Year: 1877

see there is q prospect OF some, what
you have justly termed "dog-in-tbe-
msnger," litigation between the Citi-
zens' and Elm Grove railways. The
Citizens Railway Company want to pre-
vent the other company from using fran
chises for the benefit of the public which
the former cannot use if it would and
would not il it could. do not know
what IS the Ian gusge OF the grant by the
city to the Citizens Railway Company,
but let it be almost as full as it may be,
it would seem to be just to interpret
the grant as Potoer TO the
company to be exercised reasonably.
That it was not the grant of an arbitrary
right to do as il pleased, and to exclude
everybody else and every company that
might be formed for benefting the
public from all exercise OF such power
and purpose. There is a common-sense
in this matter somewhere, and it Is not
to be supposed that the city surrendered
to this Citizens Company the control OF
every alley, by-path, and public walk
for It's emolument, and excluded all
other improvement of the kind, whether
il mioht in some sense be rival, or q
teed.r to the monopoly.


L. is possible that some light might be
thrown upon this subject by decision
made by Judge Thompson, when he was
on the bench of the Circuit Court, be-
tween the Wheeling Gas Comany VS..
e. w. Smith The gas company in that
case claimed the erelusiue right to lay
gas-pipe in the streets of the city. They
were charging exorbitant rates for gas,
and Mr.. Smith thought he could econo-
mize his private business if he could con-
struct gas works of his own and supply
his brewery and warehouse with gas
from the same works. They laid
on different sides Of the street,
nor exactly opposite each other, and
he must cross by his works the
the erelustve righ. claimed by the Gas
Company. This company had con-
siderable interest to defeat Mr.. Smith
not only because he wss large con-
sumner, but the example might induce
other large working and manufacturing
Interests to adopt a similar policy.
They proceeded against Mr.. Smith by
Injunction, and the judge in that instance
decided against the company and IN
favor of Mr.. Smith, ard he SMITH did
cross the street with his private gas pipe.
In that case the Supreme Court of Ap-
pesls refused to disturb the decision.


NV recollection OF the case is that it
came before the Judge on motion for
iniunc, and trat the Jud 80 required
notice To be served on Mr. SmItb, and in
this way the case WAS as fully contested
by counsel as it would have been on 8
motion to dissolve. This gave the parties
the same right to appeal as if the case
had been heard i'll the latter form.
Nbeth,r it WAS in either form the Su-
preme Court refused to disturb the dis
cislon.


1t is very likely that if the Citizens
Railway Company should attempt to
exercise their arbitrary right they would
find it necessary to show that they m
tended to exercise actually and bene-
fcially the pOtVer for the accommodation
of the public, which constituted the J"tL
and tair implied consideration OF the
grant by the city to the Company. 1t is
simply absurd to suppose that there was
no consideration whatever moving the
city to make any grant of power to the
Company, and the true Interpretation of
the grant l. that they shall use 1t tor tho
benefit OF the city, and that they shall
not abuse it for the injury Of the city.


w.