Grade Separation Injunction Dissolved Monday

GRADE SEPARATION INJUNCTION DISSOLVED MONDAY

Judge Kinne Decides That the Courts Will Not Interfere With Council's Judgement

When They Act Within Their Power-He Also Decides That the Ordinance Had Enough Votes to Pass It 

  Judge Kinne has dissolved the temporary injunction granted Dean & Co. restraining the proposed grade separation and in his opinion, filed Monday morning, goes rather fully into the whole case. In his opinion Judge Kinne says:

   "Among some persons there seems to be a misapprehension as to the relations which exist between courts and municipal governments.

    "A municipal government, when actlng within its powers, is entirely independent of courts. A city government may display great lack of wisdom; may be extravagant and even improvident; it may act contrary to and in open defiance of public opinion; yet so long as the common council keeps within the powers granted to it by the city charter, a court cannot and ought not to interfere. It would be unfortunate to all concerned if a court were to attempt to review the wisdom of a city government in its matten of legislation and administration. The remedy for unsatisfactory legislation must rest with the constituency which places the government in power. It is only when the municipal government has exceeded its powers, or is proceeding unlawfully, that courts are justified in interposition. I do not intend to imply that there has been unwise legislation; the primal motive for grade separation is the preservation of human lives. I only wish to point out the remedy, if any exists.

   "The matter involved in this case is the ordinance of the city called the Grade Separation.

   "The complainants insist that the subject matter of the ordinance demanded for its valid passage a vote of two-thirds of all the members-elect of the common council. In this respect I think they are mistaken. In my opinion the ordinance is valid. A majority vote was sufflcient. It was not the question of the vaeation of a street, but only the ehange of the grade of the defendant railroad company.   "This case involves another question of some seriousness.

   "The complainants claim that by reason of this change of grade, so far as they are concerned, there is such a taking of their private property for public purposes as to bring the case within the constitutional provisions requiring compensation to be flrst made or provided for before such appropriation. If they are correct in this view, then this injunction should be dissolved.

   "If this proposed use of the public street by the railroad company was presented as an original proposition different questions might arise. But this railroad company was in full possession and exercise of its corporate franchises many years before the complainants acquired any title to their property. They undoubtedly purchased the lots named in their bill of complaint by reason of the fact that they lay adjacent or in close proximity to the right of way of the defendant railroad company, and undoubtedly for the same reason erected their warehouses and other improvements thereon. We may properly assume that years ago when the railroad company acquired its right of way through or along these lots, whatever, if any, burdens were thereby created or susained by the then owners of these lots were then recognized and discharged.

   "A change in the grade of a railroad, as in the change in the grade of a street, may and often does result in diminishing the value of certain property and the enhancement of other; but generally these are incidents in the nature of risks in business for which there is no remedy of grade contemplated or could result in the exclusion of the complaintants from the approaches to their property from First street, so that their ingress and egress thereto would be destroyed or seriously harmed and their property thereby rendered valueless or seriously jeopardized, such action of the railway company mlght be deemed , such a taking of private property as would bring it within the constitutional inhibition. The showing at the hearing of this motion refutes any such claim. The approaches, the ingress and egress, to these lots of the complainant from First street, remarn undisturbed by the proposed change of grade. Evidently the main inconvenience to the complaintants arises from the fact that by this change of grade, the complainants, in common with the general public will be unable to cross the right of way of the railroad company in their passage south from their premises along First street to William street.

   "If there is any loss or damage to them by reason thereof it is only the injuries which they suffer in common with the general public and for which there would no legal redress.

   "It follows from the foregoing conclusions that. whatever rights the conplainants may have In this matter, there exists no warrant of justification for an injunction: which ought not to be granted to arrest an important public Improvement without clear authority therefore.

   "There Is another quostion in this case which I do not find easily solved.

   "The defendants insist that the feo of First street is in the city, while in reply thereto the complainants declare that the fee of said street is in them, so far as their lots abut the street.

   "I am not able to determine this matter to my own satisfaction with certainty. Undoubtedly for certain public and propriotary purposes, the fee must be regarded as being in the city, while the reversionary interest or fee exists in the abutting proprietors. Thus the exact situation of this matter in certain cases may be in doubt.

  "Ordinarily, in my opinion, the fee is in the adjoining owner. In this case, however, the bill of complaint containa no such allegatlon, and I think the question is perhaps not material in this suit. "If the complainants are entirely right in their contention in this regard it may follow that the complainants may have a remedy at law in damages for this incidental Increased burdeii to their alleged fee in the public streets. 

   "The injunction heretofore granted must be dissolved."