Lake Shore & Michigan Southern Ry. Co. v. New York, Chicago & St. Louis Ry. Co.

8 F. 858, 1881 U.S. App. LEXIS 2432

• Court: U.S. Circuit Court for the District of Western Pennsylvania
• Decided: September 5, 1881
• Status: Published

Opinions

Acheson, D. J.

At the late sitting of the circuit court at Erie, I heard and refused a motion for a preliminary injunction in this case. The importance of the controversy is such, however, that a reargument was allowed, and the case has been heard by the circuit judge and myself upon fuller proofs. Of these proofs, however, I may say that they consist in the main of ex parte affidavits, and in some particulars are less full than is desirable. For example, they afford little information as to the extent of the business done at Harbor Creek station. It is true, we have the opinions of respectable and intelligent witnesses as to the requirements of the plaintiff company 'at that point, but in matters of fact the affidavits qre deficient.

In respect to the plaintiff’s properties occupied, or proposed to be occupied, by the defendant at Twenty-mile Creek, Sixteen-mile Creek, the Brawley piece, and the gravel pit, we have had no difficulty in reaching a conclusion adverse to the plaintiff’s application.

As to the wood-yard at Moorhead’s, the case is not entirely clear. But as the answer and the affidavit of Mr. McGrath, the defendant’s superintendent of construction, (as we understand them,) declare that the defendant does not intend to take up or remove either of the plaintiff’s spur tracks at this place, or in any wise interfere with the plaintiff’s use thereof, we think that the present proofs do not make out such a case as calls for a preliminary injunction. At the final hearing, with all the evidence regularly taken before us, we can more intelligently and safely determine the rights of the parties.

With some hesitation we announce a similar conclusion in respect to the land at Harbor Creek station. I myself entertain serious doubt whether any portion of the plaintiff's land at this point is open to appropriation by the defendant. But, for lack of complete information, my mind has not reached a settled conviction. If the right of appropriation exists, it certainly ought to be exercised so as to avoid all unnecessary injury to the plaintiff. The defendant’s line, as located, divides the plaintiff’s property, cutting off a strip of 41 feet in width along Boynton’s line. If there is no engineering difficulty or other obstacle in the way, the defendant had better consider whether it ought not to shift its location down to Boynton’s line, and thus leave the plaintiff additional available space south of its southerly track.

Upon the whole case as now presented, and after a careful consideration thereof, the court is of opinion that the motion for a preliminary injunction should be denied. And it is so ordered.