Every evening, Wilmington daily commercial., 1906-03-21

Reference was made in yesterdays
issue Of Every Evening to an opinion
given to the Street and Sewer Department
by City Solicitor Townsend relative to
the Water street matter, IN which Mr..
Townsend suggested chat the city take
no action toward claiming rights in Water
street west of Orange, on the belief that
10 would result in a useless expenditure
of money.
The opinion was the outcome of letter
from Salisbury. Ponder & Curtis, counsel
for Daniel Bubenzer. in his suit against
the r. b. q w. Railroad Co., which letter
4 was sent to the Street and Sewer Depart
ment and referred 10y it to City Solicitor
Townsend. In reply, as a preface to his
opinion, Mr.. Townsend wrote the depart
] ment as follows.
Your communication Of February
| 18th, requesting my opinion on the sub
| lect matter of a letter addressed 20 you by
salisbury. Ponder d Curtis, solicitors for
Daniel Bubenzer, has been received.
81 have had several conferences with
the solicitors for Daniel Bubenzer and the
| solicitors for the railroad company. and
/ examined much of the evidence and the
exhibits IN the various proceedings before
/ the Chancellor in the numerous, actions
/
railroad company from building its ele-
waited structure.
In these cases numerous questions
were presented with which the city OF
Wilmington has nothing to do, as they
concern private rights; and l have there
| fore not considered either the evidential
facts bearing thereon or the law relating
to such private rights, such as a private
right of way.
"Ihe only question ! have considered
| is whether the railroad company is using
/ any of the streets of Wilmington without
| lawful authority. or whether it occupies
any part OF public street or highway
west of Orange street in this city except
by virtue of authority granted.
Referring FIRST to the letter from the
solicitors for Daniel Bubenzer, and the
reference therein made to the letter oi
James Wilson, city engineer, and to the
statement as TO the remarks of Christian
Febiger. / would state that / have ex
amined fully both the letter OF Jame
Wilson and the proceedings Of Council
during the years ~ to "a, inclusive
both in the minutes of Council and con
temporaneous reports thereof published
in the newspapers of the city OF Whining
ton.
while both Mr. Wilson and Mr.. Febi
ger stated that Water street is nov
existing as a street Of the city. neithe
Of them stated definitely the termini O
Water street; nor can anything be draw
from their statements that such stree
existed where the elevated structure
erected or about TO be erected.
'There is evidence in the various pre-
ceedings in the Court Of Chancery to tn
effect that the railroad company OWL
the land where their tracks have bee
laid for years, from Orange street to
i point west of Justison street, and it doe
not appear that this land has ever bee
! dedicated as a public street.
Further than this Except as note
in the paragraph below, l can find n
evidence that the city ever acquired an
Of this land for Water street or any othe
public street where the elevated struC
ture is erected or proposed to be erected
according TO the map attached TO th
resolution of your board authorizing Oh
elevated structure. either by purchase
condemnation or otherwise.
"The city has practically recognize
that the railroad company owns the Ian
where its tracks are laid west of Orane
] street from the fact that in condomnatio