Western North Carolina Railroad v. Georgia & North Carolina Railroad

88 N.C. 79

• Court: Supreme Court of North Carolina
• Decided: February 5, 1883
• Status: Published

Opinion

Smith, C. J.,

after stating the above. From the evidence it seems that the work of construction on the plaintiffs’ western extension of its road has not reached by many miles, nor is’it likely to reach for a long time to come, the locality of the gap.where the defendant company is at work, and whose work is interrupted by the restraining order, nor is the possession of it required for any present use of the plaintiffs.

Moreover, if we understand the operations there in progress, preparing the surface for the laying of a track, instead of being injurious, in case of an ultimate adjudication in favor of the plaintiffs’ complaint, it will ensue to their advantage, because it is in part the very same work the plaintiff company would have to do in preparation for laying its wider track. If it were to some extent an injury, the damage would not be irreparable, since the. proved solvency of the defendant company would insure adequate compensation.

In the other aspect of the case, the effect of the restraining order upon the defendant company, should its claim be held to be superior to the other, might be very injurious in interrupting the prosecution of another public enterprise, and entailing damages for which money might be a very inadequate compensation.

So then, the denial of the injunction now cannot hurt the plaintiff company; for its own work is not interfered with and its engineering surveys and estimates go on without interruption, and when an actual obstruction is met, if it occurs before the final trial of the case upon its merits, it will then be time for the plaintiffs to ask for the exercise of the restraining power of the court in order that its work may go on. It is at least unnecessary, if not premature, to ask for it so long in advance. If the purpose of asking for the intermediate injunction is to obtain the opinion of the court upon the question of priority of right to lay the.track upon and over the gap, of the contesting companies, we should refrain from giving it, since the motion is heard upon ex-parte evidence, without those safe guards which the law has provided, in requiring in most cases the personal presence of the witness and affording, in all, opportunities for cross-examination, conditions so important to the development of truth and detection of falsehood in trials before a jury, and under the rules that govern them.

We only proceed in the inquiry so far as to see that there is a reasonable claim and right sufficient to call for and authorize the exercise of the power possessed, to take care of a disputed fund in danger of being lost or impaired, or to prevent an irremediable threatened injury.

The facts of the present application do not bring it within the principle upon which a court of equity acts in affording such relief, nor do they warrant our intervention in the controversy at this stage of -its progress, and we leave it, where it should be left, to the determination of a jury.

These views are in consonance with judicial practice as established by our own adjudications, to some of which we refer in closing the opinion. Deep River Man. Co. v. Fox, 4 Ired. Eq., 61; Frizzle v. Patrick, 6 Jones’ Eq., 354; Thompson v. McNair, Phil. Eq., 121; McCormick v. Nixon, 83 N. C., 113; Dunkart v. Rinehart, 87 N. C., 224; Peebles v. Commissioners, 82 N. C., 385; Railroad v. Commissioners, Ibid, 259.

To the same effect are High on Injunctions, §§ 35, 417, 599; and Essex County v. Blair, 1 Stockton (N. J.), 635.

There is error in issuing the injunction under the circumstances* and the order therefore is reversed. Let this be certified.

Error. Reversed.