Evening journal., 1905-07-11
CHANCELLOR NICHOLSON GRANTS
INJUNCTION AGAINST elevated
ROAD OF P, B. & W. COMPANY
DANIEL BUBENZER WINS HIS CASE-EN LENGTHY OPINION THE
CHANCELLOR QUESTIONS The RAILROAD COMPANY'S RIGHT
TO BUILD AN OVERHEAD LNE-DECISON MAY
PREVENT THE CONSTRUCTION
structures or work were improvements
AGAINST THE RAILROAD.

structures or work were improvements. "
AGAINST THE RAILROAD.
Regarding the contention Of the COM
plainant that the respondent has no auth
ority to widen its roadbed at the points
in question, having already reached the
extreme width authorized by the act un-
der which 1t was created the Chancellor
quotes the provision Of the cnarter Of the
Wilmington and Susquehanna Railroad
Company which says:
And the said road shall not be more
than five rods wide"
The Chancellor says that the conclusion
to his mind, seems Irresistible that 'al-
though as stated above, the railroad re-
spondent is expressly relieved by the pro-
visions contained in section 50 Of the Gem
eral Incorporation Act from the limita-
tion Of the width of its roadway con-
tained in the charter Of the Wilmington
and Susquehanna Railroad Company, yet
there is no provision repeating or other
wise affecting the restriction expressly
J imposed by the charter Of the Whining
ton and susquehanna Railroad Company
to which the respondent is expressly
made subject by section 81 Of the Cen
! eral Incorporation Act viz, hat ii shall
not pass through any burying ground or
place of public worship. nor any dwell
/ ing house without the consent of the own
er thereof. nor shall it pass through any
outbuilding Of the value Of three hundred
dollars without such consent.
This plain unequivocal prohibition ap-
plies to the railroad company respondent
under all circumstances and is limita-
tion Of its right Of eminent domain when
ever and wherever 1t seeks to exercise it.
in the abserce of language repeating OF
changing IL. Even # it should be con-
ceded that an ambiguity exists that a
doubt is created by the language of the
widening clause then the settled rules
Of construction would compel this couri
TO resolve the doubt against the corpora
ton. inasmuoh as there can be no am
higuity about grants TO corporations
OLD swEDEs REFERRk-. TO.
The opinion concludes;
Were the question on the one hand
simply the preservation from con-
ldenmnation of a few outbuildings and
on the other hand the freeing of a
great system of transportation from
the necessity of gaining the consent
of the owners of outbuildings before il
would make important and desirable
improvements. in its line, can con-
ceive that a court might be industrious
in the pursuit of reasons in favor of an
5 extension of the right of eminent do
main. Such is not the case, however;
} for the same limitation that protects
, the outbuildings from seizure and also
= dwelling houses, protects as we'll any
, burying ground or place of public wOr-
I ship.
IF it be permissible. then, in looking
Z for the intent of the Legislature, to as.
I sumo that it had in mind the physica
conditions and surroundings of the
great trunk lines of railroads in III,
State. as is assumed by the Pennsyl.
vania court in the Dryden case. il
must also be assumed that it was full
lly cognizant of the fact that the mos
venerable and venerated place OF wor
r ship within the limits of this State
r the Old Swedes Church"-stand
alongside the line Of the railroad re
spondent; that its burying ground. 81
long the resting place of Delaware'
IaieAAf - hINIA hAAAANuN WIN AAA~ ANeNRAAA
ents right of way. separated only b,
u a wall of masonry.
+ The remaining contention Of tn
n complainant relates to irregularitie
r and defects which he alleges to exis
,e in the condemnation proceedings
l. based upon ahidavits and exhibit
e which are met by counter affidavit
l. and exhibits on the part of the
II spondent. In view of the fact that m
10 decision in favor of the foregoing con
!, ltention. will sustain the motion for
y preliminary injunction as to lots Nos.
and 3. which have been shown to hay
~ erected upon them outbuildings of tn
value of three hundred dollars eacl
10 and that each complainants accept
rs ance Of the damages rendered for I,
Id No. 1. together with my adverse deci:
n ion upon his first contention. entails II
rs denial of the motion for an injunctio
D." as to lot No. 1. deem it necessary
IS take into consideration these detaile
Of objections to the condemnation pre-
N ceedings.
q. "The motion for a preliminary ir
Is junction therefore il granted as to lot
,e Nos. and 8, and denied as to lot N
10 1.
70 LET the order be entered accord
es ingly."