Daily capital journal. (Salem, Oregon) 1903-1919, 1905-02-17

W w. ~ h1s uotlSt 70 pAAlhtlu Apfll Z,
1903.
Therefore, in consideration of all
the testimony and the law in the case
the court orders the injunction to be
made permanent, and decrees possession
of the hops to plaintiff under the con-
tract.
As to intervenes, Simmonds & Son
the court held that their advances Sc.
cured by mortgage or purchase were
made with the full knowledge of the
prior claim of Livesley & Co., and that
they did so at their own risk, as the
contract was of record in the county
recorders Office of Marion county, Ore
gon, and held that their lien being sec.
ondary, they were decreed all in excess
of 10000 pounds, covered by Lives
ley's contract of the 1904 crop, togeth-
er with tho purchase price of 91s cents
per pound, to be paid by Livesley, or
so much thereof as to satisfy their
claim under their secondary mortgage
Attorneys for defendant gave notice
of appeal to the supreme court.
In the case of j. Wolford, et al, VS..
A. w. Fisher, as executor, etc, the
court found for the defendant, the tenn
porary injunction was dissolved, and
the case dismissed, costs going to plain
tiff.
The court ruled in part: The de-
fendant is owner of the Silverton -four
ing mills of the capacity of 200 bar
rels, with three warehouses of 10000
bushels capacity, situated about one
fourth of a mile from the o. & c. rail
road, and connected Herewith by "a
switch, under the supervision of the
railroad, running along the center Of
Water street, which is the main thor.
oughfare of the City of Silverton.
This switch line plaintiff asked to be
deereed a public nuisance, and tenn
porary injunction be declared perma-
nent. The plaintiffs allege that the ex-
istence Of this switch drives business
away from business houses situated up
ON Water street, interferes with travel,
and renders the same dangerous. They
further allege that this is a private
railroad for the benefit of the mill com
pany, and not common carrier for the
use of the public,
The defendants allege that this road
is a switch of the o. & c. railroad,
built in 1881 by the Oregonian Railroad
Company, of which the o. & c. are sue
cessors, admitting that plaintiffs pre-
deeessors, Skate Bros. assisted in the
building of the switch, by making a
subscription of $1,000, and that they,
the Mill company, have ever since as
sisted in keeping the track in repair,
but that the railroad company is the
owner of said road, and operates the
some.
The court finds that, as a matter of
fact, this switch was built under a
grant by the county court of Marion
county. Water Street then being a pub
lie highway, and later on, April IL,
1894, an ordinance was passed author
izing j. w. Cochran, who then owned
the mill, to lay down and operate n
railway track from the main line to
the mill along Water Street, said fran
chise to run ten years and, prior to
the expiration of said franchise, an or
dinance was duly passed extending the
franchise ten years additional, and
that said track is being and has been
maintained by authority of the City
of Silverton for more than ten years
preceding this suit.
When q city has given permission to
construct public railroad upon pub
lie street of that city, injunction will
not lie to restrain its construction or
operation.
Section 65 Of the charter of the City
of Silverton empowers the council to
regulate the laying of tracks for street
railroads. This authority vested in the
city council, given the council by the
Legislature, places the railroad under
tho sole management and regulation Of
the council, and is a political or legis-
lative right, and not a judicial ques-
tion, and the right of the city council
is unrestricted, except it be in the mat
ter of compensation for damages.
The court further finds that this rail
road is used for the carrying Of freight
for others than the mill company, and
that in the year 1904 the mill in ques-
tiop has received and shipped out over
this road nearly 5000 tons of freight.
Hence, taking all the testimony into
consideration, and considering the law