The Wheeling intelligencer. [volume] (Wheeling, W. Va.) 1903-1961, 1917-02-27
WHEELING. OHIO AND EASTERN
AGAIN WINS R|GHT-OF- WAY SUIT
JUDGE HERVEY AFFIRMS FORMER
DECISION IN RULING ON
RE-HEARlNG.
Wheeling Coal Road Second T ime
Loses In Effort to Block Local
Project-Case Decided
Yesterday.

Ing. UnlO X Eastern railroad III lis
suit against the Wheeling Coal rail
road for right TO condemn certain pro-
perry in Marshall county for rail
road right-of-way was handed down
Yesterday by Judge II. C.. Hervcy. This
opinion virtually confirms a former
ruling of the court in this case and
means in effect that the Wheeling Coal
railroad, composed Of employees OF the
PENNSYLVANIA road, can no longer in
lcrfere with the rights OF the Wheel,
ing, Ohio & Eastern, composed OF
Wheeling business men. Construction
of the Wheeling. Ohio & Eastern will
go forward Immediately, according TO
Secretary Thomas Swartz unless an
appeal TO the Supreme Court inter
fereS.
Attorneys ]. r. Sommnrrille and
James T. Miller. in asking for a re-
hearing of the suit III MOundsville a
few weeks ago. urged that Judge Her
yey was in error. first. in saying that
a definite certain location had not
been established by the Wheeling
Coal railroad on the John Moore farm
in Marshall county, near Viola, as or
June 10, 1916. and second. that the
conclusion 10 the effect that the plain
tiff company. the Wheeling, Ohio&
Eastern, had established a location on
June l is not sound as matter OF
law because at that date no board OF
directors Of the Wheeling, Ohio Il
Eastern had been chosen.
Confirms Former Finding.
Reviewing the testimony Of \. l..
Morgan. in reply TO the first PROPOSE
ton. Judge Heryey holds that in view
of uncontradictrd evidence he cannot
find that the Wheeling Coal roads To-
cations of June Is and October I are
substantially the same. and further
that he is not able TO find that a ecr-
tain and definite location of the Wheel
ing Coal roads line was made on June
IS. AS 10 the second claim Judge
Heryey holds that in acting before a
board Of directors was selected acted
for the corporation and not for them
selves.
Attorneys McCamic and Clark rep
resented the Wheeling, Ohio 4 East
ern in both proceedings.
Text Of the Decision.
Judge Hervey's Decision.
Wig. Ohio K Eastern Ry. Co.,
Wheeling Coal Co.
ON RchcarinE.
Counsel for the Coal Railway company
Hsk that ] change tn" conclusions at
which had arrived und assign two rea-
sons for 50 doing.
!. That / was i'll error in saying that
n definite certain location had not been
made by the Wheeling Coal Railway
company on the Moore property as or
June Il. 1916. and.
=. That the conclusion to the effect
that the plaintiff company. had cstah-
lishcd L location on June is not sound
as a matter Of law because At that date
no board Of directors Of the plaintiff
cplnnauS Ind hp,,D chosen
As to the first Of these contentious
my attention is called TO the evidence
Of y. l.. Morgan on page 45S TO the cf-
feet that the base lin" for the survey
had been completed before June -, and
II is said that III" location Of line then
made is within the one hundred feet linn
1t allowed by iaw, 10 be condemned for
railway purposes. II is also urged that
the "ridcnc" of Morgan is the only evil
dLncC III the record upon Ibis subject.
But there is no evidence in the record
upon this subject. hut there is no evil
dCnCc. in The record that I recall show
lnE that Morgan had any knowledge Of
The location nf the line on the Moore
farm. ON pages 22"2l he says that he
has been along practically all of this
lln"-that there may have been some
ll'"-that Their" may hav" been some few
docs not appear that h" has any per-
S"naI knowledge Uf tn" location of the
lin" on the Moore farm. or that he had
charge of The men in the field. Mr..
Jacobus on pages 5G&-d says that the
surveying of th" line Of Wheeling Coaf
rtmrany was not completed before
June -. and thai it was not finished
before the middle Of July.
AS Ia actual location of the lines
claimed by III" Wheeling Coal 60. have
no evidence except that of Mr. Juc0buS
This Witness compares The location Of
October 9TH and of June 18th. The evil
dcnr" on pag" $50 locates these lines on
different sides Of the creek. And on
rag" SOS Mr.. Jacohus tcStilies that;
crossing The creek. and running west
Whrdiy We come To the McCrcary and
Moore property the line on this plans,
exhibit No. Is. shows Il change to the
north Of about six hundred feet" This
is nearer the creek than the plan of
June L..
In view of this evidence which is not
c"nlradtcted l can not lind that the To-
cations Of June 18th and October Eth
ar" Silhsiantial.S the same. and am not
ADJ" |" iind that Il certain and definite
location nf Tn" Coal cOmpany's line WIS
mad" TN Junr II. 1916.
:. As 10 the second proposition.
l do not question the legal PROPOSE
TONS as To agency urged by counsel for
d"indant company. But the arguments
! proceeds upon the theory that if the
Stockholders acted aS the agents OF the
board OF directors os assumed to do so
md that when there VAS no lower 20
a. =" 'Hc III - IhStdH'c IL subsequent
r;tilhcltiol does not max" valid. But
The Stockholders. in acting before q
board was selected. acted for the cor
p"ratlon and nor Tor III" directors. for
The directors are themselves but the
agents "i the corporation and not tn.
corporation itself.
Al the time Of tn" meeting Of June LIST
the Wheeling. ohio X Eastern Co. was n
corporation. 1t had not then fully or
ganiZed by seluctinS a board of dirrc-
Tors. I'nt did that dIsuualify il from
taking any step or doing any net cS-