Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1905-08-29
Makely VS.. Southern Railwa!

Makely VS.. southern hallway
Judge Nicol, of the Circuit Court Of
Alexandra city, yesterday handed down
the following opinion in the case of Mrs.
CALerine Makely VS.. the Southern Rail
way Company. The plaintiff claims that
her property on the west side OF Henry
street, between Wolfe and Wilkes, mas
been injured by smoke from the round
house and other buildings and locomo'
tives of the defendant company; =.
Catherine Makely In the Circuit
Southern Railway Co. dria city, Va.
On an application for an injunction.
Having considered the bill OF com
plainant and the answer OF defendant
thereto. and the afidavis and exhibits
Herewith filed of both complainant and
defendant, and the arguments OF coIin-
sci both oral and written, submitted ID
behalf of the parties, ! am of opinion as
follows:
That the defendant, as against COM
plainant. is entitled by prescription to
have and maintain its tracks IN, along
and mon that portion of Wolfe street,
between Henry and Fayctte streets, ID
Alexandria city, and to use SAID tracks
in the ordinary, usual and proper con-
duct of IT'S business, but not to park or
stand its engines thereon for the purpose
of cleansing the same, or to make said
NORTON of Wolfe street yard for the
assembling and standing thereon OF It's
engines to the injury, annoyance and
damage of complainant and her property
. That by reason Of the suit OF Got
,ieb Appich Through whom the title oil
complainant is derived vs.. the Orange
and Alexandria Railroad Company (the
predecessor in title of the DEFENDANT the
complainant is estopped to claim dam,
ages from the defendant by reason Of
maintaining its tracks on said streets
its round house and engine-house for the
generation of electricity so long as the
defendant conducts its business and
cnerations in a lawful and proper man
Der but complainant is not estopped
from claiming damage or other appro-
pirate relief for any illegal or Negligent
use of said streets, or illegal and negll'
gent operaton of its said rOnnd-house
and engine-house for the generation Of
electricity.
8. That the defendant has erected III
round-house, engine house for the gene.
rotiou of electricity and its tracks on said
norton Of Wolfe street by authority Of
law and is entitled to operate the same
in a lawful and proper manner, even
slough il annoys the complainant and
impairs the value Of her proPerl!
Fisher Va S. A. L. Railway Co., lO2 va
863( but that complainant Is entitled U
the use and enjoyment Of her property
without moleststion or injury from tn
defendant, except so far as complainant
and her property is necessarily neon
wenienced and injured, by the lawful
,roner and necessary operations OF IN
defendant to discharge its chatter obiiga
tions to the public, but AS to all eXceS
of such lawful, proper and necessary us
and operation, the complainant Is t"
titled to relief
4. That whether or not the delehdan
has been guilty of negligence in It's opei
atoms of which complaint is made, 1t
impossible to say from the evidence
this case consisting mainly OF aflldayi's
and as negligence is question OF iac'
that the same ought to be tried by a Jur
on proper issues framed wide Reed vs.
Edna Cotton Mills, 1876, n. Z. az
Same case, 81 l.. r. A. 9S3 and not
and authorities), and at the proper time
.on application of complainant, deere
m this court will be entered to etfectua'
This purpose, but that until that issu
hss been tried and found in favor OF con
plainant the injunction prayed +
should be refused, and is accordingly r
fused but as this is an original apple
ton for an injunction, which is refuse
the application can now be made on Il
original papers, directly to the oupren
Court of Appeals of Virginia, wi'ho
having the record in this case COPE
(section 943S, of Virginia code).
c. f. NICoL, Judge,
Manassas. Va. August 25, 1905.