The evening star and Newark advertiser. [volume] (Newark, N.J.) 1907-1908, 1907-08-05
CURVED RAIL CASE
ICE -cHANCELLOR GIVES
REASONS FOR DECISION.
In Opinion Filed Today He Holds That
Works Board Does Not Possess the
Power to Take Summary Action.
Especial to the Evening star.l

TRENTON, Aug. 5.-An opinion filed
by Vices Chancellor Emery allows the
preliminary injunction applied for by
the North Jersey Street Railway Com
pany restraining the Street and Water
Commissioners of Newark from en-
forcing their resolution to compel the
railway company to remove its curved
tracks at Broad and Market streets.
On February % the resolution vas
adopted and the Mayor approved it on
March 1, on which date a copy was
served on the officers of the company.
1t ordered the removal of the tracks
within thirty days.
In the opinion the Vice-Chancellor
finds various grounds for prohibiting
summary action pending a ina deter
mination of the suit, and although
various questions are left undecided the
opinion of the Vice-Chancellor Is adj
verse to the contentious of the city.
The opinion holds, first. that the power
of the Street and Water Commissioners
over n~uisances does not extend to the re-
moval arbitrarily or until after trial In a
competent court of a structure such as
the tracks of a railway Company main
tanned in a public street under such a
claim OF right as was shown by the COM
plainants. 1t is admitted in the opinion,
as argued by counsel for the city, that
the company might apply by certiorari to
have the resolution of the board vacated
as having been made without notice or
hearing, but the court holds that the com
pany may, without waiting for such hear
ing, apply to the Court of Chancery TO
enJoin the removal of its tracks, pending
the trial of the right TO remove, either in
a court of equity or law.
The Vice. Chancellor shows that the
company's right to maintain the curved
connections Is derived from three sources.
The first of these is from the Orange and
Newark Horse Railroad Company, char
tered in 1859, and the Broad Street Railroad
Company. chartered In 1860. which were
consolidated by an act of 1858. The Vice
Chancellor says that his present view is
that the city cannot question the legality
of the connection thus established between
the two roads or its continued location.
Certainly, he adds, the question of its
right to do so at this late date is so open
to doubt that the company should be pro-
tected pending the final trial of the right
and the production of all the evidence
o~btainable as to the circumstance of the
original location.
The second source of authority, accord
ing to the present views of the court, is
by Legislative enactment subsequently
given by the charter of the Newark,
Bloomfield and Montclair Horse Car Com
pany, authorizing it ito connect with and
run over any horse car railroads running
through Newark to the Market street sta
tion."
The third source Of authority for main
tanning the curved rails is based. upon
the provisions of the traction act of 1898
AS his act is now under review before
the Court of Errors and Appeals and the
Vice-C Chancellor deems that the authority
conferred by the previous acts is sufficient
to sustain the case of the company the
latter ground is not discussed in the opin'
ion. He concludes by saying:
Whether the operation of complainant
cars over these curved rails has become {
nuisance, and whether this court has powe
the purpos of abating the nuisance t
public travel. which is alleged to hav
grown up. are entirely different questions
on which no opinion is intended to be eX
pressed.
The only question I can determine nov
is the right to maintain the curved raj
connection on the street at all for All!
purpose, however limited. AS to this
l think the company has shown a case o
right, If the case is 10 be decided upon tn,
facts now appearing, and I think there /
entities 1t 10 an Injunction restraining tn,
removal until the final determination of tn
right. | will advise the issuance of sucl
INJUNCTION. but before signing the ordet
Will hear any suggestion as TO the form Of
terms of the order"