Railroad Was Not In Contempt

RAILROAD WAS NOT IN CONTEMPT

When They Raised Grade in First Street

JUDGE KINNE'S DECISION

In the Contempt Proceedings Brought by Dean & Co. Against Officials of Ann Arbor Railroad

Judge Kinne has decided that the officials of the Ann Arbor road were not in contempt when they raised the grade on First street. This decision is the worst set-back Dean & Co. have yet sustained in their litigation with the Ann Arbor road and they have not yet determined what further steps to take. The opinion of Judge Kinne in full is as follows:

"This is a proceeding to punish the defendants for an alleged violation of the injunction granted in the final decree between the parties hereto.

"It is to be regretted that all spirit of compromise and amity has wholly disappeared between the litigants in this controversy.

"The gravamen in the original bill of complaint is the charge that the defendants are about to erect an embankment in First street in front of the premises of the complainants to a height of twelve feet, and in such a manner as to practically close First street to public travel, and to deprive the complainants of a reasonable right of access by way of ingress and egress to and from their property to said First street.

"The final decree enjoins the defendants from building said embankment and from digging up or encumbering said First street at any point between Liberty and William streets, in such a way as to render the same unsafe or unfit for public travel, or unfit or unsafe for the complainants to have a reasonable right of access by way of ingress and egress to their property to the south as well as to the north.

"I think it is probably that if the defendants had frankly avowed just what they proposed to do, and if no hostility existed between the parties to this controversy, no complaint would have been made by the complainants and these proceedings would not have been instituted.

"The evidence submitted at this hearing satisfies me that there has been no attempt or thought of closing First street at any point, or erecting said embankment; that it has not been rendered unsafe or unfit for public travel and that the defendants have not been deprived of a reasonable right of access by way of ingress and egress to their property on First street.

"The showing here, in my opinion, is not the case made by the bill of complaint, and the acts now complained of are not within the prohibition contemplated in the final decree. First street has not been closed, nor has the travel thereon been in the least impaired, but rather improved, and their has been no material invasion of the rights of the complainants in the matter of the ingress and egress to their property, unless it be in the slight rise of the approach to their property, which does not seem to me to be important or material.

"The grading of the premises of the complainants along the west side of their building so as o conform to the right of way of the railroad is but a simple matter which the railroad offered to do, at this hearing, if the complainants so desired.

"I am satisfied from the evidence that in this matter the railroad company have acted in good faith, relying upon their strict legal rights, and in the belief that they were not within the inhibition stated in the decree. While there may exist some doubt I am not prepared to hold otherwise.

"I think the order to show cause may be discharged.

"October 24, 1903.

"E. D. KINNE,

"Circuit Judge."