The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1911-07-08
TRACTION CO. GIVEN
THE DECISION IN
FIRST SK|RM|SH
Continued from Page One)

II is further alleged that at many
points the said track was laid in vio-
lation OF the said franchise by being
constructed and laid so that the north
rail OF said track at said points was
much nearer the middle of said high
way than twelve feet. That this was
done and has been done SO maintained
without the special consent OF the
Board OF Commissioners. That the de-
PENDANT is now and has for several
years been the owner of said line OF
railway and has controlled and is now
controlling the same. That the defen-
dant Is now operating and has at all
times heretofore mentioned operated
said railway and moved its cars the
reon at a high and dangerous rate of
speed. which is attended with great
inconvenience and danger to the ira
yelling public by reason Of the fact
that the said railway is laid down and
operated near the center line of said
highway.
II Is further alleged that in the
spring OF 1911. upon proper petition
filed and presented, the Board of Com
missioners. as such Board, resolved
and determined that ii was necessary
expedient and proper for the public
welfare, safety and convenience, to
improve that portion of such public
highway being less than three miles
in length. lying between the west cor
poration line of the city Of Richmond
and the west line of Wayne Township,
in Wayne County. by grading the same
twenty-three feet in width on each
side OF the center line Of said highway
for the use of the general travelling
public and for that purpose entered
into contract with John 7. Cronin
and Lewis Hall in the name OF John T.
Cronin and Company. That the said
contractors thereafter desired to begin
work on the first day of March, and so
notified the sslid Board.
II is further alleged that the said
railway Ia so constructed along said
highway that ia south of the center
line thereof and nearer than twenty
three feet thereto SO that the same as
laid Ia within that portion of said high
way to be improved.
II Is further alleged that there is a
public necessity for the removal of
said railway track from that portion
of said highway to be improved to
some point within the limits of said
highway and outside of the line to be
so improved. That the 'relator has in
vestigated the needs of the public in
that behalf and In good faith has de-
cided that the public interests and
public travel and public safety re-
quires the removal of such railway
tracks to some point within the Ma
tional Road along the line Of such i'm
provement lying without the portion of
said highway to be improved and that
said improved portion of said highway
should be used only for public travel.
and the relator accordingly ordered
the removal of said track and directed
the Auditor to give the defendant no
tice to remove its said track to some
point in the said National Road out
side Of that portion of the read to be
SO graded and improved before the
Arst day OF March, 1911. That said no
tice was SO given early in February,
1911.
It Is further alleged that there is
ample room within the limits of said
highway outside of that portion to be
improved for the defendant to proper
ly and safely operate their said rail
way but that the defendant has failed
and refused so to do Wherefore the
relator prays that the defendant may
be required to remove its railway track
from that portion of the highway to
hn SvVN~ cd tn tI4r 1s,,. -: 4,
the limits of said highway.
In this age Of progress, street and
interurban railways as a means for
the right transit of passengers and
freight are'regarded as a convenient
necessity. They have the lawful right
to construct their lines across. along
and over public highways when au-
thorized so to do by the proper au.
thorities and when their lines are con-
structed they have the right to main.
tain and operate them in the usual and
ordinary manner within the limits of
their franchise and the public has a
right to use the highway for usual and
ordinary travel. A person who travels
along highway upon which a street
or interurban railway is laid must take
notice Of the rights of the said rail-
way therein while at the same time the
railway company must take notice of
the rights of the travelling public.
These rights are corelative The fact
that an interurban railway is built
along and over a public highway does
not limit or abridge the right of the
public to use such highway in the U.S.
ual and ordinary manner subject to
the right of the company to operate,
use and maintain its line of railway
In the usual and ordinary manner. The
railway company has the right of way
over It's line Of road in the transac.
ton of its business and the public has
right Of way over that portion of
said highway not legitimately used by
the railway company.
1t appears from the complaint that
In the year 1900 the Board of Commits
sioners granted n franchise to persons
by the name of Lontz and Freeman, as
individuals, and to their successors
and assigns, to construct and operate
an interurban railway from the city of
Richmond westward through Wayne
county. along and upon a highway