People's Traction Co. v. Cent. Pass. Ry. Co.

• Decision Date: 01 July 1904
• Parties: PEOPLE'S TRACTION CO. et al. v. CENTRAL PASS. RY. CO.
• Court: New Jersey Court of Chancery

58 A. 597

67 N.J.E. 370

PEOPLE'S TRACTION CO. et al.

v. CENTRAL PASS. RY. CO.

Court of Chancery of New Jersey.

July 1, 1904.

(Syllabus by the Court.)

Bill by the People's Traction Company and another against the Central Passenger Railway Company for an injunction. Decree for complainants.

Eli H. Chandler for complainants.

C. L. Cole, for defendant.

GREY, V. C. One of the complainants— the People's Traction Company—is a trolley company incorporated under the act of March 14, 1803 (Gen. St. p. 3235), which claims that it has, by filing a description of the route on December 23, 1903, acquired the exclusive right to build a line of street railway over certain streets in Atlantic City, among others over Virginia avenue, for a period of six months thereafter. The other complainant, Corson, is the owner of a lot of land lying on and in that avenue. The complainants allege that the defendant company, which was incorporated under the street railway act of 1880, subsequently to the acquirement by the complainant company of its aforesaid exclusive right to lay a street railway in Virginia avenue, has secured an ordinance from the city of Atlantic City authorizing the defendant company to build and operate a line of street railway over the same streets, among others in Virginia avenue, in which the complainant company contends it had already obtained its exclusive right. The validity of the defendant company's ordinance has been challenged by the complainant company by a writ of certiorari allowed by the Supreme Court in the case entitled "People's Traction Company v. Atlantic City et al.," that a hearing has been had of that cause in that court, and judgment has been there rendered in favor of the defendant company and adverse to the complainants. A writ of error has been promptly taken by the complainants removing the judgment of the Supreme Court into the Court of Errors, where the case now remains pending, but undetermined. It further appears that the defendant (the Central Company) while the complainant (the People's Company) is prosecuting its writ of error with diligence and in good faith, and before the cause can be heard, is about to construct its railway in and along Virginia avenue. The complainant company prays that the defendant company may be enjoined from occupying Virginia avenue in derogation of the alleged exclusive right of the complainant company to construct a line of railway thereon, and the complainant Corson that the defendant may be restrained from tearing up said street and impeding and obstructing travel thereon, etc. Upon the filing of the bill, copies of proceedings and affidavits annexed an order was allowed to show cause returnable to-day (June 14th) why the complainants should not have the relief prayed for in their bill of complaint, with an ad interim stay, etc. On the coming in of the order the defendant company filed an affidavit showing that the Supreme Court in the certiorari suit, in holding that the defendant company's ordinance was legal, had refused to allow a writ of supersedeas pending the hearing of the writ of error taken to review its judgment, because that court doubted whether it had the power to allow such a writ after final judgment pronounced. The defendant's affidavit frankly admits that before the writ of error can be heard which will finally determine whether its occupancy of Virginia avenue is lawful, it is proceeding to construct its railway on that avenue.

The question argued is whether the complainants are entitled to a preliminary injunction restraining the defendant company from proceeding with the occupation of Virginia avenue, and thereon actually constructing its railway, while its right so to do is challenged by a pending suit at law, which is as yet not finally determined. The effect of the proposed action of the defendant company will be radically to change the status of the subject of the litigation before the pending suit regarding it can be determined, so that, if the Court of Errors and Appeals shall sustain the complainant company's contention that it has acquired the exclusive right under section 6 of...