The Montgomery advertiser., 1905-07-13
TRACTION COMPANY MUST
 REMOVE TRACKS FROM PARK

pute. for park purposes and. a pleasure resort. for the term of twenty years, to Francis F. Ayers. The lease, pro- ns .ss ans that S.k the ana and pleasure resort; that Ayers might cut down certain descriptions of timber for beautifying the land for park pur- long to the walkers. who should have purpose of removing. the timber so cut down. and all dead timber, and that, at made upon the land are to become the property of the les1ors. Ayers bound himself to pay four hundred and five n of ns fanre m rent so pna undertakings under the lease, that 1t should be forfeited on ten days no- tice. in which event the property and the Walkers. The sixth and fast clause in this indenture states: Moth ing in this lease shall be so construed as to prevent the parties of the first deed or lease through any part of said leased land, for street railway pur- poses" On the 2Sth of February. 1901. ated the town of Bloemfontaine, which took these lands within the corporate limits. providing for the election of the usual town officers, and conferring g ell.
 At the date Of this incorporation, the inhabitants of the territory 70 s ar Wsrs yerg feT in tion was had mainly to give better po- lice protection to those who might re- sort to the park, which was then in view to obtaining the favor of the To- cal authorities, in a liberal execution of the laws. regulating the amuse- ments expected to be carried on at the town was ever plated. Its streets have through the woods. A franchise had stree street railroad to Pickett Springs. Hn !. which was in a similar situation as to fontaine Pickett Springs was inoor- reasons which induced the incorpora- ton of the other town. The leased distant about three miles from the City of Montsomery, adjoining the Line Creek or Mount Meigs Road, and were Sasyed %syedr. out wb,os of body of land of the then leading to the park were the or dinary county roads. At that time. cry was In actual existence. and 1t had Tor years been operated with electric fly. It ran through the streets of Montgomery, and then into different try, in territory which afterwards be- came the town of Highland Park, and was afterWards incorporated into the ey ever did not psseh wsn s track & how 7; the leased premises. The value of the leased premises to Ayers and his abil- lty to make profit out of the enter price. depended upon the patronage se- cured by the park. The volume of this patronage would depend largely upon the cheapness, speed and comfort of the means me 11, of access to 1t by the people of lation., of necessity, was practically the only source from which patrons of the park could be expected. In the Railway i,a Company. domestic corpors. lease. On the 16fh of May, iso4, Walk CT and wife signed a writing, which, lands which had been leased to Ayers to the Montgomery Street Raii, iH CTS did not give the right to remove timber larger than four inches in di- amater, they agreed that in building the ci park, s,th the Lessee lessee or his assigns might for a driveway and walk, or for the erection of buildings and amusement devices. On the 11th day of May, 1904.
 
 premises for a period of ten years, with the privilege of renewal of the lease ten years more, to the Amusement Company which entered upon the land. fenced on some ten acres of it, beau tifed 1t as park, laid out walks and flower beds, erected water works and laid water mains, lighted 1t with cleo tricity, erected pavilions and other lake thereon, expending large sums of money for these purposes.
 On the filing of the bill. a restrain ing order was isued, and notice served to, 10 show cause, etc: The defendant filed both sides, as to an estoppel the an- swer sought to visit upon the complain ant. The case Is now submitted on nili, ;,on answer, sUr and afidavits; upon the motion Tor preliminary Injunction.
 Jones. District Judge
 The facts, save as to the alleged estoppel are without dispute, and of many things not stated in the record. a take judicial notice. The need need for speedy action on the motion, and the pressure of other litigation. prevents full discussion of the able and elabor- ate arguments of counsel. The Amuse- ment Company insists upon its right to enjoin the defendant. on various grounds which, for convenience of dis cussion. have been grouped under diff ferent heads.
 1. It is objected that the power re- served in the lease to grant a right of way for street railroad purposes had been exhausted before Walker. and wife made the deed to the Traction Com pany. This result is claimed because Walker and wife acquiesced in and consented to prior entry into the park of the Montgomery Street Railway