Montgomery County sentinel. [volume] (Rockville, Md.) 1855-1974, 1929-07-12
Takofna Park Wins Point Id Action
Against Siding.

The question of the right to use narrow
strip OF land between the Baltimore & Ohio
Railroad siding and Takoma Avenue, at
North Takoma, this county, for the loading
and unloading of freight cars, which has
been pending in the Circuit Court here for
some months. is believed near to determi-
nation as a result Of a decision handed
down by Judge Robert B. Peter Saturday
of last week.
Following the enactment by the mayor
and council Of Takoma Park, something
like year ago, of an ordinance prohibiting
any person or corporation or its agents from
driving any vehicle over, upon or across
any public park of the town, an agent Of
the Baltimore & Ohio Railroad Co. was
arrested when he attempted to deliver q
load of coal from car on the siding by
driving trucks across the strip of land in
question, and at the instance of the railroad
company Judge Peter granted temporary
injunction restraining the town of Takoma
Park from prosecuting the company for an
alleged violation of the ordinance. The
injunction is still in force and the siding
is being used as it has been for many
years.
In the bill of complaint asking for an
injunction. the railroad company set forth
that the siding at North Takoma has been
used for loading and unloading freight cars
for more than 20 years; that it has been
a recognized point of consignment covered
by the tariffs promulgated by the COM
pany and approved by the United States
Interstate Commerce Commission and
subject to the rules Of the commission:
that at this point Takoma Avenue runs
parallel with the siding. and between the
avenue and siding is a strip Of ground
about 80 feet wide extending the entire
length Of the siding; that for more than
20 years this strip of land has been used
by the public for access to the siding that
after the passage Of the ordinance car
of coal was placed on the siding for con-
signee and that the arrest followed, as
stated. when an attempt was made to
unload II. ..
Demurrers were filed to the separate
defenses set up by the answer u the bill
OF complaint. and the decision rendered
by Judge Peter was on those demurrers.
The defenses demurred to were dedica-
ton Of the strip Of land to the town Of
Takoma Park many years ago by the Ia
koma Park Loan G Trust Co.: that the
railroad company. when delivering the
coal in trucks. violated the interstate COM
merce act. and therefore did not come into
court with clean hands: that the unload
ing of freight at North Takoma is public
nuisance which is the duty Of the town
to abate, and that freight yard there
does not harmonic with the general park
ins scheme Of the immediate vacinity.
The answer asked that il be considered
q crOss-bill and that unloading freight at
the point in question be decreed a nui.
sance that the railroad company be enjoin-
ed from using the siding for loading and un-
loading freight and required to remove it's
tracks and unloading platform from the
''public park. .t..
Judge Petess opinion sustains all OF
the demuners excepting the one relating
u, 1f fuIssss.. =. -'-ss''-.e OF .-",'
: .esardips the question of dedication.
Judge Peter says in his opinion that "the
recording Of plots showing parks and then
exercising no acts Of ownership over the
land for more than 80 years convinces
me beyond a reasonable doubt that the
owner Of the subdivision intended that
the land be dedicated to the public use as
parks"
The demurrer as to "clean hands" is too
remote from the real issue. Judge Peter
held.
The effect Of Judge Peters decision is.
1t is understood. that an early date will be
fixed for trial Of the question Of dedication
In the meantime. on July 10. Judge Peter
will hear arguments on the motion to dis
solve the temporary injanctiOn.
The proceedings before Judge Peter have
been conducted in behalf Of the town Of
Takoma Park by Corporation Council J.
Bond Smith. OF Takoms. and Attorneys
Cissel & Woodward. of Rockville. Attor-
neys Talbot & Prettyman. Of Rockville.
represented the railroad company.
The decision dealt with the pIeadings
only. At the trial of the question Of dedi.
cation the facts will be gone into. 4
New penitentiary Site.