The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1908-10-05
Attorneys for Both Plaintiff
And Defendant in HiII-T. H.,
!. & E. Case Claim a Vic
tory.
ORIGINAL COMPLAINT
DOES NOT SHOW ENOUGH
Answer of the Defendant Is
Ruled Good-Case, With
PreIiminaries Out, Is Ready
For Trial.

An interpreter is needed to explain
the ruling made by Judge Macy, of the
Randolph circuit court, in the case OF
George w. Hill VS.. the Terre Haute, In
dianapolis and Eastern Traction com.
pany. Wilfred Jessup and A. M. Gard
ner, attorneys for the plaintiff, claim
the ruling of the court favors the plain
tiff. John F. Robbins, local counsel
for the defendant company, says the
ruling is in favor of the defendant The
opinion was rendered on the second
paragraph of the answer of the defend
ant to the complaint. The court holds
the original complaint does not show
sufficient specie injury to property. AT
the same time the statutory proof of
this condition is not required, says the
court. In the third place the court has
ruled the answer of the defendant is
good.
Culled down, the opinion of the
court breaks about even between the
lingants. On the incidental power spe-
Gifted, the court rules for the defendant
and upon the statutory claim in favor
of the plaintiff. With the preliminaries
now disposed of the case stands ready
for trial.
Hill brought-suit to enjoin the trac-
tion company from constructing a
freight line on North Twenty-third
street. The line passes directly
through Glen Miller park. Hill owns a
residence property located at Main and
twenty-third streets, directly opposite
to where the proposed track would en-
ter the park from the south. He averr-
ed the board Of public works of the city
of Richmond had no power to grant the
company the right to make use of
Twenty-third street, and alleged furth-
er his property had been damaged in
value as the result of the construction
work. which has progressed to the COM
pletion Of the grading.
In regard to the alleged damage to
his property, the defense claimed Hill
knew about the proposed construction
of the line and delayed for three
months before undertaking any action.
The court recognized the validity of
this contention, but at the same time
declared it unnecessary for the plaintiff
to show specific injury to property.
In regard to the right of the board Of
works to grant to the defendant COM
pany the right to make use of the
street for it's traction line, the court
holds 1t has the right when the traction
line terminates in the city, but would
deny the right, if the line merely pass
ed through the park and did not tend
to add to the accessibility for the gen.
eral public
The court says: 1T is the opinion
of the court that there may be a case
where the city would be authorized,
by virtue of incidental and implied au-
thority, conferred upon it's board of
public works, to grant a right of way
to a street or interurban railway cor
poratlon into or even across it's
grounds, where such construction
would not mar its beauty and utility
as public park and it's operation
ment. While, in another case, where
its construction would mar it's beauty
and interfere with it's utility and
where its operation tends to destroy
the use and enjoyment of the park,
such implied authority would be want
ing, and, therefore, that there may be
thus presented a case for judicial in
vestigation and consideration. Let it
clearly be understood that I do not
mean by this, that such judicial inves-
tigation may be had to determine up-
on the wisdom or expedienecy of such
an act, but for determining from the
nature of the proposed act, whether
or not such board has the power to
act at all.
The complaint in this case alleges
that in constructing the railroad
the park it is necessary for
the defendant to make a deep cut
throughout almost the entire length
thereof, said cut from two to eight
feet deep, and will not be at grade at
but one point; that its construction
will interfere with and obstruct the
free passage in and about the park
and interfere with its ordinary use;
that it will be dangerous for persons
on foot to cross on account of steep
high banks, and that the company is
to slope back the sides of
said cut, digging and removing the soil
therefrom and that in SO doing they
will necessarily destroy many shade
trees along the banks of said cut,
thereby marring the beauty and the
usefulness of the park. The demurrer
admits the truth of these allegations"
The court says further: We now
come to the proposition of the right