurtenances thereof in such INA
p ner and TO such extent as it's board
lse managers may determine upon. Certain
of is. however. that structures or work II
81 was illegal and Unauthorized before Il
he enactment. could not be iegalized or a
he thorized by virtue of declaration Of
70 Board OF Railroad Dl<sasAss tsak ~