The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1917-01-27
WINS RIGHT OF WAY
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Continued from Pirst Page.)
ers' meeting June l. Engineer 1acobus
made report that he had staked out
line and made a location, which was
adopted as the route Of the Wheel
ing, Ohio 4 Eastern railroad. Sub
scqucntly, the board of directors APP
proved the ACT of the stockholders in
adopting the route. Il am OF the Opln-
ion" reads the decision. that the To-
cation made by the petitioner becomes
effective and operative from June J.,
1916"
The opinion cites thai the incorpor-
ators OF the Wheeling Coal Railroad.
on May Il, 1916, signed II waiver OF
notice of Il stockholders meeting to
be held the next day, at which meet
ing the coal company adopted as Il To-
cat ion for its road Il plan called NO.
S7l6 made by E. V. Sommerrille. from
Il plan of survey made by the Wheel
INK & Harrisburg Railway Company,
about 1882. But there is nothing In
evidence, Judge Hervey holds, show
ing that the line so surveyed became
q location of the Wheeling & Harris
vile. and he further holds that even If
il had been adopted and became To-
cation, il could not be used for anoth-
or CORPORATION that was not then IN
existence. The opinion declares that
even If the Wheeling Coal Company Is
allied with the Pennsylvania system. IT
does not step into the shoes OF the
Wheeling & Harrisburg line.
at may be true that The Wheel-
ing Coal Company could have To-
Gated Il road upon the same INES
as that indicated on The wheeling
e. Harrisburg map. but 10 do that
it would be necessary 10 make Il
romnletc location" the opinion
reads. "a location for the pur.
nose of this suit" II continues, SIS
not shown by map or route indl-
eating a line of railway up Biz
Wheeling Creek and through the
lands OF Moore and others"
Proceed To Condemn
With tho right TO condemn now eS-
rablished, The Wheeling Ohio and
Eastern is now free to institute con-
demnatIon proceedings against me
Moore farm and others, it was decia:-
I'd last night. The land in. question:
! is regarded as strategic POM IN lnr
route of the rival roads. Thc lana
was bought by the PennSylHahEi COM
pany, and tina: corporation VIII nov
he made party TO the condemnation
suit, it was said.
The text of Judge Hervcys decis-
ion follows:
Reduced 10 it's simplest terms. the
uuestion here submitted 10 the Court
AS presented by the pleadinSs is ms:
lis The location claimed by the plant
if valid and has it priority over thai
of the defendant company. MnSt ol
the rules which are 10 control IN
determining tho priority OF location
between rival railway companies are
settled in the case of c. 4 Q. Ry. 20.
Tvs. Deepwater Co., 81 West Va. oil,
and need not be reviewed here.
The facts upon which Inc petlllon
rests lis claim to valid locallon' SO
far as they are necessary 10 De mere
considered, may be summed up as
follows:
! The Panhandle Exploration Co. IN
corporated March >. 1916, was :organ-
lied BY those who were projecting
railway up Wheeling creek, for the
purpose of making a survey of line
railway for the railway company
which they expected 10 organize;
This EXPLORATORY company sustained
that relation to the Wheeling. ONO d
Eastern Co. which is often sustained
! by individuals who promote a railway
! company.
! "The work of survey was begun BY
the Panhandle Co. on March g. 1915,
and the line through the Moore farm
was surveyed and staked out on the
ground from The 9th 10 the 18th Of
I April Of that year.
THE Wheeling, Ohio & Eastern
Railway company was chartered on
Nav o2, 1916, and on May %. a notice
WAS given Of Il stockholders meeting
for June !. At the stockholders meet
ing held on the last named date a
report was made by JacObus. the en-
sineer in charge Of the survey, that
, he had staked out a line on the ground
and made a location which is described
by courses and distances. This re-
port was adopted by the corporatorSs
who were also all the stockholders OF
The company. The evidence OF JAG
obus shows that on exhibit a to the
petition, the line shown in white.
marked Center Line Of, Wheeling
Ohio and Eastern Railroad," Is the
line which is located upon the Moore
farm in April. Under the fifth rule IN
the G. & o. VS.. Deepwater Co., sur
;vey made by promoters OF a railway
| for its purposes before the company Is
organized may be adopted after the
incorporation Of the railway company.
! IIat Is WllHL Wis uOHt HV4t' .
at is urged that this adoption OF
The line by the stockholders did not
constitute Il location, AS the stock
holders were without authority 10 act
in that matter. While il is true thai
Sec. IS. CHI "a Of code provides that
;all corporate powers shall be vested
! in and authorized by the board OF dl-
rectors. this does not. in my view, pre-
went all the corporators acting FOL, the
corporation. from adopting the loca-
i ton OF line; and This is especially
true when the act of the Stockholders
is ratified and approved by the board
of directors.
Defendant Company Organized.
! "tf the board of directors had rcpuui-
! ai-d The action of the Stockholders ana
adopted some other location the situa-
ton would he quite different. 'ut ;tS
;hcy TITLED thc act Of ihr Stnckhoidc:s
! the lucHiinu of til" railroad should dat
| from June |. | am Of the opinion thai
the location madc 10y til" petitioner be-
| comes rircrtiv" AMI operative from
! June l. 1916. This being true. has th''
I Wheeling Coal rsha1 company presented
:. good defense by showing u prior VA Ii'l
| location upon the land which tho pctl-
1