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Entered According to Act of Congress, in the year 1884,

BY DAVID RORER, In the Office of the Librarian of Congress at Washington, D. C.

THE LAW OF RAILWAYS.

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VOL. II.

CHAPTER XXXIV.

INJUNCTIONS.

Section.

By the dompany, to prevent tak

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Section. Against the company; general principles

1 Against the company, at the suit

of a private party, for injury

common to the whole public. 2 Against the company, to prevent

obstruction of highway. 3 Against the company, to prevent abuse of corporate power

4 Against the company, to prevent private nuisance

5 Against the company, to prevent

taking or using right of way 6 Against the company, to prevent suit for capital stock

7 Against the company, to prevent

breach of contract to locate de-
pot.

8 Against the company, to restrain

it from building branch road
before the main line

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ing depot grounds for public

highway. By the company, to restrain levy

for taxes. By the company, to prevent mul

tiplicity of suits By the company, to prevent com

mission of crime By the company, to prevent trans

fer of railroad grant lands By the company, to prevent in

fringement of its franchises By railroad receiver, to protect his

rights as such. By taxpayer, to prevent illegal

issue of bonds to railroad com

pany Will lie against directory to pre

vent breach of trust .

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Against the company; general principles.- It is a general principle that, forasmuch as railroads operated by corporations as common carriers are of a quasi public nature, therefore courts are reluctant to grant injunctions which may have the effect to stop their regular operations, as such a result must always seriously and injuriously affect the cominerce and interest of the public, and greatly inconvenience the people. Therefore such relief will only be given where the injury is great and irreparable, and no adequate remedy is given at law. The case made must be an urgent one, to justify such extraordinary interference and conseqnences.

These seem to be the ruling principles asserted by the courts upon this subject, in reference to railroads, where the matter remains as at common law, and on the broad principles of equity jurisprudence. But whilst these ancient landmarks are still the judicial guides in some of the states, as to the granting or denial of injunctions against railroad corporations, in others thert has been more or less of special legislation on the subject, and sometimes awarding this remedy where it were otherwise, as upon general principles of equity practice, not attainable.

Upon the filing of an answer, verified by affidavit, denying the matters alleged in the bill or complaint upon which a temporary injunction is granted, it should be dissolved. An order granting a preliminary injunction upou complaint, answer and affidavits of the parties, is so far a matter of discretion, that it will not be reversed unless such discretion is abused, even if most of the allegations of the complaint and plaintiff's affidavits are denied by the answer and defendant's affidavits.*

If the court ordering an injunction has jurisdiction to grant it, and to judge whether the case before himn is one demanding it, then, whether he judge erroneonsly or not, when granted it is valid, and until dissolved must be obeyed.

An injunction should never be granted because of the mere apprehension of the petitiover that a wrong may be done. There should be substantial ground for the apprehension, and that the injury will be serions, and practically irreparable. Thus a

1 Torrey v. The Camden & Atlantic R. R. Co., 3 C. E. Green's New Jersey Ch. Reps. 293.

2 Whittlesey v. The Hartford, Provdence & Fishkill Railroad Compiny, 23 Conn. 421; Hackensack Imp't Commission v. New Jersey Midland Ry. Co., 7 C. E. Green (N. J. Ch. Reps.), 94; Mocanaqua Coal Co. v. Northern Cent. Ry. Co., 4 Brewster, 158; Cook v. North & South R. R. Co., 46 Ga. 618, 11 Am. Ry. Rep. 424.

3 Aurora & Cincinnati R. R. Co. v. Miller, 56 Ind. 88, 18 Am. Ry. Rep. 144.

* Coolot v. Central Pacific R. R. Co., 52 Cal. 65, 21 Am. Ry. Rep. 211.

5 The Erie Ry. Co. v. Ramsey, 45 N. Y. (6 Hand), 6:37; Schell v. Erie Ry. Co., 51 Barbour, 368.

6 Goodwin v. New York, New Haven & Hartford R. R. Co., 43 Conn. 494, 11 Am. Ry. Rep. 9.

stockholder can not obtain an injunction restraining the officers of the company from granting passes to state officers and legislators, without prooť that the act is actually in contemplation.' Nor should an injunction be granted which, while injurious to the defendant, is of no special benefit to the plaintiff.?

2. Against the company, at the suit of a private party, for injury common to the whole public.-It is a well settled principle that an injunction will not lie, at the suit of a private person, to restrain or prevent a public nuisance, merely as such. Therefore a railroad company will not be restrained by injunction, on the application of a private individual, from committing an act or doing that which will amount to a public nuisance--as interfering with common right-where the applicant fails to show any special damage or peculiar injury to himself, distinct from that which is snffered by the public at large. If the act songht to be restrained is in derogation of a right or privilege which is common to the people generally, as well as to the plaintiff or complainant-as for tlie obstruction of a public way, watercourse or public inlet of water—it matters not that the petitioner be affected thereby more seriously than others, by reason of his residence or business requiring a more frequent use of the privilege; yet the injury being of the same character with that suffered in common with him by all others, the remedy by injunc. tion will not be granted on such individual application.'

The case cited from 62 Penn. St. was instituted by private parties, shippers on the road, to restrain the Cumberland Valley Railroad Company from a violation of its public franchise, in respect to charges of freights for transportation, and tolls for use of the road, by complainant's own cars, and for discrimination therein. appeared from the evidence that the two' persons complaining

Eeparately engaged in diverse business-one a dealer in grain, plaster and salt, and the other a dealer in coal and lum0. N. Y., N. H. & H. R. Appeal, 62 Penn. St. 218; Denver &

Swansea Ry. Co. 4. Denver City Ry. 2 Joliet & Chi. R. R. Co. v. Healy, Co., 2 Col. 673, 20 Am. Ry. Rep. 339.

* O'Brien v. Norwich & Worcester 0. The Hartford Bridge R. R. ('0., 17 Conn. 372; S. C. 2 Am. Co., 14 Conn. 56); Seeley v. Bishop,

R. W. Cas. 90; Black e. Phila. & 19 Conn. 135; Black r. Phila. & Read- Reading R. R. Co., 58 Penn. St. 249; ing R. R. Co, 58 Penn. St. 249; Hodgkinson v. Long Island R. R. Co., Cumberland Valley Railroad Co's 4 Edwards' Ch. 411.

It

were

Goodwin R. Co.

94 111. 416.

3 Bigelow

ber; and that there was no community of interest between them. The court held that the bill was not subject to the objec. tion of multifariousness. But the court further held, upon the merits, that an injunction will not be granted for “an injury common to the wliole public—a violation of a public franchise"; and said: “The rule is well settled, that where the injury is no greater to a plaintiff than to the inhabitants at large, the remedy to redress the subject of complaint is with the public"; and the bill was accordingly dismissed.'

The case of Black v. The Philadelphia & Reading Railroad Company, supra, was a bill in equity to restrain the erection and use of a railway in the street opposite complainant's property; and the ground alleged was that of not only a public nuisance, by obstruction of the street, but also a private nuisance to complainant's premises, and the causing of special damage to his adjoining property, not incurred by the public generally. The court, in disposing of the case, say: “ The track complained of is in certain public streets, and not upon any property of the plaintiff's, and, if a nuisance, is a public one, which could be the subject of a public prosecution, which the Commonwealth have not deemed proper to institute. The plaintiffs are therefore bound to make out two things: 1st, that this is a public nuisance; and, 2d, that the plaintiffs have sustained special damage, which if they do not prove, renders the first question immaterial. We do not think that the plaintiffs have, by the single witness examined by them, established that they have suffered an injury quite distinct from that of the public in general,

and of course upon that ground the decree (of dismissal) below should be affirmed." ?

So in Wisconsin it is held that an injunction will not lie, at 1 Cumberland Valley Railroad Co's steam railway company, constructed Appeal, 62 Penn. St. 218. 226. To in a street not occupied by the comthe same point, see also, Bigelow v. plainant. It was held not such a speHartford Bridge Co., 14 Conn. 565; cial injury to complainant as equity Sparhawk v. The Union Passenger would enjoin. But if there had been R. W. Co., 54 Penn. St. 401.

an unauthorized interference with lines 2 58 Penn. St. 252. And see Denver in actual operation, and one complain& Swansea Ry. Co. v. Denver City Ry. ant was building for the purposes of Co., supra. This was a bill by a & steam railway, it would afford horse railway company, having an ex- ground for an injunction: Ibid. clusive franchise in a city, against a

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