Deepwater in 1903 & 1904 -- Jenny's Gap

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Wed Dec 12 07:25:42 EST 2007

The case of the C. & O. railway company against the Deepwater Railway company, to condemn a right of way through Jenny's Gap, previously acquired by the Deepwater people, was decided by Judge Sanders in the Raleigh circuit court, after hearing all the evidence in the case last week. The case turned on the point as to which company had secured the first location of way through the Gap. The court held that the C. & O. had secured the first location of way, and that the land, owned by the Deepwater Company for a right of way through the pass was subject to condemnation. According to Judge Sanders' holding, the C. & O. will build its road alongside the Deepwater road through the narrow gap.

Bluefield Daily Telegraph
June 10, 1903

Right of Way Struggle Is Decided by the Supreme Court
Judge Proffenbarger has handed down his decision in the case of the Chesapeake and Ohio Railway company vs. the Deepwater Railway company, which has been pending in the supreme court of appeals for a year. The case was up on a writ of error in the proceeding of the Raleigh county circuit court. Judge Proffenbarger decrees in favor of the Deepwater Railway Company. This decision being now the law of West Virginia in regard to all such matters, will be of vital interest to the railway world, and so far as West Virginia is concerned, set the matter at rest. The decision, no doubt, will have great effect on the legislation and decisions of other states concerning railroad matters.
The case has been of intense interest to the people of the counties of southern West Virginia and the nearby counties of Virginia.
This suit was brought for the purpose of determining the priority of location of the right of way for a railroad at a point called Jenny's Gap, on the ridge between the waters of New river tributaries and those of Guyandotte river branches. There is space for two locations through the gap, but the question is one is preferable to the other.
On the 30th day of August, 1902, an engineer employed by the Deepwater Railway Company finished a survey and staked off a location for said railway through the gap. On the same day a party of surveyors for the Chesapeake and Ohio railway began a survey of the same location for a branch line for that road and staked off the same location on the first and second days of September. A short time afterward the Deepwater Company purchased in fee simple the ground upon which the location for the railway was staked off and began the construction of its line along the disputed strip, and prosecuted the same at a cost of $8,500.
On the day the Chesapeake and Ohio engineers were met in Jenny's Gap by the engineers of the Deepwater railway they had gone to make a connection between that point and a line they had been making from Raleigh station and which they had completed to within six or seven miles of that place.

Bluefield Daily Telegraph
December 2, 1904

[For a detailed account of the legal aspects of this controversy, see "The Battle for Jenny's Gap" by Ed Wiley in the March/April 2001 issue of The Arrow. Two differences are noted in that article from The Arrow and the above newspaper articles. The former spells the name of the supreme court judge "Poffenbarger," and the former states that the supreme court gave its decision on April 25, 1905, whereas the above December 2, 1904, newspaper article states that the judge had already handed down his decision. Maybe someone can clean up the apparent discrepancy between the two dates.]

Gordon Hamilton
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