175 F. 517 (N.D.Ga. 1910), Ewing v. Seaboard Air Line Ry.

Citation:175 F. 517
Party Name:EWING et al. v. SEABOARD AIR LINE RY.
Case Date:January 01, 1910
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 517

175 F. 517 (N.D.Ga. 1910)

EWING et al.

v.

SEABOARD AIR LINE RY.

United States Circuit Court, N.D. Georgia.

January 1, 1910

         Hoke Smith and Marion Smith, for plaintiffs.

         Brown & Randolph and Alex C. King, for defendant.

         NEWMAN, District Judge.

         The present hearing in this case is on a demurrer to a cross-bill filed by the defendants in the original bill.

         While the main question in this case, and the first to be determined, is whether the receivers of the Seaboard Air Line Railway and the railway company have the right, as against the complainants in the original bill, to close Bartow street, or to occupy it for their terminals in the way proposed, still I am not so sure that, if the receivers of the Seaboard Air Line Railway and the railway company have the right, under the city ordinances and under the law of the state, to occupy the end of this short street, in view of the situation and surroundings, as they propose to occupy it, they would not be entitled under a proper proceeding to have that right settled upon the payment of proper compensation to Ewing and others for any injury to their property. It may be that their rights in this respect would be properly decreed on complainants' bill, the answer, and such testimony as may be submitted; but I am not sufficiently clear that they would not have the right to the affirmative relief claimed by them in the cross-bill to justify me in sustaining the demurrer to the cross-bill at this stage of the case.

         If it should be finally determined in the case that the original complainants are entitled to a decree that the receivers of the Seaboard Air Line Railway and the railway company have no right to use the end of Bartow street otherwise than to cross the same in shifting cars to and fro, in the ordinary way that streets may be crossed for railroad purposes, then, as I understand it, the complainants insist upon no further relief, at least not upon any compensation. If, on the other hand, it should be finally determined that under the city ordinance and the law of the state, and in view of the character of the street and the surroundings, and what has transpired, that the receivers

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of the Seaboard Air Line Railway and the railway company may occupy the portion of Bartow street as they desire, and claim the right to do, then the question will be presented as to the exact character of the...

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