by Homer Greene
CHAPTER VII
The celebrated equity case of the Tidewater and Western RailroadCompany _vs._ the Delaware Valley and Eastern Railroad Company came onto be heard at Mooreville on the second Monday of December term. Thequestion at issue was the priority of right to build a railroad throughPickett's Gap. When court convened at two o'clock, the court room wascrowded. The case had aroused great public interest and curiosity.Besides the local counsel engaged, there were eminent lawyers inattendance from New York and Philadelphia. There was bound to be somenice legal sparring, and people wanted to see and hear it. The battlebegan soon after the case was opened, when the Tidewater and Westernoffered in evidence their paper title to the route acquired by themfrom the old Lackawanna Company. The D. V. & E. people had not expectedthis, and it provoked a prolonged contest between counsel. Indeed, thebetter part of the afternoon was occupied in the effort to get thistitle in evidence. When it was finally admitted another struggle wasimmediately precipitated by the offer of the minutes of the meeting ofthe board of T. & W. directors, at which the route through Pickett'sGap was formally adopted. And when this contention was settled in favorof the T. & W. it was time for adjournment.
Just enough evidence had been taken to whet the appetite of the publicfor more. And when court was opened at nine o'clock on the followingmorning the court room was again crowded, notwithstanding the fiercesnow-storm that was raging outside. Pickett, the T. & W. engineer, andhis assistants were put on the stand to identify the map of the routeand to testify regarding the right location through Pickett's Gap.There was very little cross-examination. The defence were evidentlysaving their ammunition. Then the plaintiff rested, and the D. V.& E. took up their side of the case. Their charter was admittedwithout objection; but over the testimony showing the adoption, bythe board, of the Pickett's Gap route, there was a lively tilt.Indeed, it appeared from the evidence in the case that the directorsof both companies had held their meetings on the same day, and atpractically the same hour, for the purpose of receiving the reportof the engineer and adopting the route recommended by him. There wasalso a long contest over the admission of the route-map and profile,and when these were finally admitted the court adjourned for the noonrecess. The wind was playing wildly with the driving snow, and acrossthe paths through the court-house square great drifts had alreadyformed. Lawyers, witnesses, and spectators set their faces againstthe storm, pulled the collars of their great-coats up about theirears, and struggled to their hotels and homes. At two o'clock they allstruggled back again through the still driving, drifting snow. Indeed,the crowd was even greater than at the morning session. Nicholson, theD. V. & E. engineer, and every member of his corps were called on thestand to testify to the setting of the stakes, through Pickett's Gap,on the afternoon of September twenty-seventh. No amount or severityof cross-examination could shake the testimony of any of them on thatpoint. Nor could any of them explain why the stakes were not stillin position (if they were not) when Pickett made his survey some sixor eight hours later. Nicholson declared, however, in answer to aquestion on direct examination, that the surreptitious removal of thestakes would benefit no one unless it might be the T. & W. RailroadCompany. But this objectionable answer was, on motion of counsel forthe T. & W., stricken from the record. Templeton, the Philadelphialawyer, took up the cross-examination.
"It appears," he said to Nicholson, "from this map which I have beforeme, 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 thegraveyard?"
"We did."
"Is there any other practicable route by which to reach the entrance tothe gap except the one occupied by the Tidewater and Western running tothe south side of the brook?"
"There is no other."
"If then it should turn out that your company has no legal right tooccupy this graveyard as a site for a railroad, you would find itdifficult to effect an entrance to the gap from the west?"
"Yes, sir, practically impossible."
"And did you not know, when you projected your line across thatgraveyard, that your company, by virtue of the laws of Pennsylvania,had no right to occupy it with a railroad?"
"I knew that we had no right without the consent of the owner. Thatconsent, however, has been obtained."
"In what way?"
"By fraud!"
It was not the witness who made this answer; it was Abner Pickett.Seated on the front row of benches, within easy distance of the witnessstand, he had absorbed the testimony with intense interest, holdinghimself in check with remarkable self-restraint until Templeton'squestion gave him an opportunity for a verbal shot which he had not thepower to repress. Every eye in the court room was turned on him, but hecared little for that. A tipstaff came up and warned him not to repeatthe offence, and then the examination of witnesses was resumed.
And so Abner Pickett sat, that morning, and looked upon and listened tohis own son, Dannie's father, as he gave his testimony on the witnessstand. Handsome, manly, frank in all his answers, the impressioncreated by Charlie Pickett, both in the mind of the court and in theminds of the spectators, was a most favorable one. Long before he hadfinished there was not an unprejudiced person in the court room who waswilling to believe, for a moment, the insinuation made by Nicholsonthat the D. V. & E. stakes had been removed under Pickett's directionfor the benefit of the T. & W. And when, on cross-examination, he waspressed to give his reason for going around instead of across thePickett graveyard, he was content to reply simply that he understoodthat the right of eminent domain, conferred by the commonwealth ofPennsylvania upon railroad corporations, did not include the right tooccupy burial-places. And Abner Pickett, who knew of his son's fardeeper reason for not crossing the graveyard, listened with bowedhead, appreciating to the full the delicacy which so skilfully avoidedthe thrusting of personal and family sentiments and secrets beforethe court and the public. It was the first time in thirteen yearsthat he had looked upon Charlie's face. He could not help but observehow mature and manly the boy had grown; he could not help but admirehis stalwart figure, his handsome countenance, his graceful bearing.He could not wholly repress the feeling of pride that would swellup in his heart as he looked upon this splendid specimen of youngmanhood, and listened to his answers, given with a quickness and rareintelligence not often found in the court room. "This is your boy,"something in his breast kept repeating to him; "this is your boy; thisis _your_ boy."
And yet--and yet, for two days he sat with him in the same room,brushed past him in the corridor, could have reached out his arm atalmost any moment and touched him, looked straight again and againinto his appealing and eloquent eyes, and never gave the first sign orhint that he desired a reconciliation. Strange how stubbornness andobstinacy and the unforgiving spirit will rule the natures and thwartthe happiness of men.
Gabriel was called to the witness stand to testify to having seenNicholson and his men set their stakes from the mouth of the gapwesterly on the afternoon of September twenty-seventh.
"Yes," he replied, in answer to the lawyer's question. "I seen 'em.They come straight from the gap acrost the graveyard an' up into thepotater field where I was workin'."
"Saw them set their stakes, did you?"
"Ev'ry one of 'em; 'specially the one they hammered into the middle ofthe graveyard."
"Did you see any stakes in the gap that day?"
"Not a stake. Wasn't through the gap till the next mornin'. Then theywas a plenty of 'em there; but not a sign of a stake in the graveyard.Wa'n't that kind o' queer?"
"Very. Now, then, did you see any one remove any of those stakes?"
"Not a person."
"Did you remove any of them yourself?"
"No, siree!"
"Was any one with you in the potato field when the engineers came up?"
"Yes; Dannie."
"Dannie who?"
"Dannie Pickett; Abner Pickett's gran'son."
"Is he in court?"
"I reckon he ain't. He didn't come yisterday; an' I sh'd say he'd findit perty tough sleddin' to git here to-day."
"Now, then, did you or Dannie Pickett threaten those engineers with anyharm?"
"Well, I reckon I told 'em it wouldn't be healthy fer 'em ef AbnerPickett was on deck; an' Dannie, he 'lowed 'at they wouldn't norailroad run through _his_ gran'pap's graveyard; ho! ho! ho!"
The recollection of the circumstance seemed to amuse Gabriel very much.
"Funny, was it?" asked the lawyer.
"Funny ain't no name fer it," replied Gabriel.
Then the lawyer--Marshall of New York--put on an air of severity.
"Now, sir, did you hear any one, at any time, threaten to destroy orremove the stakes set by the Delaware Valley & Eastern engineers?"
Gabriel waited a moment before answering. He was evidently ponderingthe matter deeply.
"W'y, I can't say adzackly," he replied slowly, "as I heard anybodythreaten to pull up them stakes. No, I can't say adzackly as I did."
"Well, what threats did you hear concerning those stakes?"
"W'y, I didn't hear nobody threaten to pull 'em out, er hammer 'em in,er chop 'em down, er burn 'em up. No, sir, I didn't."
Gabriel looked beamingly down on the array of counsel, feeling that hehad covered the ground that time, at any rate. He did not know that hehad simply whetted the lawyer's appetite for information.
"Come, now, answer the question. You heard threats, what were they?"
"W'y, I can't adzackly say as I heard any threats."
Marshall, the lawyer, was becoming annoyed. He rose to his feet andshook his forefinger angrily at Gabriel.
"You know more about this matter than you are willing to reveal," heshouted. "Now, sir, I want you to tell this court what you know and allyou know about the removal or threatened removal of those stakes!"
Gabriel looked smilingly down upon him.
"Well," he replied slowly, "ez ol' Isra'l Pidgin use to say, 'Ef yedon't know a thing, better let somebody else tell it.' Thuffore I'd aleetle ruther somebody else'd tell it."
"And who is Israel Pidgin?"
"Oh, an ol' feller I use to know up in York State."
"Confine yourself to Pennsylvania and answer my question. I shall tryto make it simple and direct. Did you, at any time, hear any personmake a threat to remove those stakes, or express a wish to have themremoved? Yes or no."
This question was getting dangerously close to Abner Pickett. Gabrielrecalled, with startling distinctness, that night on his employer'sporch, when the old man declared with such terrible emphasis that noperson could do a better deed than to pull out all the stakes and throwthem into the brook. And there was Abner Pickett now, sitting on thefront bench, head and shoulders above the crowd, piercing him throughwith those clear blue eyes. He was in a quandary. He hesitated longbefore replying.
"Well," he said, at last, "I can't say that I heard anybody sayadzackly that; no, I can't."
The lawyer followed up his clew mercilessly.
"Did you hear any one, at any time, say that it would be right andproper to remove or destroy those stakes?"
Before Gabriel could answer, Templeton, the opposing lawyer, was on hisfeet.
"Counsel forgets," he declared, "that this is his own witness whom heappears to be cross-examining. I demand the enforcement of the rule andthe protection of the witness."
Judge Moore removed his glasses and poised them between his thumb andforefinger.
"The witness appears to be unfriendly and evasive," he declared."We think counsel is within his rights in pressing the question.Proceed."
The incident gave Gabriel time for thought; but if he had had a year inwhich to think it out, he could not have framed a successfully evasiveanswer to the question. And it added not a little to his discomfiturethat Abner Pickett's eyes were still piercing him like arrows of fire.
"Well," said Marshall, impatiently, "answer the question. We can't waitall day."
"W'y," stammered Gabriel, "I--well I--"
"Tell the truth, you fool!"
"'Tell the truth, you fool!'"]
It was Abner Pickett who spoke that time, standing his full six feettwo and pointing his long forefinger at the disconcerted witness. Againevery eye in the court room was turned on the speaker. His arm wasgrasped roughly by a tipstaff, who hurried to his side.
"Don't remove him," said Marshall. "I shall want him on the stand in amoment."
"The sooner, the better," replied the old man, shaking off the grasp ofthe officer and dropping into his seat.
Marshall turned to the witness.
"Answer my question," he demanded sharply, "yes or no."
"Yes," replied Gabriel.
"Who said so?"
"Abner Pickett."
"When?"
"The same night the stakes was set."
"What did he say?"
"He said nobody could do a better thing than to pull 'em all up an'throw 'em into the crick."
"That will do. Abner Pickett take the witness stand."
Things were moving rapidly now. Before Gabriel fairly knew it he wasdown out of the witness box, and his employer had taken his place andbeen duly sworn.
"Are you the Abner Pickett of whom the last witness spoke?" was thefirst question asked him; and the answer came with a promptness thatwas startling.
"The same man exactly."
"And is it true that you declared that a person could do no better deedthan to remove the stakes set by the D. V. & E. engineers?"
"True as Gospel."
People in the court room craned their necks and listened intently. Thiswitness promised to be interesting, to say the least.
Back near the main entrance to the court room there was some noiseand confusion. A door had opened and a boy had stumbled in. Numb andstiff and faint with cold and fatigue he had tripped awkwardly over aconstable's staff and had fallen to the floor. People in that part ofthe room turned in their seats to see what the noise was about, andthose near by looked curiously at the prostrate boy. He was helped tohis feet by the constable, duly admonished, and given a seat on thelast row of benches but one. It was Dannie Pickett. How he had managedto force his way, in the teeth of that terrible storm, through thegreat drifts that blocked the country roads, down into the desertedstreets of the town, and thence to the county court-house, no one wasever afterward quite able to make out, nor was he himself ever ablefully to explain. It was one of those feats of physical endurance madepossible only by the splendid power of determination, and even thenfairly striking across the border line of the naturally possible intothe realm of the miraculous and the providential.
As Dannie breathed the warm air of the court room, he began to regainhis strength, and, save the aching in his limbs, and the prickingsensations over his entire body, he suffered no pain. When the misthad cleared away from before his eyes, he saw that his grandfather,whom he had intended to search out, and to whom he had resolved tomake his confession immediately on his arrival, was sitting up in thewitness stand, undergoing examination. And down to his ears, throughthe intense quiet of the court room, came the lawyer's question:--
"Don't you know that the law of Pennsylvania makes it a crime,punishable by fine and imprisonment, to remove stakes set by a surveyoror engineer?"
Abner Pickett glared at his questioner.
"I ain't here," he replied, "to tell you what I know or don't knowabout the laws o' Pennsylvania. If you've got any questions to askabout the facts, ask 'em and I'll answer to the best o' my ability."
Consciously or unconsciously he had placed himself within the rules ofevidence and the protection of the law. Marshall saw that he had lost apoint, and he started out on a new tack.
"Very well, Mr. Pickett. We will get down to facts. Where was thiscelebrated declaration of yours, as testified to by the precedingwitness--where was it made?"
"On my side porch, in the evenin' of September twenty-seventh; theevenin' o' the day t
he stakes were put in."
"Very good; who were present and heard it?"
"Well, David Brown was there for one. No, he wasn't, either. He'd gonehome. There wasn't anybody there except my grandson, Dannie, and thatfool that was just on the witness stand."
"Gabriel?"
"Yes, Gabriel."
"Where did he go then?"
"He went to bed."
"Where did you go?"
"I went to bed."
"And the boy?"
"Why, we all went to bed. It was after ten o'clock. Do you s'pose wesit up all night down at the gap?"
"Really, I didn't know, Mr. Pickett, without inquiring."
The witness was losing his temper, the lawyer was getting sarcastic,and the spectators were anticipating a still greater treat in storefrom the continuance of the examination.
In his seat at the rear of the court room Dannie sat, dazed,motionless, listening and hearing as one in a dream; in his breaststill the imperious demand of his conscience urging him to confess; inhis palsied limbs no power to move. Then Marshall took up a new line ofexamination. He handed a paper to the witness directing his attentionto the name at the bottom of it.
"Is that your signature, Mr. Pickett?" he asked.
The old man looked at the paper carefully.
"Yes," he replied, "it is. I wrote it myself."
"This paper is an agreement to sell to the Delaware Valley andEastern Railroad Company a right of way fifty feet in width, throughyour property, on the line located by their engineers on Septembertwenty-seventh last. You signed that paper voluntarily, without anycoercion, naming your own price for the property?"
"Let me tell you about that paper, young man."
"No; answer my question, yes or no."
"Then I say, yes. A hundred times, yes. I was neither bullied norbought; but I was deceived and defrauded. When I signed that paperthe only line of stakes I knew anything about was the line that wentacross the brook and around the graveyard. I supposed that was theroute I was sellin'. I said so to the man who brought the paper. Hedidn't undeceive me. To all intents and purposes he lied to me, and hiscorporation has attempted to rob me. Do you think, sir," demanded theold man, rising from his chair, with the crimson spreading over hisneck and face, and pointing his long forefinger at the lawyer, "do youthink I would sell to any person or to any company, for any money inthis world, the right to desecrate the graves of my dead; the right todisturb bodies that were so dear to me in life, that I would have givenall I possessed to save them from the slightest hurt? Do you? I say, doyou?"
Marshall was getting more than he had bargained for; but he was toogood a lawyer to permit himself to lose his grip.
"Be seated, Mr. Pickett," he said firmly, "and keep cool. Now, don'tyou know that, regardless of your agreement to sell the right of way,a railroad company has a right, under the laws of this state, oncomplying with certain conditions, to build its railroad on any landbelonging to any person?"
The old man dropped back into his chair.
"No," he replied, "I don't. I ain't a lawyer; but I don't believethat's the law. They say law's founded on justice, and it ain't just,and it ain't human for any one to have the right to disturb my deadin their graves against my will. God's Acre in this land and in thisage is his holy of holies. He sends his rain an' dew an' frost to fallmore gently on the homes o' the dead than on the homes o' the livin';and it's the duty, and ought to be the joy of any man to protect thatsacred place from desecration."
Through the hush that had fallen on the great crowd in the room, theold man's voice rang pathetically clear. On the faces of the spectatorsthere were no longer any smiles. The whole atmosphere of the court roomhad changed to one of solemn earnestness. Even the examining lawyer sawthat it would not be fitting nor profitable to follow out that lineof questioning. When he again spoke it was in a quieter voice, and onanother branch of the subject.
"Mr. Pickett," he said, "when did you first see this line of stakes?"
"Not till the next mornin' after they were set."
"Did you follow the line?"
"I did."
"Did it run through your graveyard at that time?"
"No, sir, it went across the brook and around the graveyard, in ashan'some a curve as you ever saw."
Charlie Pickett, sitting back among the spectators, his heart throbbingwith pity and pride as the old man's examination progressed, heard thislast answer and flushed to his finger-tips.
"Were there no stakes in the graveyard?"
"Not one. I saw the place, though, where one had been set and pulledout. I pulled another out of the same place myself four days later andflung it into the brook."
Marshall paid little heed to this last answer, although it was in thenature of a direct challenge. A new thought appeared to have struckhim. He gazed at the ceiling contemplatively for a full minute beforeproceeding with his examination.
"By the way," he said, "how early in the morning was it that you sawthis line of stakes?"
"Just about sunrise."
"Where had you come from?"
"From the house."
"Had you been long up?"
"Just got up."
"Did you go alone to look at the line?"
"Yes--no; my grandson, Dannie, went with me."
"Where did you first see him that morning?"
"There at the house."
"Indoors or outside?"
"Why, I believe he was comin' up the path."
"Had he been long out of bed?"
"That I don't know."
"Do you know where he had been when you first saw him coming up thepath?"
The old man waited a moment before answering. Some vague apprehensionof trouble about to fall upon Dannie seemed to be taking possession ofhis mind.
"Why, no," he replied slowly, "I can't just say where he had been."
"Was this the same boy that heard you make that declaration concerningthe stakes the night before?"
"Yes--why, yes--the same boy. Yes--the same boy."
He spoke as if he were dazed. His voice dropped almost to a whisper.He gazed out over the heads of the people in the court room with eyesthat were looking into the past. He saw Dannie as he appeared thatmorning--his weariness, his exhaustion, his nervous excitement, hisutter collapse as they stood together in the dew-wet grass of thegraveyard. It all came back to him with the clearness, with the quickcruelty of a lightning stroke. His eyes drooped, his face paled, hishead dropped lower and still lower, till his chin rested on his breast.People in the court room who looked on him knew that something hadhappened to him; but whether it was physical illness or mental distressthey could not tell. For a minute the room was still as death. Then thestillness was broken by a slight movement among the rear benches, swiftfootsteps were heard in the aisle, a boy came hurrying down to the barof the court. His face was drawn and pale with excitement and fatigue.His eyes, from which shone both distress and determination, were fixedstraight ahead of him. As he went, he held out his hands toward the oldman on the witness stand.
"Gran'pap! Oh, Gran'pap! I did it. I pulled up the stakes. I threw 'eminto the brook. I did it in the night--in the night--in the moonlight.Oh, Gran'pap!"
He crossed the bar, wound his way among chairs and tables, reachedthe witness box, and stood there leaning against it, and looking upbeseechingly into his grandfather's face.
For one moment Abner Pickett sat motionless, as if he were stunned,looking with staring eyes at the boy standing below him. Then hereached his long arms out over the rail and wound them about hisgrandson's shoulders, and then he hid his rugged face in the soft curlsthat clustered on the boy's neck.
