Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1911-03-23
or SUIT
To ELIMINATE
GRADE
Assistant Attorney=G General SUBJ
mits History of Litigation to
East Orange Counsel. :

That East Orange Is taking up IN
earnest The removal of grade crossings
is evident by the action in calling upo
the encouragement to give the his
tory, progress and present status of he
suit brought against the Lackawanna
railroad to eliminate the dangerous
Junction crossing at Arlington ave.
nue. and Main street. The assistant
encouragement, however, cannot fore
cast a successful result. .
The reply to City Counsel Borden D
Writings letter by the assistant reads:
THE encouragement was requested
by the Board of Railroad Commissions
ers to institute proceedings to compel
the elimination of grade crossings re-
ferred to in the City of East Orange, q
grade crossing in Railway. a grade
crossing in Elizabeth, the basis OF
which suit was the charter obligation
TO provide suitable means of crossing
for passengers and vehicles under the
of the chancellor in the Eliza
beth case to the effect that This duty
a continuing duty and had refer
ence constantly to existing conditions.
Bills were prepared in each of these
cases, which in due course were met by
demurrers. Agreement was entered into
with the several counsel by which the
Railway case against the Pennsyl-
vania Railroad Company was to be
made a test case. The demurrer filed
by counsel for the Pennsylvania rail-
road was made the subject of a motion
to strike out several of the parts and
to dismiss the whole for reasons as
signed. On argument before Vice.
Chancellor Walker the motion was
granted. A. writ of error was taken
and the decree of the Court of Cham
Gerry was reversed by the Court OF Err
rors and Appeals. The case Is now
awaiting argument, then, upon h
original demurrer first filed. This de-
murrer raises an ultimate contention
as to the equities of the bill o. to the
right of the court to enforce a decree
against the railroad company without
the joinder Of the municipality in
which the grade crossing is In fact To-
Gated"
This argument has, as disclosed.
two principles, in view-1rst, that the
enforcement of the deere Of the court,
In the event that it should go against
the company, would be impossible
without the consent of the municipality
to the necessary alterations which
would accompany a change of grade,
and that, therefore, the city is a neces-
sary part in interest; and, second. that
if the municipality should be
made a party In interest, the court is
without jurisdiction either to place the
entire cost of making such grade
changes upon the railroad or by adjudi-
cation to determine a proportionate
thereof.
These propositions were a subject of
discussion between myself and
Mr.. McCarter, then encouragement,
at the time the bills were drafted, and
I believe l state his views fairly when
/ say that he concurred with me in the
belief that there was, to say the least.
great merit in these contentious, and
doubt as to the successful outcome of
litigation, particularly in view of
the fact that the altitude of the
municipalities in question was I'LL as
applicant for the move by the attorney
general that they could not properly be
made parties defendant"
You will recognize, of course, that
the litigation which has ensued thus far
has successfully covered a considerable
period of time, and / had hoped that
before these matters came up for argu-
on the demurrer some hange
would have been made in the situation
by legislation so that either a method
of arbitration between the municipality
and the railroad company could be pro-
vided, by which a proportionate d.
vision of the cost might be arrived at\
or the Court of Chancery might be
given clear jurisdiction over the sub.
ject matter. Z
"Such, at any rate, Ms the history
and the present status of this litigation.
My personal view, however, is that the
litigation in this matter will be pro-
tracted. because the railroad companies
will contest to This end, and 1 cannot
with any confidence forecast a sue
cessful result by reason of the PROPOSE
lions which ] have stated. Very truly
yours, NELSON B. GASKILL,
Assistant Acknowledgement"