Daily capital journal. (Salem, Oregon) 1903-1919, 1911-10-03
Ford '. 0. E. Rr. Co.,. Marion County

| circuit court lOT mdIlOu COuuty' luS
Hon. VIM. Galloway, Judge Argued
and submitted July %, 1911. Kaiser
& Pogue, attorneys for respondent.
Harrison Allen and John H. McNary,
(Carey G. Kerr on the brief), attor-
neys for appellant. Bean, ]. Re-
versed.
Decided September 26, 1911.
This is a suit in equity. The de-
fendant, an electric railway corpora
| ton, appeals from a decree requiring
1t to stop its local trains for the ac-
commodation OF passenger at a road
crossing near the house on the land
Of plaintiff, in performance of a con-
tract, executed August 25, 1906, by
Tilmon Ford, accepted by defendant,
and duly recorded, the material parts
Of which, emitting description of the
land, is as follows:
Know all men by these presents,
| L udI lllluOu rOlui uhlhdl llSuJ VI bhS
county of Marion in the state of Ore
gon, in consideration of the sum of
six hundred dollars and other good
and valuable considerations herein
after expressed, to him paid by the
Oregon Electric Railway Company =
the receipt whereof is hereby
acknowledged as to said money, and
the other considerations hereinafter
expressed has granted, bargained
sold and conveyed" etc.
"a right-of-way for it's railroad. q"
Several covenants are then in
serted in said deed as to fencing the
right of way and building cattle
guards and road crossings, as to
said grantee its successors and as
signs, and then the followingO
Said grantee, its successors and
assigns, in operating said railway,
shall stop its local trains for the pur-
pose of taking on or putting off pas
sengers at the road crossing easterly
from where the house now stands on
said premises, together with all and
singular the tenements, heredfta-
ments, or appurtenances thereunto
belonging, or in any wise appertain-
ing, subject to the terms and condi-
tions of said conveyance"
1t appears that after the execution
of the right-of-way deed, the defen-
dant the Oregon Electric Railway
Company, constructed it's railroad
from Portland to Salem, over which
1t has been operating its trains since
January 1, 1908. The farm of plain
tiff, Frank Ford contains 22O acres,
upon which there is situated the
farm house mentioned and other
buildings, eight-tenths of mile
from Chemawa station on the south,
and one and four-tenths miles from
Quinaby station on the north. The
crossing in question is situated near
the center of the 220 acre tract, and
it is asserted by plaintiff that about
40 or so people would be better ac-
commodated with station at that
location. 1t appears that the wagon
road crossed by defendants electric
line is private roadway; that the
plaintiff desires to cut up and sell
his land in five-acre tracts, concern
ing which facts, in answer to the
question: in order to allow the pub
lie to use your crossing, you would
have to give your permission to go
across your land and lay out a road.
If the train would stop, you would
either have to let the people come
across your place or lay out a road?'
the plaintiff replied Yes sir Plain
tiff demanded of defendant that its
trains be stopped according to its
contract, and contends that he is en-
titled to have the contract specihcal-
ly enforced as his only adequate
remedy.
On behalf of defendant it is as
serted that there are about % people
residing within one-half mile of the
proposed station; that from four to
six local trains stop at all of the sta
tions on the road, making 80 stops,
the schedule time for the run be-
tween Portland and Salem being two
hours, Two other through or special
trains make the run in one hour and
40 minutes, covering the distance be-
tween Chemawa and Quinaby sta
tions in four minutes that the pas
senger business handled in and out
Of Chemawa and Quinaby between
June Sth and November S0th, 1908,
was, for the former station, 1912, an
average of about 70 passengers per
day, and for the latter $50, a daily
average Of four passengers. The to-
tai number of passengers for this
period passing Chemawa and Quin-
ably both north and south, exclusive
OF those moving in and out of such
stations, was 66,SOO, making the dali
ly average OF passengers passing
these stations about $50; that the es-
Establishment and. maintenance Of an