Evening journal., 1905-07-11

Chancellor Nicholson. in the Court of
channcery today granted preliminary
Injunction against the Philadelphia, Baiti
more and Washington Radlroad Company
and in favor of Daniel Buoenzer prevent
ing the railroad from taking two of the
complainants properties im this city in
the construction Of its elev ated line. The
opinion is highly important Ninasmueh as
= will probably prevent the completion
I the elevated road in Wilmington. This
Inc, which was planned to cost several
4nnlion dollars. is now partially built.
/ The case is well-known, it having been
before the Chancellor for sometime. Bu-
benzer owns three properties facing on
Water street, beginning at West street
and running west He took action against
the railroad on the ground that the re-
spondent "has no right to take for its
use. or destroy. or pass through any out
buildings of the complainant of the value
Of three hundred dollars without his con-
sent, by reason Of the provision in the
original charter Of The Wilmington and
Susquehanna Railroad Company, which
provides that it shall not pass through
any burying ground or place of public
worship, nor any dwelling house without
the consent of the owner thereof, nor
shall it pass through any outbuildings Of
the value Of three hundred dollars with
out such consent"
ELEVATED ROAD UNAUTHORIZED.
The Chancellor declares that there is
~ not a word in our statute books about
u the elevation of railroads or about elevat-
4 ed railroads In this respect they are
tabuia rosa, and the right of the respond
ent so FAR as the elevation Of its tracks
1 is concerned. rests simply upon its orig
inal charter. unmodihed by any legisla-
tlon."
The opinion covers AZ typewriter pages
and Il took the Chancellor an hour to reac
it in court. Willard salisbury, Esq. cnun
I sci for Mr. Bubenzer was present as was
. so John T. Neary. Esq. representing
-saiiFcad company. AIr. Saulsburl
will fl. is expected. soon ask to hav'
! the injunction made permanent
VI After stating that he first granted a re
n straining order in the case on January
a IT, 1904. Chancellor Nicholson goes int
4 tbc action in detail and gives the grounds
upon which the complainant asks for tn
Injunction He continues:
IN BILL OF COMELAlNI.
.The amended bill Of complaint. afte
describing the property of complainant
4 and the right of way claimed by hir
across the respondents right Of way, al
N icgcs that the F.. b. * W. Railroad Com
pany. the respondent. which is the success
sor OF the p. W. 4 3. Railroad Compan
which in turn was the successor of tn
II Wilmington and Susquehanna Railroa
Company and has for many years oper
ated its railroad along the southeastern
boundary Of the property described in tn
II bill. has appropriated or condemned fo
N its use a strip Of land approxRmating fift
M foci in width along the northerly side q
nj Water street and northerly thereof froI
u iis said station at Front. French an
Water streets. westwardly TO said Yves
street which is the easterly boundary
4 complainanrs property called tract n,
NJ 1. over which it threatens to construS
a a nelevated viaduct 10 connect its eret
tions eastwardly of said West street wit
orec;ions it is now constructing ives
wardly OF said street and westwardly
conplairants said premises; thus NAL
N Ing continuous elevated viaduct chief
Of masonry. dsnnected over intersectir
streets Of said city on steel sirders ,
bridges. from IL said station along an
N upon Water stret Naforcsaid and upon II
southcrly and Sd ,heasterly line of Il
MI compliments said premises. where it
u about II erect 81 iilar structure"
Tho elevation Of the tracks upon sol
wails OF masonry is alleged to be illeg
and unauthorized. as is also the conter
plated bridging of the streets. and Il
complainant alleges that such use OF "tl
strip aforesaid and its own present rig
II of way on Water street south OF and "A
n Joining tho lands of complainant wou
he for purpose wholly and entirely III
ferent from that authorized by and und
IT'S charter or any Act OF Assembly
WATER STREET AS a HIGHWAY
Tho Chancellor then, says:
at was hold by me when 1 granted I
prellmlnary injunction already issued tn
81 tho complainant; had failed 10 susta
s. his contention that the land south of
premises is an extension of Water strC
B and therefore public highway.
Il IN its answer 90 the original bill I
81 respondent expressly denies that Wat
4 street in the city of Wilmington fori
the southerly boundary Of any of {
4 tracts Of land in said bill of complai
~ lmontioned and described. or was adjace
~ 10 or near any Of said tracts of Ian
III and since the granting Of the said pi
(y nm:nary injunction above referred
the complainant has introduced no n
evidence 10 lead me 10 altar or mod
my decision that this land southerly
M his promises. upon which IS the respor
! ont's right Of way. is not shown to be
HI oeStons.on OF Water street and therefore
H.. public highway
In the answer to the amended l
M hlod June 1 last past. respondent furtl
III expressly denies that 1t intends TO
nroprinte absolutely 10 its exclusive l
III tho bed Of Water street or the bed
West street; and in respect TO the ori
~ nql right Of way above described.
respondent alleges IN his answer TO
ri! aFnendsd bill that the condemnation ,