The Richmond palladium and sun-telegram. [volume] (Richmond, Ind.) 1907-1939, 1911-07-08
Judge Fox Cannot See the Contention of County Com
missioners that II is Necessary, Expedent and
Proper for the Public Welfare, Safety and
Convenience" to Have Tracks Moved
COUNTY IS LATE IN FINDING VIOLATIONS
Court Says if Traction Company Openly and Notorious
ly Violated Its Franchise, in Respect to the Loca
ton of the Track and Condition of the Grade,
Then the County Is Equally Guilty.

sent. and not enforcing this relocation
Of the tracks for the remaining 15h
miles. are situations which the court
found hard to reconcile.
Sees No Oetrinent.
He can not. see from the facts
brought before him how the public sa-
fety and welfare suffer detriment by
widening the highway and leaving the
tracks thereon. as the space left for
the exclusive use OF the travelling pub
lie would be greater than before the
improvement was made.
He refers to Main street In this
city. picturing the conditions during
business hours when cars run freQu-
emily and vehicles and auto traffic is
at its height declaring that the use Of
the street for facilitating public travel
In the way Of convenient and rapid
transit is regarded AZ promoting the
public welfare and believes the same
is true OF interurban lines which are
laid on highways In rural districts.
He believes that ten persons travel In
interurhans to one in other modes Of
conveyance
The salient points Of the decision
are contained In the following extracts
from the decision:
Opinion Of the Court.
This Is an action for mandate
For the reason that this case Is Inn
portant the court has carefully con-
sidered and examined It. In order to
lrsessAf- the views Of the court under
Istandingly, 1t In proper In the begin
ming to outline the material allega-
tions of the complaint, which is chal-
lenged by demurrer.
After the Introductory allegations In
ally as follows:
That the reIator is the owner OF q
free turnpike road extending from the
city of Richmond westward through
Wayne County. known as the National
Road That it Is much used and trav-
eled. That heretofore. towit on the
second day of April, A. d. 1900. the
Board OF Commissioners granted to
one Perry j. Freeman and one John
NJ. Lontz. their successors and assigns.
right of way over. along and upon
the said National Road from the city
of Richmond westwardly through
Wayne County. for the purpose Of con-
structing, maintaining and operating a
railway line thereon to be operated by
electricity or other motive power,
steam excepted, for the purpose Of
carrying passengers, baggage. mail
and freight. and to erect and maintain
fo cfr nfot
wires over, along and upon the said
public highway from the west corpora
tion line Of said city to the west line
of Wayne Township in said county for
the purpose aforesaid. That on the
! date aforesaid the said Freeman and
Lontz, in writing, accepted said fran
chise and all the terms and conditions
thereof, which resolution and fran
chise. together with the written ac-
eeptance is set out in Commissioners
Record No. 25, beginning on pages II
and 81. That soon thereafter a cor
poration then existing under the laws
of this state known as the Richmond
Street and Interurban Railway Com
pany became the owner of said fran
chise and built and constructed an In
| terurban railway line from the west
corporation line OF Richmond west
wardly to the west boundary of Wayne
County by virtue OF said franchise and
as provided therein. That afterward
the defendant corporation herein be-
came and is now the owner of the said
franchise and OF the said internrban
railway line That 1t was expressly
provided in said franchise that the
rails to be used in construction might
be Trails and should not be lighter
than sixty pounds to the yard and
should be laid upon and along the
side of such National Road that the
commissioners and county surveyor
might designate. and should be SO laid
as to conform to the general grade
thereof and so that the top Of the rails
should be flush with the surface OF
1.-THE roadway and that the said track
should be SO laid that the inside rail
thereof, either on main track or turn
out. should be as far as practicable
from the middle of the road and in no
case to be nearer the said middle than
/ twelve feet without the special con-
sent of the Board of Commissioners.
That under and pursuant to the pro-
visions of said franchise. the said rail-
/ Continued on Page Eight