The celebrated equity case of the Tidewater and Western Railroad Company vs. the Delaware Valley and Eastern Railroad Company came on to be heard at Mooreville on the second Monday of December term. The question at issue was the priority of right to build a railroad through Pickett’s Gap. When court convened at two o’clock, the court room was crowded. The case had aroused great public interest and curiosity. Besides the local counsel engaged, there were eminent lawyers in attendance from New York and Philadelphia. There was bound to be some nice legal sparring, and people wanted to see and hear it. The battle began soon after the case was opened, when the Tidewater and Western offered in evidence their paper title to the route acquired by them from the old Lackawanna Company. The D. V. & E. people had not expected this, and it provoked a prolonged contest between counsel. Indeed, the better part of the afternoon was occupied in the effort to get this title in evidence. When it was finally admitted another struggle was immediately precipitated by the offer of the minutes of the meeting of the board of T. & W. directors, at which the route through Pickett’s Gap was formally adopted. And when this contention was settled in favor of the T. & W. it was time for adjournment.
Just enough evidence had been taken to whet the appetite of the public for more. And when court was opened at nine o’clock on the following morning the court room was again crowded, notwithstanding the fierce snow-storm that was raging outside. Pickett, the T. & W. engineer, and his assistants were put on the stand to identify the map of the route and to testify regarding the right location through Pickett’s Gap. There was very little cross-examination. The defence were evidently saving their ammunition. Then the plaintiff rested, and the D. V. & E. took up their side of the case. Their charter was admitted without objection; but over the testimony showing the adoption, by the board, of the Pickett’s Gap route, there was a lively tilt. Indeed, it appeared from the evidence in the case that the directors of both companies had held their meetings on the same day, and at practically the same hour, for the purpose of receiving the report of the engineer and adopting the route recommended by him. There was also a long contest over the admission of the route-map and profile, and when these were finally admitted the court adjourned for the noon recess. The wind was playing wildly with the driving snow, and across the paths through the court-house square great drifts had already formed. Lawyers, witnesses, and spectators set their faces against the storm, pulled the collars of their great-coats up about their ears, and struggled to their hotels and homes. At two o’clock they all struggled back again through the still driving, drifting snow. Indeed, the crowd was even greater than at the morning session. Nicholson, the D. V. & E. engineer, and every member of his corps were called on the stand to testify to the setting of the stakes, through Pickett’s Gap, on the afternoon of September twenty-seventh. No amount or severity of cross-examination could shake the testimony of any of them on that point. Nor could any of them explain why the stakes were not still in position (if they were not) when Pickett made his survey some six or eight hours later. Nicholson declared, however, in answer to a question on direct examination, that the surreptitious removal of the stakes would benefit no one unless it might be the T. & W. Railroad Company. But this objectionable answer was, on motion of counsel for the T. & W., stricken from the record. Templeton, the Philadelphia lawyer, took up the cross-examination.
“It appears,” he said to Nicholson, “from this map which I have before me, that you located your route directly through the Pickett graveyard. Is that true?”
“It is.”
“And in making your relocation did you again pass through the graveyard?”
“We did.”
“Is there any other practicable route by which to reach the entrance to the gap except the one occupied by the Tidewater and Western running to the south side of the brook?”
“There is no other.”
“If then it should turn out that your company has no legal right to occupy this graveyard as a site for a railroad, you would find it difficult to effect an entrance to the gap from the west?”
“Yes, sir, practically impossible.”